Op-Ed: Take a Closer Look at Justices’ Dissent in Dobbs Decision and You’ll Be Appalled

In the recent overturning of Roe v. Wade, the dissent of Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan received very little scrutiny. Yet when we take a closer look at it, we should be appalled by the superficiality of their arguments. The dissent is riddled with emotive contentions. In terms of rigorous legal arguments, it completely fails. Here are corrections of just some of its inane errors. 1. Natural childbirth is not “forced childbirth.” “As of today, this Court holds, a State can always force a woman to give birth,” the justices wrote. “A State can force her to bring a pregnancy to term.” Nature itself brings pregnancies to term. No force by any state is needed. “There are few greater incursions on a body than forcing a woman to complete a pregnancy and give birth.” No incursion is necessary. Completing pregnancy is a natural event — a foregone conclusion. “It forces her to carry out the State’s will.” No. It is the natural course of a pregnancy — not the “State’s will” — that brings each little human being to birth at the appointed time. “In the Fourteenth Amendment’s terms, it takes away her liberty.” No. In the 14 Amendment’s terms, the decision rightly takes away her liberty to wreak lethal harm on an unborn member of her family. It rightly takes away her liberty to deny equal legal protection to her unborn child. It rightly takes away also her liberty to deny her unborn child due process and to decide solely on her own authority to have her child killed. There is no 14th Amendment liberty to commission the killing of a human being in our power and under our care. We are called to liberty, said St. Paul, “but be careful or this liberty will provide an opening for self-indulgence” (Galatians 5:1, 13-18). “They will experience the profound loss of autonomy and dignity that coerced pregnancy and birth always impose.” Their unborn children experience the profound loss of their very lives when subjected to the deadly coercion of abortion. A mother’s noble autonomy and true dignity can never tolerate the commissioned killing of her utterly defenseless and innocent little daughter or son while in the natural safe haven of the womb. 2. Equality and freedom can’t be achieved by killing unborn children. “The majority … does not think forced childbirth at all implicates a woman’s rights to equality and freedom. Today’s Court, that is, does not think there is anything of constitutional significance attached to a woman’s control of her body and the path of her life.” The constitutional significance attached to a woman’s control of her body is that she must not misuse that control to organize the killing of her unborn child who, as a member of our posterity, is to be guaranteed the same blessings of liberty that she herself enjoys. 3. The Constitution is wrong because it was ratified by men? Hardly. “But, of course, ‘people’ did not ratify the Fourteenth Amendment. Men did. So it is perhaps not so surprising that the ratifiers were not perfectly attuned to the importance of reproductive rights for women’s liberty, or for their capacity to participate as equal members of our Nation.” The ratifiers were not children in their mothers’ wombs, either, and so may not have been perfectly attuned to the importance of these unborn children’s right to go on living. Yet these male ratifiers did recognize for “the infant stirring in the mother’s womb” his or her capacity as our posterity to participate in the blessings of liberty as equal members of our nation. 4. The Founders never endorsed the evolution of rights contrary to natural law principles. “The Framers (both in 1788 and 1868) understood that the world changes. … The Framers defined rights in general terms, to permit future evolution in their scope and meaning.” Wrong. While the Founders did define rights in general terms, those rights were based on a set of pre-existing principles that were unalienable — not to be altered. Indeed, the Founders established the Constitution on “essential principles … permanent and unalterable” that have peremptory force, remain self-executing and cannot be abrogated by positivist laws seeking superficial “accommodation to time and events” (Records of the Federal Convention of 1787, Vol. II, Section IV). The depersonalization of unborn human beings lies at the heart of Roe’s error: its ideological subverting of our nation’s founding principles. With the overturning of Roe, two of those foundational principles have been restored — the right to life principle and the “no property in man” principle. 5. No ownership and killing rights over children’s bodies while in their mothers’ wombs “Everyone, including women, owns their own bodies. So the Court has restricted the power of government to interfere with a person’s medical decisions or compel her to undergo medical procedures or treatments. “ But women do not own the tiny bodies of the little daughters and sons prospering naturally in their wombs. The deliberate killing of the second patient in a pregnancy is never a genuine medical decision or a medical procedure or treatment. True justice requires that elective abortions be recognized and treated not as personal “choices” but as an abusive practice, human rights violations perpetrated by rogue “doctors” who renounce their professional integrity and the age-old principle to “do no harm.” 6. Work the problem, don’t kill her child. A litany of problems is proffered, including an increase in maternal mortality, inadequate health care coverage and paid family leave, pregnancy discrimination, health risks, and financial costs. The absurd implication is that abortion solves all these problems. We must seriously address these problems and help these mothers and every one of their children not just to live but to live hopefully and trustingly in each other’s love and within the love and practical care of our communities. After today… “After today, young women will come of age with fewer rights than their mothers and grandmothers had.” No, many young women will come of age because their right to life, the most important right of all, is now protected. “With sorrow — for … the many millions of American women who have today lost a fundamental constitutional protection — we dissent.” No, we should rejoice that the court has restored for many millions of American children — conceived or yet to be conceived — the fundamental constitutional protection of their first right: their unalienable right to life. Thank God, America! This article appeared originally on The Western Journal.

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