The jurisprudence of Her Honor Ruth Bader Ginsburg, associate justice of the U.S. Supreme Court, may be only mediocre at best, but her candor deserves the highest praise. Every few years she'll pull back the judicial curtain and tell the rest of us what she thinks is really going on at the court. And shock anybody who can still be shocked at the court's motivations.
Back in the summer of 2009, Madam Justice Ginsburg let the cat out of the bag, or rather the tiger, when she was talking about Roe v. Wade, the celebrated magna carta of abortion in this country:
"Reproductive choice has to be straightened out. There will never be a woman of means without choice any more. That just seems to me so obvious. The states that changed their abortion laws before Roe are not going to change back. So we have a policy that only affects poor women, and it can never be otherwise. ... Frankly, I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don't want to have too many of."
Gentle Reader can just imagine what kind of population our contemporary Margaret Sanger in black robes must have had in mind when she spoke of the need to control its growth: the poor and despised. The kind of black and Hispanic and poor women with few resources who may feel they have no other choice but to submit themselves to a butcher like the infamous "Dr." Kermit Gosnell in Philadelphia, or just your friendly neighborhood abortion mill run by Planned Parenthood.
And now Justice Ginsburg, a staunch advocate of legalized abortion, has come out against Roe v. Wade, saying it went too far too fast, and sparked a nationwide reaction that continues until this day. (And how.) "That was my concern," the distinguished justice told a crowd of law students at the University of Chicago this month, "that the court had given opponents of access to abortion a target to aim at relentlessly. ... My criticism of Roe is that it seemed to have stopped the momentum that was on the side of change."
On this occasion Madam Justice was more than candid; she was right -- certainly by all the barometers of public opinion and the trend of legislative enactments in state after state. Can anyone now recall the political atmosphere in 1973 when the court handed down Roe v. Wade, and it was taken almost as inevitable that the tide of abortions would now sweep over the whole country? "Supreme Court settles abortion issue," announced the front-page headline in the New York Times the day after Roe was handed down. The Times' news coverage proved as reliable then as it does now.
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.
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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.
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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.
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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.
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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?