The Supreme Court’s decision to take up in its next session Dobbs v. Jackson Women’s Health Organization, the suit brought against the 2018 Mississippi law limiting abortions to the first 15 weeks of pregnancy, can’t help but raise heady hopes in prolifers eager for good news. It is hard not to fantasize about an end to the nearly 50-year history of nationalized abortion on-demand in America.
Of course, it is very unlikely that the most extreme of pro-life hopes—an actual reversal of Roe v. Wade—will come to pass next year. Short of our nation’s return to Edenic innocence on the topic of protecting the unborn, however, we may surely hope—that is, it is surely possible (though I am looking about for wood to knock on as I write)—for the Court to agree that the right to abortion hallucinated into existence in Roe can in fact be limited (if Mississippians so wish) to the first 15 weeks of pregnancy. It doesn’t make much sense biologically or philosophically or morally to permit abortion before that 15-week line, but then, neither does Roe’s primitive trimester arrangement make sense. And more power to Mississippi’s legislators for daring to try to walk back the right to abortion to a point a little before the onset of quickening, when the already living and moving human being developing in the womb can at last be felt living and moving by the mother. The legislation is an intermediate step that not only garnered enough local political support to pass in 2018 but also may squeak past the Court’s institutional reluctance to reverse contentious and now-longstanding precedent. As I write, the latest Gallup poll on American attitudes on abortion has just been published. As usual, this one has good news and bad news. The percentage of respondents who find abortion “morally acceptable” inched up from 44 percent last year to 47 percent this year. And the percentage of those who think abortion is “morally wrong” inched down a point to 46 percent. Those are hardly dramatic moves, and both are within the margin of error, but still those results are not a good thing. Good would have been learning that the pro-life percentage jumped eight or ten percentage points. Neither is it good that 49 percent of respondents identify as pro-choice (with those identifying as pro-life coming in a close second at 47 percent). Relatedly, you can mull over the 26 percent of Democratic respondents who identified as pro-life. Do they vote for their pro-choice Democratic candidates anyway? Do they try to split their tickets? Do they live in solidly blue (or red) states, where they quiet their consciences by saying that their vote doesn’t really matter anyway? It’s unclear, as is the response from the 26 percent of Republicans who do not identify as pro-life.
Seeking further elucidation, Gallup asked who thought abortion should be legal “under any circumstances,” and found that less than a third favored totally unrestricted abortion. (This is the good news.) Sixty-five percent backed some kind of restrictions, and 33 percent of that 65 percent (meaning about 21 percent of all those surveyed) favored limiting abortion to “only a few” circumstances.
Not surprisingly for a survey on the contentious topic of abortion, there is lots to ponder in this one, particularly in conjunction with laws like Mississippi’s being passed or debated in other red states.
To begin with, pulling back from Roe’s permission to abort “up to 24 weeks,” as the pro-abortion press puts it, but effectively up to birth, hardly places Mississippi in the category of, say, Egypt or Brazil or Iran, however much the rhetoric of pro-abortion activists may lead us to think so. Even New Zealand, for example, long a darling of liberals and politically having little in common with Mississippi, only extended abortion for any reason to 24 weeks in 2020. (It is permitted thereafter for “clinically appropriate” reasons.) In fact, relatively few nations interpret the right to abortion to include the right to abort for any reason throughout the entire pregnancy, so that leaves courts and legislative bodies for all intents and purposes throwing darts at the pregnancy calendar to arrive at the “correct” endpoint.
It is clear from the reactions of the pro-life and pro-abortion camps that activists on both sides regard Dobbs as conceivably, if not the beginning of the end for abortion on demand, then (to adapt Churchill’s phrase), at least the end of the beginning. In the long decades since 1973, the pro-life movement has several times suffered demoralizing disappointments over anticipated turning points that fell short of expectation, whether these were other Supreme Court decisions, crucial elections, or legislative actions. However, without any legal or political qualifications to prognosticate, I incline towards the view that something upholding the constitutionality of gestational limits on abortion may occur in the upcoming Supreme Court term, though that “something” could well be relatively limited and constrained.
Depending upon the wording of the decision (and words and their meaning in the law are crucial, as Thomas More emphasized in A Man for All Seasons when he learned he would have to swear an oath regarding Henry VIII’s marriage: “. . . what is the wording?. . . It will mean what the words say!”), a ruling upholding the constitutionality of the Mississippi law would encourage red states to copy or perhaps (again, depending on the wording) inch even further along in the direction of restricting abortion. It would have no direct effect on the laws (or, presumably, the practices) of blue states, unless perhaps to provoke New York’s Gov. Andrew Cuomo to sleepless nights attempting to devise a law even more lethal to the unborn than the one he pushed through the New York State legislature in early 2019. Purple state legislatures would presumably zigzag a bit depending on the outcome of battles for party ascendancy.
