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Pro-abortion activists wielding signs from the Feminist Majority Foundation, for which Jay Leno has hosted at least nine fundraisers, next to pro-lifers holding signs from Students for Life of America Alex Wong / Getty Images

WASHINGTON (LifeSiteNews) — In a sane country with a Supreme Court committed to doing its job honestly, Dobbs v. Jackson Women’s Health Organization would be a done deal. There wouldn’t be any question that Mississippi’s ban on abortion at 15 weeks was perfectly constitutional, nor would there be any doubt of a complete reversal of the past half-century of pro-abortion judicial precedent.

At its most basic level, the ban is lawful for the same reason Roe v. Wade is not: because absolutely nothing in the Constitution requires states to permit any abortions, and the principles the Constitution does affirm weigh heavily against violating the right to life. Step one of understanding this is simply recognizing that not even Roe claimed to find a right to abort in the Constitution’s actual text, but in the “penumbras” (a fancy word for “inferences”) of other rights that Justice Harry Blackmun claims formed a general “right to privacy” from which abortion springs.

This has always been absurd for two reasons. First, because making such grand leaps from much narrower text runs contrary to the reason we have a Constitution and unelected judges in the first place. And second, because privacy for one’s self cannot logically encompass harm to someone else.

Perhaps sensing this inadequacy, Blackmun also famously acknowledged that this justification “of course, collapses” if the fetus is established to be “a ‘person’ within the language and meaning of the Fourteenth Amendment.” Of course, he and the Roe majority got around that by concluding the fetus did not qualify as a constitutional person, based on other constitutional uses of the word “person” applying only postnatally and the “far freer” nature of abortion law “throughout the major portion of the 19th century.”

But he was wrong then, and is, if anything, more wrong today. As a matter of biological fact, there is no serious question that the fetus is a living human being from the earliest moments of his or her existence. And as attorney Josh Craddock has exhaustively shown, the Constitution was built on a legal tradition which recognized that personhood exists before birth (with the “quickening” line a mere evidentiary standard rooted in limited medical knowledge of the time, not a moral statement about worth attaching to developmental stage).

“By the time of the Fourteenth Amendment’s adoption [in 1868], ‘nearly every state had criminal legislation proscribing abortion,’ and most of these statutes were classified among ‘offenses against the person,’” Craddock notes. Further, the Fourteenth Amendment’s drafters and sponsors, including Sen. Jacob Howard and Reps. Thaddeus Stevens and John Bingham, expressly declared that its promise of equal protection would apply not merely to those whose personhood had been previously recognized, but to, in Bingham’s words, “any human being.”

None of the above would be controversial in a sane, serious legal atmosphere, and one of the reasons why is that more than a few pro-abortion legal scholars themselves know better, as compiled by the Washington Examiner’s Timothy Carney:

Roe, I believe, would have been more acceptable as a judicial decision if it had not gone beyond a ruling on the extreme statute before the court. … Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict. — U.S. Supreme Court Justice Ruth Bader Ginsburg

As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible…A constitutional right to privacy broad enough to include abortion has no meaningful foundation in constitutional text, history, or precedent – at least, it does not if those sources are fairly described and reasonably faithfully followed. — former Blackmun clerk Edward Lazarus

One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found. — Laurence Tribe of Harvard Law School

Roe] is not constitutional law and gives almost no sense of an obligation to try to be…What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure. — John Hart Ely of Yale, Harvard, and Stanford Law Schools

That’s also why Justice Sonia Sotomayor found herself defending Roe expressly on the grounds that dumping Roe would mean the Court would have to similarly dump “so much that’s not in the Constitution.” Well … yeah. That’s kind of your job, remember?

Lastly, it should be deeply telling that virtually every argument for keeping Roe sidesteps the question of whether Roe is, y’know, correct. Instead we’re urged to give it a pass for the sake of “stability” (despite abortion being the most heated policy dispute in the nation), “confidence in the Court” (which is even more absurd, considering millions of people will despise the court no matter what it does here), or stare decisis, the legal principle that a ruling’s status as precedent grants it weight independent of its innate merits.

“In my view, the Court’s typical formulation of the stare decisis standard does not comport with our judicial duty under Article III because it elevates demonstrably erroneous decisions — meaning decisions outside the realm of permissible interpretation — over the text of the Constitution and other duly enacted federal law,” Justice Clarence Thomas wrote in 2019. Instead, he argued, the doctrine’s modern understanding exacerbates judges’ temptation to substitute their personal desires for the law “by giving the venire of respectability to our continued application of demonstrably incorrect precedents.” Indeed.

But again, all of the above is what we would expect in a sane country with a Supreme Court committed to doing its job honestly. With the Supreme Court we actually have here in the real world, however, justices frequently make decisions they know are wrong based on other considerations: personal ideology, partisan politics, personal or institutional optics, you name it.

So while there’s no question that Roe’s legacy should be overturned, there’s still every question whether it will be. And we’re not going to find out until June. Between now and then, let’s commit ourselves to loudly and persistently reminding the justices that we expect them to put the truth and the Constitution above all else.

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Calvin Freiburger is a Wisconsin-based conservative writer and 2011 graduate of Hillsdale College. His commentary and analysis have been featured on NewsReal Blog, Live Action, and various other conservative websites. Before joining LifeSiteNews, he spent two years in Washington, DC, working to build support for the Life at Conception Act with the National Pro-Life Alliance, then worked a year and a half as assistant editor of You can follow him on Twitter @CalFreiburger, and check out his Substack: