What did the US Supreme Court really say about abortion?

Our shallowness in public discourse remains a grave threat.

The reaction to news from the US has demonstrated an unwillingness to think about public issues in any meaningful way.

George Orwell, in his novel 1984, posited a future state in which by means of the control of language, social overlords, ruling by the ideology of ‘Ingsoc’, would train society to avoid even the act of thinking against the state, which would become criminal:

“Crimestop means the faculty of stopping short, as though by instinct, at the threshold of any dangerous thought. It includes the power of not grasping analogies, of failing to perceive logical errors, of misunderstanding the simplest arguments if they are inimical to Ingsoc, and of being bored or repelled by any train of thought which is capable of leading in a heretical direction. Crimestop, in short, means protective stupidity.”

When anything which threatens state propaganda - questioning of vaccines, of abortion, of Obama, of climate change, of gay marriage - is thought out loud, you will notice a glazing over in the eyes of most ‘normal’ people. They have trained to be bored by the most pressing issues of our time. This boredom is the protection against thinking, against having to face the notion that something has gone terribly and darkly wrong in our apparently progressive and enlightened age - that the light of this age might just be the façade for something very, very dark.

We have seen this phenomenon most recently in abortion. The nicest people you know will be offended by the slightest questioning of unrestricted abortion. This practice is almost the great marker of our modern age. If you were to go back a hundred years and tell world leaders as well as everyday people that countries like the US would end the lives of unborn babies by the millions, they would not have comprehended the very words you are saying.

Instead of allowing questioning or debate of these issues, everyday people find themselves repeating slogans and joining in on what the herd says and does. This was made very evident with the mass reaction to the news that the Supreme Court of the US has ruled that abortion laws should be made by elected representatives and not by nine judges sitting at the court.

Leave aside the substance of the issue for a moment. What does it tell you that such a thing could cause people around the world to protest against an imaginary impending Christian theocracy in the US?

In order to demonstrate the level of madness we now face in our modern world, I would like to show to you the reality of what the Court ruled as opposed to the bizarre and unthinking reaction to that ruling.

Most people like me would find their eyes glazing over as they read this, as though the modern trend to abort the unborn by the tens of millions each year globally was of no interest.

But perhaps you will remain curious.

It remains undeniable that the US sets the tone for the rest of the world.

Cultures in large swathes of the planet adopt reflexively the attitudes of Hollywood and the philosophies of Harvard.

The US remains the military superpower of the world and the largest economy in the world.

It is thus useful to understand the politics at the heart of this imperial colossus.

All around the world, there has been strong reaction to news that the US Supreme Court has overturned the right of a woman to have an abortion. There has been shock and horror expressed by a wide range of people, from your liberal, feminist friend on Facebook to the so-called Conservative leader, Boris Johnson. Adoptive parents have been mocked. Pregnancy crisis centers attacked. nd late-term abortion involving dismemberment celebrated.

First of all, this shock and horror from the liberal, pro-abortion perspective is misplaced and overblown. The US Supreme Court has simply placed US abortion policy more in line with that of the rest of the western world.

In every other country that allows abortion, laws were passed by elected representatives to that end. The US never did that. In 1973, in the case known as Roe v Wade, the US Supreme Court simply declared that abortion was a right guaranteed by the US Constitution. (They would do the same for gay marriage.)

It is instructive at this point to recall how South Africa legalized abortion in 1996. The ANC under Mandela forbade MPs to vote according to their conscience and thus 100 of them simply stayed away from parliament for the vote.

Critics of the 1973 ruling in the US have long made the obvious point - there is zero mention of abortion in the US Constitution. Thus, how can it be a constitutional right? If anything, the Fourteenth Amendment of the Constitution could be interpreted as forbidding abortion insofar as it guarantees the right to life unless due process of law has led to a penalty of death:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

(Bizarrely, it was this amendment which was previously used to justify abortion. How judges did so is discussed below.)

But the five judges appointed by Donald Trump (who appointed three of the five) and the two George Bushes (one each) did not even go that far. They simply ruled that since abortion is not mentioned by the Constitution, abortion should not be regulated by court decisions but by elected representatives who can pass laws to that effect.

In short, there is nothing stopping any state in the US from either allowing abortion right until delivery or from banning it completely. Some have complained then that abortion will be radically restricted in conservative states. This may be the case - but that is how democracy, for better or worse, tends to work.

Australia has a similar federal principle on abortion, with different states having different restrictions. And of course there is nothing stopping the US Congress passing a law that makes abortion legal in every state with no restrictions. It is just unlikely that elected representatives would do that.

