Humanize From Discovery Institute's Center on Human Exceptionalism

The Supreme Court and American Independence from Abortion

The U.S. Supreme Court is once again turning to the issue of abortion, having decided to consider Dobbs v. Jackson Women’s Health Organization later this year. At the heart of the case is a Mississippi law that would protect human life at 15 weeks from conception, the moment of sperm-egg fusion at which science and medicine recognize that a new and distinct human life comes into existence.

The Supreme Court won’t hear the Mississippi case until this fall, and America likely won’t learn of their decision until next summer. In the meantime, we’ll be left to speculate.

Ever since the Supreme Court created abortion rights out of thin air with its 1973 ruling in Roe v. Wade, it has been confronted in one form or another by the issue of abortion. After a half century of increasing national fury, it’s difficult to imagine how the Court will ever truly get away from the business of abortion. Neither the status quo, nor the status quo ante, is likely to do the trick.

President Joe Biden claimed to oppose abortion for the entirety of his political life until he entered the White House early this year, when he decided that American taxpayers should pay for it and expand the markets of abortion businesses both at home and abroad. In recent politics, betrayals and hypocrisies of this scale once required talk of having “evolved” on the issue. No one has been shameless enough to suggest that Biden’s embrace of abortion is the result of his “evolution” on the issue.

What we’ve witnessed in these first months of the Biden presidency is a return to a base politics. “Do whatever you have the power to do,” this approach dictates, “if you believe you can shape the people to your purposes.”

The law is a teacher, and President Biden wants the law to teach that abortion is good. Although few Americans believe that about abortion, the President and his allies correctly perceive that law shapes culture. And the American people, they believe, can be made to like it.

In Roe, the Court proved that it possessed the power to radically engineer culture—to teach that abortion was both permissible and even necessary. President Biden is simply following that logic to its conclusion that what is permissible, and even necessary, deserves public support.

It’s a profoundly cynical attitude, but it’s nonetheless understandable in this sense: more or less since Roe, the Supreme Court has signaled that abortion is as American as apple pie. The stakes of the Supreme Court’s deliberations on Mississippi’s 15-week law are therefore monumental, because their decision could be the end of that essentially “apple pie” attitude.

It’s possible that we are stuck with the violent way of life that the Supreme Court first taught. It’s possible that Americans pliantly accept a learned dependence upon abortion. It’s possible that America cannot unring the bell of Roe and abortion. It’s possible, but I don’t believe it.

Supreme Court Justice Clarence Thomas has been ringing the bell of common sense, and the clarity of its tolling overpowers the noise of Roe and the moral static of our abortion regime. It sounds like this:

“[O]ur abortion jurisprudence has spiraled out of control.”

“[W]e are confronted with decisions requiring States to allow abortion via live dismemberment. None of these decisions is supported by the text of the Constitution.”

“[We] created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text.”

“Our abortion precedents are grievously wrong and should be overruled.”

“[W]e have neither jurisdiction nor constitutional authority…”

“The Constitution does not constrain the States’ ability to regulate or even prohibit abortion.”

“This Court created the right to abortion… [and a]s the origins of this jurisprudence readily demonstrate, the putative right to abortion is a creation that should be undone.”

“Roe is grievously wrong for many reasons, but the most fundamental is that its core holding—that the Constitution protects a woman’s right to abort her unborn child—finds no support in the text of the Fourteenth Amendment.”

“[W]e can reconcile neither Roe nor its progeny with the text of our Constitution…”

“[W]e cannot continue blinking the reality of what this court has wrought.”

Tom Shakely

Research Fellow, Center on Human Exceptionalism
Tom Shakely is a Research Fellow with Discovery Institute's Center on Human Exceptionalism where he focuses on human dignity, human rights, and law and policy. Tom has spoken on human rights issues at the United Nations, testified to the District of Columbia City Council on conscience rights, and advised on testimony before the U.S. Senate Judiciary Committee and U.S. House of Representatives.