Instead of settling the abortion issue, the court's ruling initiated a Forty Years' War that continues to this day. Is there any great issue in American law that is less settled, or more unsettling, than Roe v. Wade? If so, it would be hard to think of one.
Even the most fervent fans of abortion admit that today their cause is on the wane, that they've lost the moral initiative in this struggle to win the minds and hearts of the American people. And are losing more of us every day.
To quote Frances Kissling, former president of Catholics for Choice, who now realizes her cause is in disarray, her side's "arguments may have worked in the 1970s, but today they are failing us. ... The 'pro-choice' brand has eroded considerably. ... We can no longer pretend that the fetus is invisible. ... It may not have a right to life, and its value may not be equal to that of the pregnant woman, but ending the life of a fetus is not a morally insignificant event."
Nothing so testifies to the ever growing strength of pro-life sentiment like such testimonials from the other side of this issue.
After some 40 years in the wilderness that this contentious debate has become, the momentum has shifted. Just since 2010, some 32 states have adopted more than 100 pro-life laws. Among them is one here in Arkansas, which is now being challenged in court, that bans abortions without a good medical reason after 12 weeks of the pregnancy.
Why this sea change in public opinion over the past four decades? Has the American conscience been aroused at last? Does it stir even among judges and law professors?
My theory is that neither law nor conscience explains this shift, but science. According to Roe, abortions for whatever reasons (or none at all) are permissible to the point of "viability," a legal rather than scientific term. And that point keeps being pushed back further and further till one day it will surely be recognized, as the biology texts have long informed us, that life begins at conception.
It is Roe v. Wade, the Supreme Court's own malformed baby, that now proves unviable. With every scientific advance -- sonograms, neonatal medicine, centers for fetal diagnosis and treatment -- Roe grows less and less tenable. And the euphemisms used to dehumanize the unborn child -- zygote, blastocyst, fetus, "an undifferentiated mass of tissue" -- grow less and less convincing. How long before the Supreme Court of the United States wakes up?
The hope is that the Arkansas law will serve as the court's wake-up call on this issue, perhaps even a turning point. And when that day comes, Roe v. Wade will go the way of Dred Scott as a monument to the court's inhumanity, or just faulty reasoning.
But if the Arkansas law is struck down and advocates of abortion win this case on appeal, surely there will be others, and still others, till Roe is reversed, or just eroded decision by decision, till the exceptions to its rule become the rule. As with those state laws against partial-birth abortions that have been upheld. For if the Hon. Ruth Bader Ginsburg can see through Roe v. Wade, who can't?