Personally, I think the judges should have gone further, defining the unborn as persons with a right to life. For what else are they but persons? If they are not persons, when do they become persons? As they leave the birth canal - or when they go home with the mother and are away from doctors who can perform an abortion?

(This is basically the position of Barack Obama who long supported laws which would allow for the ‘abortion’ of babies who had survived abortion and been born alive. Of course, most would rightfully recognize this as barbaric but on some level Obama is simply being consistent - what rationally allows a doctor to kill a baby in the womb but not just outside the womb?)

Here I must remind you that even the Catholic Church, which forbids abortion for any reason, does not forbid abortion from taking place within the so-called ‘double effect’ - in which harms may be considered morally permissible if they are the unintended consequence of intending something good. In other words, if some medical procedure to save the life of a mother may bring about in a secondary fashion an abortion, this can be considered permissible. This is the same moral principle which allows for killing in self-defense.

But: these situations are incredibly rare in the case of abortion. Former U.S. surgeon general C. Everett Koop famously stated:

In my thirty-six years of pediatric surgery I have never known of one instance where the child had to be aborted to save the mother’s life. . . . If toward the end of the pregnancy complications arise that threaten the mother’s health, [her obstetrician] will either induce labor or perform a Caesarian section. His intention is to save the life of both the mother and the baby. . . . The baby’s life is never willfully destroyed because the mother’s life is in danger.

To return to the Supreme Court decision, it is also important to note that the abortion regime in most of the US is far more liberal than Europe, which usually is to the left of the US on most social issues.

The US is one of only seven countries in the world that allows elective abortions after twenty weeks from conception - the others being North Korea, China, Singapore, Vietnam, Canada, and the Netherlands.

The reason the Court revisited the issue is because the state of Mississippi has passed a law banning abortion after fifteen weeks - which defies the 1973 ruling known as Roe v Wade which guaranteed abortion as a right until viability of the baby outside the womb - of course, viability differs in different circumstances so that in itself never made sense. But what is striking is that the Mississippi law would simply bring that state in line with the vast majority of European countries.

The Supreme Court ruling itself makes this abundantly clear:

The law at issue in this case, Mississippi’s Gestational Age Act, contains this central provision: “Except in a medical emergency or in the case of a severe fetal abnormality, a person shall not intentionally or knowingly perform or induce an abortion of an unborn human being if the probable gestational age of the unborn human being has been determined to be greater than fifteen weeks.” To support this Act, the legislature made a series of factual findings. It began by noting that, at the time of enactment, only six countries besides the United States “permit[ted] non-therapeutic or elective abortion-on-demand after the twentieth week of gestation.” The legislature then found that at 5 or 6 weeks’ gestational age an “unborn human being’s heart begins beating”; at 8 weeks the “unborn human being begins to move about in the womb”; at 9 weeks “all basic physiological functions are present”; at 10 weeks “vital organs begin to function,” and “[h]air, fingernails, and toenails . . . begin to form”; at 11 weeks “an unborn human being’s diaphragm is developing,” and he or she may “move about freely in the womb”; and at 12 weeks the “unborn human being” has “taken on ‘the human form’ in all relevant respects.” It found that most abortions after 15 weeks employ “dilation and evacuation procedures which involve the use of surgical instruments to crush and tear the unborn child,” and it concluded that the “intentional commitment of such acts for non-therapeutic or elective reasons is a barbaric practice, dangerous for the maternal patient, and demeaning to the medical profession.”

(Thus when Green Day singer, Billie Joe Armstrong, declared to an English audience after the news broke that he wanted to escape to the UK away from the Christian right-wing in the US, he was demonstrating deep ignorance. Elective abortion in the UK is only allowed up until 12 weeks. It is stricter than Mississippi.)

In short, because a state wanted to bring abortion policy in line with liberal European countries, the Supreme Court revisited the precedent of deeming abortion as a constitutional right, and, seeing no mention of abortion in that Constitution, declared the precedent fatally flawed and that the question of abortion must be returned to democratically elected legislatures, in each state, and at the federal level. This is exactly the situation in the European Union.

In a very real sense, the Supreme Court of the US declared itself neutral on the issue. Liberals bemoaning some kind of theocratic patriarchy coming to America are perpetuating the modern phenomenon of being emotionally invested in politics without bothering to do much thinking. It was this same emotional investment which allowed irrational lockdowns and mass vaccination to occur, and which is pushing the west into a confrontation with Russia on its own borders.

It is worthwhile to see exactly how the Court came to its conclusion, to see just how moderate its reasoning was, and just how crazed public discourse has become.