So some lives would be saved in the red states, and a more favorable line in the sand would be drawn. The pro-life movement would be immensely encouraged with even a limited victory at the Supreme Court level—and future congressional and presidential elections would become even more fraught with importance for both sides, if that is possible, given that even a modest win in Dobbs would be attributed to the Court’s current but precarious prolife majority. (Depending on the ruling and its margin, this case might also shift more Democrats into the Court-packing camp.)
Obviously, then, prolifers need to hope and pray for at least a limited legal imprimatur for Mississippi-style abortion restrictions—though of course, from a praying point of view we should continue petitioning God for that near-miraculous Roe reversal.
But even a Roe reversal, a half-century after abortion on demand became legal nationally, would not place us in reach of the goal of making America safe for the unborn. In fact, we would be closer to the beginning of our task than to the end, because returning the abortion question to the states would in practice mean very permissive abortion laws in all of the blue ones, restrictive laws in solidly red ones, and a cluster of divided states that would politically resemble bleeding Kansas in the 1850s, see-sawing contentiously back and forth within a certain range of restriction and permission.
One question that raises itself—as it has many times over the years in many contexts—is why our opponents are so opposed to the still-deadly Mississippi law (some 90-plus percent of abortions occur by the 15-week cutoff) and its like? After all, it does not actually bar Mississippi women from obtaining abortions.
The answer is that any receding of the tide of legal abortion arouses fears of further recession in pro-abortionists. And as a safety valve for the Sexual Revolution inaugurated in the Sixties, abortion is necessary—more necessary by the year, perhaps, with marriage rates having declined so greatly since the Sixties and Seventies. So even if (to exaggerate) we could prove to pro-abortionists that 99 percent of desired abortions would still take place under the Mississippi 15-week limit, they would decry the “injustice” done to the 1 percent who for whatever reasons were therefore being deprived of the right to fertility-free sex.
And I do not mean this flippantly. Whatever the percentage of Mississippians who, in an average year, would find themselves seeking an abortion outside the 15-week limit, many could be classified as hard cases; if we could examine each one with a novelist’s penetration, no doubt most would have genuinely sad stories to tell. However, this is likewise the case for many people who do not choose abortion or for one reason and another did not end up getting one, and thus gave birth. And even with pregnancies that are welcomed or accepted, birth can bring to light medical problems, or the mother’s relationship with the father can fall apart and with it the financial and emotional supports on which she was relying. In such cases some mothers may be tempted to think, “If only I had known, or this had occurred earlier, I could have aborted the child who is now such a burden and anxiety or whose prospects are so poor.”
Why then are those so insistent on the safety valve of legal abortion not equally insistent on a right to infanticide? (Admittedly, a few logically consistent people, such as Princeton’s Peter Singer, do insist on this right.)
The Mississippi law excludes from abortion those late-term and more developed fetuses that look, act, and feel more baby-like, and thus are to the imagination more gruesome to abort. In doing so, the law gained acceptance from the large number of ordinary non-activists on either side of this issue who don’t want to eliminate abortion entirely or get government into the business of minutely second-guessing the mother’s motives for seeking an abortion, but are squeamish about allowing abortions closer to viability.
Above all, however, Mississippi legislators are, some intentionally and some not, demonstrating just how arbitrary a line we must draw in order to legally permit any version of abortion on demand. (In this way the Mississippi law is the kind of “teaching moment” abortion restriction that Hadley Arkes has promoted for years in initiatives like the partial-birth abortion ban, fetal pain legislation, and the Born Alive Infants Protection Act.) Of course settling on 15 weeks leads anyone who believes abortion is the killing of a human life to ask, “Why not set the limit earlier?” Of course that same 15week limit leads those seeking to maximize the opportunity for ending the unborn’s life to ask, “Why not allow abortion later?” Though most women experience quickening within a few weeks of the Mississippi limit, there is no objective significance about that traditional gestational landmark—or any other marker following conception and preceding birth. There is no point along the pregnancy continuum after conception occurs that logically and biologically forces us to conclude that before then there is no new human being but afterwards there is.
In fact, even birth doesn’t make the kind of difference in the baby that would allow us to conclude, “Only now is this a human being” or, to adopt the pro-abortionist’s more macabre frame of reference, “Even after a lateterm aborted child survives, there is no reason why a woman should not have the right to a dead baby.”
Over the course of a century or more, at an accelerating speed and with increasing success, progressives without a traditional attachment to family life, sexual mores, or the sacred and life-giving role of sexual relations that take place within a marriage open to human life, have worked to usher in the era of subjective sex—that is, sex confined to its subjective significance of self-satisfaction and self-fulfillment, or at best, mutual self-satisfaction. Though this subjective understanding is not, strictly speaking, solipsistic (in that it generally involves two people rather than one, thereby differing from the consumption of pornography), to the extent that it is self-chosen and selfdefined, and it is separated from other ends or motivations or from socially awarded status, we might call it self-referential sex. And by now we are living in its heyday.
