In an article for the National Review, M. Edward Whelan III, President of the Ethics and Public Policy Center, made the argument today that the pro-abortion rights U.S. Supreme Court decision Roe v. Wade is the “Dredd Scott” decision of our age. Both cases, he wrote, invoke “substantive due process” to deny American citizens the authority to “protect the basic rights of an entire class of human beings.”
The 1857 Dredd Scott v. Sandford decision ruled that a prohibition on slavery could not apply to slave owners who brought their slaves into free territory. This ruling helped precipitate the U.S. Civil War.
The 1973 decision Roe v. Wade, Whelan explained, imposed permissive abortion laws nationwide. January 22, 2009 marked the 36th anniversary of the ruling.
He noted that the Dredd Scott decision ruled that a prohibition on slavery “could hardly be dignified with the name of due process.”
“Thus were discarded the efforts of the people, through their representatives, to resolve politically and peacefully the greatest moral issue of their age,” Whelan wrote.
“Roe is the Dredd Scott of our age. Like few other Supreme Court cases in our nation’s history, Roe is not merely patently wrong but also fundamentally hostile to core precepts of American government and citizenship,” he argued.
“Roe is a lawless power grab by the Supreme Court, an unconstitutional act of aggression by the Court against the political branches and the American people. Roe prevents all Americans from working together, through an ongoing process of peaceful and vigorous persuasion, to establish and revise the policies on abortion governing our respective states.”
The Roe v. Wade decision, he charged, imposes on all Americans “a radical regime of unrestricted abortion for any reason all the way up to viability.”
“Sloppy language” in the predominant reading of Roe v. Wade’s companion case, Doe v. Bolton, leaves abortion “essentially unrestricted even in the period from viability until birth.”
Whelan argued that Roe v. Wade fuels “endless litigation” as “pro-abortion extremists” challenge minor abortion-related measures enacted by state legislatures despite such laws being “overwhelmingly” favored by the public. He said these contested measures include those requiring informed consent, parental involvement in the case of a minor who seeks an abortion, and partial-birth abortion bans.
He further argued that Roe v. Wade “disenfranchises” those millions of Americans who believe the “unalienable right to life” warrants “significant governmental protection of the lives of unborn human beings.”
“So long as Americans remain Americans—so long, that is, as they remain faithful to the foundational principles of this country—I believe that the American body politic will never accept Roe.”
A 2007 study sponsored by the Ethics and Public Policy Center and the Judicial Confirmation Network found that Americans were opposed to overturning Roe v. Wade 55 to 34 percent. However, the survey found that Americans were also ignorant about how Roe v. Wade functions in practice.
When educated about the permissive mandates of Roe v. Wade, survey respondents then favored overturning Roe v. Wade by 48 to 43 percent.
Noting a difference of opinion on abortion, Whelan concluded his National Review essay:
“I respectfully submit… it is well past time for all Americans, no matter what their views on abortion, to recognize that the Court-imposed abortion regime should be dismantled and the issue of abortion should be returned to its rightful place in the democratic political process.”
Asked by CNA about the argument of Democratic-leaning Catholics that the legal battle to overturn abortion laws should be abandoned in favor of a "common ground" that would reduce abortions via social policies, Whelan said:
"Genuine pro-lifers have long recognized the need both to provide legal protection to the unborn and to provide support to mothers facing unwelcome pregnancies. There's no reason not to pursue both goals. The policies that President Obama has embraced -- including, for example, repeal of the Hyde Amendment -- would instead result in a dramatic increase in the number of abortions."