It must be remembered that it was five of the nine judges who voted to overturn the precedent, so when I refer to the Court's decision, I am referring to the majority opinion, written by Associate Justice Samuel Alito appointed by George W. Bush. The Chief Justice, John Roberts, also appointed by George W. Bush, joined the other five in retaining the Mississippi law but indicated he would not have overturned Roe v Wade.

Alito wrote that one of the chief problems of the 1973 decision was that it 'abruptly ended that political process’ and ‘effectively struck down the abortion laws of every single State.’

His decision is in essence rather simple:

We hold that Roe and Casey [a later Court decision which reaffirmed Roe v Wade] must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment.

I have already quoted that clause to you above. Let me place it here again:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

As is plainly evident, there is no mention of abortion there.

Previously, judges have held that the Due Process Clause does grant rights not mentioned explicitly and that these rights include abortion.

Alito addresses this in his ruling. Yes, some rights may not be explicitly mentioned but any rights deemed to be conferred must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Otherwise there is no limiting factor to the rights which must be granted citizens and the law can have no meaning.

Alito continues:

The right to abortion does not fall within this category. Until the latter part of the 20th century, such a right was entirely unknown in American law. Indeed, when the Fourteenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy. The abortion right is also critically different from any other right that this Court has held to fall within the Fourteenth Amendment’s protection of “liberty.” Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called “fetal life” and what the law now before us describes as an “unborn human being.”

Therefore, he concludes:

It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives. The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting. That is what the Constitution and the rule of law demand. And in this case, 26 States have expressly asked this Court to overrule Roe and Casey and allow the States to regulate or prohibit pre-viability abortions.

Alito then looks at what the prior justification was for abortion being considered a right - namely that it formed part of the “liberty” granted in the Constitution or that it fell under a right to “privacy”.

But that is simply to vague for a Court to make such a bold decision. How does one get from privacy and liberty to the specific question of abortion? You cannot, because if you do make that connection, liberty and privacy become a monster to justify almost anything.

Finally, Alito quotes the JFK-appointed judge, Byron White who dissented from the original ruling in 1973, naming it an “exercise of raw judicial power”:

It is worth also briefly looking at the supporting opinion to the ruling written by Clarence Thomas, who wrote:

I join the opinion of the Court because it correctly holds that there is no constitutional right to abortion. Respondents invoke one source for that right: the Fourteenth Amendment’s guarantee that no State shall “deprive any person of life, liberty, or property without due process of law.” The Court well explains why, under our substantive due process precedents, the purported right to abortion is not a form of “liberty” protected by the Due Process Clause. Such a right is neither “deeply rooted in this Nation’s history and tradition” nor “implicit in the concept of ordered liberty.” The idea that the Framers of the Fourteenth Amendment understood the Due Process Clause to protect a right to abortion is farcical.

Thomas goes on to point out that the guarantee to due process before life, liberty, or property is interfered with by the state cannot logically grant a substantive or positive right to an expectant mother to terminate the unborn baby. Process is granted, not the human right to have a doctor reach into the womb and perform an abortion. That is absurd on the face of it.

The resolution of this case is thus straightforward. Because the Due Process Clause does not secure any substantive rights, it does not secure a right to abortion.

Thomas also points that granting the right to gay marriage by the same reasoning is also fatally flawed.

In short, what has taken place in America is by no means radical.

How can it be radical for America simply to return to the position of European states, that laws must be passed to regulate abortion, and that to enshrine it as a human right cannot be justified by vague appeals to parts of the Constitution that have nothing to do with abortion or any ‘medical’ procedure?

Ask yourself now - how does this all warrant outrage, women marching with bloody baby dolls, and churches being attacked?

Of course I will not deny this is a victory for opponents of abortion. Abortion as a human right was a massive obstacle.

But with slavery, work now lies ahead to pass laws restricting and banning abortion, to return the world to the moral norms which governed the West for centuries prior to the twentieth.

And to be sure, it is not clear that abortions will be greatly reduced in the aftermath of this ruling anyway. The majority of abortions take place in liberal states in the US where there will not be restrictions placed on abortion for the foreseeable future. And even in conservative states, as seen in Mississippi, abortions before fifteen or ten weeks, or for the ‘safety of the mother’ (a much abused exception), will continue.

No, the world’s superpower will continue to perform at least over 500 000 abortions a year.

And the callousness of that, the bizarre celebration of it, will continue to stain the world.

And before you criticize this criticism of abortion, I would suggest you need to read this thread on Twitter that shows visually what abortion does:

Lila Rose @LilaGraceRose

BREAKING: Infant Bodies May Indicate Infanticide After Attempted Abortions The bodies of at least 5 preborn children, some of whom may have been born alive and then killed, have been discovered in Washington DC. Prepare for graphic imagery ahead in this critical thread