The New York Times got the story wrong from the very beginning. “The Supreme Court overruled today all state laws that prohibit or restrict a woman’s right to obtain an abortion during her first three months of pregnancy,” its front page reported on January 23, 1973. “The vote was 7–2,” the Times continued.
In a historic resolution of a fiercely controversial issue, the Court drafted a new set of national guidelines that will result in broadly liberalized abortion laws in 46 states but will not abolish restrictions altogether.
What the Supreme Court had actually done, through the combined effect of Roe v. Wade and its companion case, Doe v. Bolton, was make abortion legal at any stage of pregnancy for any reason, which is a considerably more liberal policy than that encoded in the law of any state or supported by public opinion then or now. The next day the Times ran an editorial that repeated both the three-months spin and the news story’s implicit prediction: “The Court’s verdict on abortion provides a sound foundation for a final and reasonable resolution of a debate that has divided America too long.”
Nineteen years after Roe, the Court confronted its frustrating failure to resolve the issue in Casey v. Planned Parenthood. The Court explained that when it makes a ruling like Roe, it “calls the contending sides of a national controversy to end their national division.”
Yet still the controversy endures. No matter how many times pro-lifers have been authoritatively invited to put down their placards and accept the slaughter of innocent unborn children as one of our founding ideals, they have refused — sometimes patiently and politely, sometimes angrily, always firmly.
Now 40 years have passed since Roe, and nobody pretends that our division is ending. Time just ran a cover story declaring that “abortion-rights activists” have “been losing ever since” 1973. Nearly half of Americans think of themselves as pro-life, often a larger percentage than considers itself “pro-choice.” State governments are passing what protections for unborn children they can, given the Court’s hostility. The number of abortions has been dropping, if slowly, for years.
Pro-lifers are not winning: The suggestion is obscene. Nearly 56 million human beings have been killed in the womb since Roe, a toll that rises another million each year. The pro-life movement’s achievement is a witness, not a victory. We have maintained resistance to an injustice rather than vanquished it.
But neither have we suffered a final defeat, nor will we so long as Americans remain who are willing to stand for the country’s true founding principle: that all men are created equal by their Creator; that all of them have the right to life, liberty, and the pursuit of happiness, whatever their creed or station, their race or their place, their might or their weakness. The Supreme Court has been a formidable enemy of this principle for much of our history. It struck down laws against slavery in an attempt to settle that issue and call the contending sides to end a national division. It blocked congressional attempts to protect civil rights following the Civil War. Pro-lifers who are tempted to despair should remember that Plessy v. Ferguson was on the books for even longer than Roe has been.
Roe has always been bad constitutional law, something that even honest supporters of the abortion license admitted they could not plausibly find in the Constitution. The Casey Court that portentously affirmed Roe studiously avoided saying that it follows from the Constitution. Abortion itself seems to inspire the same kind of bobbing and weaving. (Imagine an NRA that committed itself to the absolute defense of “the right to own” but could not bear to give its verb an object.)
Over on the other side of the debate, we labor under no such handicaps. We know that whether we will live to see victory over abortion is not in our hands. We also know that standing for truth, for mercy, and for justice is always within our power, and so we will keep doing it for as long as the evil endures.