By Liam Gibson

The United States continues to be gripped by the fallout from the leak of a draft ruling from the Supreme Court that indicates that the reversal of the 1973 ruling of Roe vs Wade could be imminent.

Last weekend, pro-life pregnancy centres, churches and the homes of conservative Supreme Court justices were targeted for protests, vandalism and threats of violence. Nevertheless, an attempt on Wednesday to enshrine abortion on demand in federal law was defeated when the Senate rejected the so-called Women's Health Protection Act by 51 votes to 49.

Most of the media coverage of this story has been far from accurate and some seem intended to provoke a predictable backlash from the pro-abortion activists now engaged in a campaign of intimidation. But despite the hype and widespread hysteria, the repeal of Roe vs Wade will not mean the end of abortion in the US. So, has the significance of Roe vs Wade been exaggerated?

A constitutional right or a lethal act?

There can be no doubt that when Roe is finally overturned it will represent the most important victory for the pro-life cause for some time.

Unlike in Britain, abortion in the US was legalised, not through the legislature, but by the courts. Overnight, abortion went from being a criminal offence to a constitutional right. Not only did the court strike down the Texas law challenged by Norma McCorvey (Jane Roe) but it nullified all pro-life laws right across America.[1] No state would be allowed to enact a law that could place an obstacle in the way of a woman wishing to obtain an abortion.[2] Whatever her reason, whatever the stage of her pregnancy, she had a constitutional right to abort her baby.

The decision of whether to bear a child, the court concluded, was a private matter and the state had no right to interfere with that decision by prohibiting abortion.

To create a right to abortion, the judges had to first create a right to privacy, since privacy was not mentioned in the text of the US Constitution. Fortunately, the Supreme Court had to overcome this problem some years before when it claimed that the right to privacy could be found within the “penumbras, formed by emanations” of the Bill of Rights[3] – which is another way of saying that the right to privacy existed because the court said it existed.

Of course, the right to private and family life is explicitly recognised in Article 8 of the European Convention on Human Rights. Few people, however, would suggest that it is simply a private matter when parents subject their children to acts of violence, and after all, what is abortion but a lethal act of violence directed at an unborn child? 

“A tower built on sand”

Roe vs Wade represented the total victory of the abortion lobby, and yet it was never really settled law. In the 49 years since Roe vs Wade, several states attempted to reintroduce limits on abortion or legal protection for unborn children. In 1992, Pennsylvania passed legislation requiring a 24-hour waiting period, parental consent for underage girls to obtain abortion, and a requirement for married women to notify their husbands about an abortion.

Although the Supreme Court allowed some restrictions on abortion, it later reaffirmed the central purpose of Roe vs Wade. Later, the emphasis shifted from vague notions of privacy to vague notions of liberty. In a judgement written by Justice Anthony Kennedy, who had previously been pro-life but had unexpectedly switched sides, he wrote:

“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”[4]

This was mocked by Justice Antonin Scalia as the “sweet-mystery-of-life” passage. The tortured semantics and twisted logic used to justify abortion have led the Supreme Court not only to deny the humanity of children before birth, but since Roe, its retreat from reality has also resulted in the redefinition of marriage and ultimately – in the case of Ketanji Brown Jackson, the latest appointee to the court – and an inability to define a woman.

But reality cannot be denied forever. The decision of Roe vs Wade is a tower built on sand. Sooner or later, it will be overturned, and when it falls, its collapse will send shockwaves across the globe. When that happens, however, the abortion battle in the US and beyond is likely only to intensify, and as recent events have demonstrated, it may become increasingly bitter and violent.