All indications are that it was a good day for human rights at the U.S. Supreme Court yesterday. As the curtain fell at the end of oral arguments in Dobbs v. Jackson Women's Health Organization, what promises to be a seminal ruling shattering the federal judicial imposition of abortion-on-demand seems imminent.
Let me preface by saying that I remain skeptical. I have written publicly before that I feel confident that there are two votes to overturn the embarrassing Roe v. Wade decision of 1973 on the Supreme Court. Justices Clarence Thomas and Samuel Alito have demonstrated a clear willingness to properly adjudicate so-called abortion rights for years. Outside of that, I remain unpersuaded that Chief Justice Roberts will tamper with his first love, the court's reputation, to make any landmark decision for human rights. And the three Trump appointees all remain unproven quantities on the topic in my estimation.
But Wednesday's oral arguments were anything but discouraging for those of us who believe the state should not fabricate a non-existent right to dismember babies in the womb.
Don't take my word for it. CNN's disgraced legal analyst Jeffrey Toobin affirmed as much:
And conservative scholar Ryan T. Anderson noted the rumblings from former court clerks said the same:
Not that any of this should be a surprise to someone who has not willfully donned blinders and ear plugs for the last three decades of the debate. The last major court challenge to Roe v. Wade came in the 1992 Planned Parenthood v Casey decision. That's almost 30 years ago. Stop and consider all that we have learned about fetal development, the fictional creation of a so-called moment of fetal "viability," fetal pain, and a host of other medical and scientific realities that were simply not known.
With as silly and flimsy as the Casey decision was, its defenders could at least say that there persisted a "mystery" about human development that made the decision far more philosophical and religious than scientific. That is simply not the case anymore, and that was glaringly apparent on Wednesday in Washington.
It's not so much that the attorneys advocating for the perpetuation of abortion-on-demand were inept, though they will undoubtedly be blamed personally if the decision is properly decided. It's simply that the weight of science, knowledge, morality, legality, and constitutionality bear down heavily on the side of life – a truth that was powerfully witnessed in the glaring inability of U.S. Solicitor General Elizabeth Prelogar to respond credibly to even the simplest questions from the bench.
First, the government's attorneys were humiliated by questions from Justice Alito regarding their position that Roe should be upheld since it was "settled" judicial precedent. Alito pointed to the obvious reality that a number of previous decisions of the court were later overturned, like the egregiously decided Plessy v Ferguson case (1896) that imposed the "separate but equal" doctrine on the states. In a stunning exchange, Alito asked,
"Would it not be sufficient to say, ‘That [Plessy] was an egregiously wrong decision on the day it was handed down, and now it should be overruled'?"
Prelogar acknowledged it was wrongly decided but refused to say it should have been overturned. That isn't defending racist segregation of the past simply in an effort to preserve abortion, but it's far too close to it.
But that was only the beginning. Prelogar and posse told Justice Amy Coney Barrett that Roe must be preserved because the burden of parenthood was an obstacle to success for women. Again, she told that to Amy Coney Barrett, a mother of seven, who has also succeeded in being named to a lifetime appointment on the United States Supreme Court.
As if that wasn't bad enough, in a moment that might have slipped by too many observers, the government's attorneys argued that half of the women seeking abortions were using contraception in the month they conceived. In other words, the attorneys arguing in favor of preserving abortion-on-demand acknowledged that the primary purpose of abortion in America is back-up birth control, thus undermining everything the Planned Parenthood lobby has lied about for years.
Again, all this happened not because the government's attorneys were inept or unprepared. It's that they were being asked to defend the indefensible. There's a reason that pro-choice politicians do not debate the topic with pro-life politicians. There's a reason pro-choice spokesmen do not debate the topic with pro-life spokesmen. There's a reason pro-choice activists refuse to engage the fundamental questions surrounding abortion and play only in the emotionally charged periphery. There's a reason that pro-choice majority courts have refused to hear legitimate legal debate over Roe's constitutionality for thirty years. And that reason was on full display Wednesday: the case for abortion rights has utterly collapsed.
Consider that even liberal justices Kagan and Breyer were largely silent, leaving the intellectually outmatched Sonia Sotomayor to impotently involve herself. Big mistake. Reminding several observers of a high school student who forgot to prepare for her presentation that day, Sotomayor bounced from the bumbling to the barbaric.
So even though I won't believe our Supreme Court will get this right until I see it for myself, here's why it was a good day for human rights on Wednesday: it is now a matter of public record that abortion legal precedent is a mishmash of absurdity and contradiction. If our culture continues attempting to build its future on the lifeless mass of its discarded and dismembered children, it won't be because it was confused about science, reason, logic, constitutionality, or morality. It will be for one simple reason:
We were too selfish to think beyond our own convenience, too cowardly to do what we knew was right, and too sinful to believe there would be any consequences for our crimes.