Abortion Was Not the Real Issue in Roe v. Wade
Jun 18, 2021 by David Fowler
Last month the U.S. Supreme Court decided to hear a case involving Mississippi’s ban on all elective abortion from and after fifteen weeks gestation. The options before the Court in terms of whether to affirm Roe v. Wade and Planned Parenthood v. Casey are limited. But the key for conservatives isn’t just the reversal of Roe, but the grounds on which it might be reversed. Seeing Roe and Casey only in terms of abortion is a huge mistake.
What the Supreme Court Has Been Up to From Roe to the Present.
Attorney Jeff Shafer, who will speak on “The Fundamentals of the Constitution” on July 13th in Nashville, made the following observation when speaking at Restoring the Vision in May:
The Supreme Court’s role over the last five decades or so, in progressively adopting and advancing within in our law an inhuman philosophy and foisting it upon the nation by means of a corrupt innovations that are proceeding under the guise of ‘Constitutional interpretations,’ entails a continuing defiance of creation and of our human nature, our imago dei, serving as well as an assault on our community which is itself founded on the marital family.
Let me flesh this out.
What the Fundamental Issue Was in Roe.
Mr. Shafer was saying that Roe v. Wade (48 years ago) was not really so much about abortion as about what it means to be “person,” and consequently, about the meaning of various relationships between and among persons.
In Roe, “person” in the Fourteenth Amendment’s Due Process Clause no longer had an objective, public meaning rooted in a creational reality resident in a kind of being, viz. human. That is why an unborn person could be killed. But there are other consequences I had overlooked.
When the unborn is not a person, the pregnant woman is not carrying a “child” until she decides she wants to be a mother by completing the gestational cycle (that’s why “fetus” is the preferred term!). That necessarily means a pregnant woman is not a “mother” until she decides she wants to be. Being pregnant does not constitute one a mother.
Presto, the objective, God-given creational categories of “person,” “child,” “mother,” and “motherhood” are all now only a matter of private, personal meaning.
That is exactly what Heather Shumaker of the National Women’s Law Center said to the Tennessee Senate’s Judiciary Committee during abortion hearings in August 2019. When asked when the “fetus had any rights,” she said, “I think that is for the woman to determine.” Objective public meaning is kaput.
The Expanding Consequences of Roe
Roe cannot be seen as being only about abortion and the killing of an unborn child, which has been the focus of the pro-life community for the last 48 years. Rather, it is something far more more sinister.
Divorcing the constitutional meaning of person from any objective reality was the constitutional and theological predicate for same-sex marriage and the current transgender movement within law. These latter two changes are now obliterating the understanding of what makes one a parent—is it tied to biology or strictly functional duties carried out by an adult with respect to a minor?
The obliteration of motherhood in Roe has now come full circle in the courts—the obliteration of the objective biological category of parent.
Why the Reasons Given for Reversing Roe Are So Important
Reversal of Roe only on the grounds that the legal standard of “fetal viability” in Casey is not workable or on some change in a practical or pragmatic ground given at the time for Roe’s justification will not address the fundamental problem of an unmoored human anthropology.
Failure to address the anthropological problem—what constitutes a “person”—will leave all other issues that are dependent on an understanding of what it means to be a person free to run wild.
Putting this bigger issue before the Court through the Ninth Amendment is the focus of the friend-of-the-court brief I will be submitting to the U.S. Supreme Court next month in connection with this case.
The brief describes the larger problem like this: “As law is unavoidably pedagogical, the severe distortion of the human person in constitutional caselaw invites systemic effects well beyond the troubled context of abortion.”
Though reversal of Roe on any ground would be welcome, those concerned with the future know that a mere pragmatic reversal will do nothing to save our law or constitution from further deterioration into subjectivism and do little to slow our cultural slide into human meaninglessness.
If you would like to contribute to the cost of the Supreme Court brief, you can do so at this link.
David Fowler is an attorney and served in the Tennessee state Senate for 12 years before joining FACT as President in 2006.