The early-to-mid 1900s saw the widening acceptance of birth control by most sectors of society—including most Christian denominations—as a means for married couples to limit family size and postpone or space pregnancies. (The Anglican Church’s 1930 Lambeth Conference cave-in on contraception for married couples was the turning point.) Within a matter of decades, and with the development of the contraceptive pill, the use of birth control became morally and socially acceptable for anyone—married or not, in a stable relationship or not—to use when the user’s aim was to separate sexual activity from its not-unforeseen reproductive purpose. For, when the natural connection between sexual intercourse and pregnancy is decoupled, so to speak, by contraception, we end up with what we might call sex-ondemand and pregnancy-on-demand. It is not surprising that the failures of contraception and its users then require—abortion-on-demand.
From the psychological point of view, once we expand the moral sphere of sexual activity to include everything from one-night stands through marriage, and decouple sexual activity from pregnancy, there is no objective purpose to sexual activity, but only the (genuine but subjective) emotions and desires of those engaging in it. Certainly there is no longer an overarching societal stake in the couple’s sexual relationship—no sense that amorous couples should be demonstrating fidelity or stability or the ability to support a child or the age and maturity required of parents. Parenthood—the decision to become a parent, the determination that a couple are qualified to be parents—is now regarded as something separate from the decision to embark on a sexual relationship—and even separate from the decision to embark on a marriage.
Now, it was not quite inevitable for legalized abortion-on-demand to follow upon sex-on-demand and pregnancy-on-demand. We could perhaps imagine our nation settling for a situation where all but those for whom a child appeared to be a calamity simply accepted the reduced risk afforded by contraception and hoped for the best. Still, the path of least resistance was the one that almost all of the wealthier, more secularized, more progressive nations chose. After all, the path of least resistance is by definition the easiest and therefore the likeliest to take, unless we are strongly motivated toward a more demanding goal. What that counterpull could have been or could now still be is unclear—another Great Awakening, perhaps, a religious revival like those that took place in America in the 18th and 19th centuries? Though “nothing is impossible with God,” given the current levels of belief and rising disaffection with our past and its cultural heritage, which for increasing numbers of young people includes Christianity, that particular intervention today would truly be miraculous.
Barring such a divine intervention or its equivalent, today’s flight from fixed, objective realities, the ontological demands of our human nature, and the physical world we live in suggest that, however the justices decide regarding Mississippi’s effort to shrink the window of legal abortions, we will be battling the cause of the unborn for a great many years to come. We may be fortunate enough, if the decision favors Mississippi, to continue carrying the fight into state legislatures, there to gradually establish relatively abortion-safe beachheads in red states. However, almost 50 years after Roe, we are still seeking to re-convert that still-large percentage of our electorate who, though repeatedly reporting in polls their desire to see abortion rarer, do not in most states push their legislators to deprive other people of the right to abortion.
Meanwhile, we can hope that the educational effect of confining the abortion right to 15 weeks will open some eyes to the reality that the unborn are human beings at 12 weeks too—and at 10 weeks, and 8 weeks, and 6 weeks, and at every point along the precarious trajectory from conception to birth. And we must continue our efforts to convince people that, even when they are in crisis, even when they not only never intended to conceive a baby but find themselves in the worst possible position to do so, they should accept that unborn child as an innocent individual whose own journey through life has just begun.
All this, however, is founded on a reality-based way of living and thinking that unfortunately has become less commonplace. Instead, reality-based thinking is ceding ground to more malleable and fluid concepts of identity and personhood that are not bound to biology or to the physical rules of an obstinately real world whose existence Samuel Johnson once demonstrated to his biographer Boswell by kicking a stone.
Today, for some who seek freedom from the structures of the biologically and physically ordained world and who find ways of ignoring, evading, and overcoming such limits in the multifarious worlds of online existence or augmented reality, Samuel Johnson’s proof by collision with fact encounters more resistance from even many ordinary people. Fans of Marvel or DC Comics, for example, might theorize that in another part of the multiverse, rather than a toe colliding with hard rock, the body might be capable of penetrating the rock, or the rock might dissolve before the body. Possibilities, because they can be imagined, are imagined to be as real (or unreal) as the actualities. Few but sophistical philosophers in earlier eras would entertain solipsistic notions or voice doubts about whether the physical world exists or whether it resembles our perceptions of it. Even if entertained as thought experiments in the past, these notions would induce a kind of existential vertigo and an uncomfortable sense of loneliness in an unknowable cosmos. However, today what is likely to strike some as unpleasant and a straitjacket is the effort to disprove those vertiginous experiences of the imagination and refute the doubts about the solidity and dependability and permanency of the world we apprehend through our senses.
It is into this world that the citizens of Mississippi are attempting to usher across the threshold of birth an increased percentage of their unborn.
Ellen Wilson Fielding, a longtime senior editor of the Human Life Review, is the author of An Even Dozen (Human Life Press). The mother of four children, she lives in Maryland.