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Pro-Lifers Should Never Have Tolerated Unconstitutional Roe, And Must Never Do So Again

A non-leftist court is no guarantee, and we must consider the hazards of holding the Supreme Court as the final arbiters of constitutionality.

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The Supreme Court’s reversal of Roe v. Wade in its Dobbs v. Jackson decision is a historic turning point in the battle for equal protection of preborn lives. But in the celebration over consigning blatantly unconstitutional pieces of judicial legislation to “the dustbin of history,” pro-lifers might be learning the wrong lessons. A non-leftist court is not guaranteed forever, and we must consider the hazards of holding the Supreme Court as the final arbiters of constitutionality, particularly when matters of life, death, and bodily autonomy are at stake.

While America submitted for nearly half a century to Roe‘s legal fiction, approximately 63 million preborn lives were snuffed out. Yes, pro-lifers have mourned all these lives lost. But the genocide would not have been of this magnitude if, for nearly five decades, the pro-life movement had focused on upholding the Constitution’s guarantees of the inalienable rights to life and equal protection instead of wrongly submitting to the obviously unconstitutional Roe opinion.

States Should Never Have Tolerated Roe

In 2019, Texas Alliance for Life’s Joe Pojman told the Austin Chronicle that a Texas abolition bill couldn’t receive their support because “We could no sooner ignore SCOTUS than the force of gravity.” Other pro-life leaders have made similar statements wrongly affirming Roe as the law of the land–a murderous regime, to be sure, but worthy of deference nonetheless. 

Now, instead of admitting that states should never have tolerated Roe, pro-lifers are hailing Dobbs as an example of how trusting in “the system” pays off. Forty-nine years of legally enshrined child sacrifice is not success. Forty-nine years of Roe and its progeny governing before the court finally righted its grave errors is not evidence of “the success of the conservative legal movement,” but rather a lasting stain on the character of this nation. 

States Refused to Comply with Unconstitutional Dred Scott Decision

A virtuous nation loyal to the Constitution would never have tolerated Roe a single day, just as Dred Scott v. Sandford wasn’t tolerated. That odious ruling that attempted to ensure owning slaves was legal in every part of America was defied by state supreme courts, legislatures, and even President Abraham Lincoln. Likewise, success in the abortion battle would have been holding ground in defense of the preborn and expanding existing prohibitions on abortion. It would have been state officials nullifying or interposing unconstitutional laws, not deferring to judicial rulings that sought to distort the Constitution’s meaning. 

Thomas Jefferson wrote that treating federal “judges as the ultimate arbiters of all constitutional questions” was “a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.” He authored the Kentucky resolutions arguing states could refuse to comply with the vastly overbearing Alien and Sedition Acts that violated the First, Ninth, and 10th Amendments. 

Similarly, Abraham Lincoln said in his first Inaugural Address, “If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court … the people will have ceased to be their own rulers.” Lincoln believed in the ability of our legal system to correct egregious errors, but the Dred Scott decision was not righted by the court itself, but by free states refusing to abide by it and by the 13th Amendment ratified just eight years after the abominable pro-slavery ruling. 

Babies Died While We Waited

Several attempts at a “human life amendment” have been made in Congress, but when each failed, pro-lifers largely consigned themselves to whittling at the margins with funding restrictions like the Hyde Amendment or ultrasound mandates. Case after case came before the courts, sometimes granting pro-lifers scraps while they submitted to unjust judgments predicated on Roe’s instant, calamitous precedent.

Yet while we were consigning ourselves to that “despotism of an oligarchy” regarding abortion, 18 states and Washington, D.C. were legalizing marijuana, proving states could ignore the federal government when it oversteps its authority. If states could ignore the DEA for the sake of treating non-severe conditions and recreation, why could states not ignore a ruling that legally protected the murder of innocents in the womb, even up to the point of birth? 

Pro-lifers must not learn the wrong lesson from Dobbs: This is not a triumph, it is a correction we should never have waited on that came too late for millions of preborn babies. For decades, Christians have ministered from sidewalks and pregnancy centers, dutifully and boldly proclaiming truth to women entering the abortion mills and offering them resources. Their work is noble and life-saving, but all the most moving persuasion ministries and campaigns have never been enough to stop the bloodshed. 

What Happens When the Court Upholds Another Unconstitutional Position?

Abiding by unjust diktats over the supreme law of the land — the Constitution — propagates injustice and suffering. This has been no more obvious than in the last two years, when livelihoods, childhoods, and basic liberties have been crushed by arrogant bureaucrats.

The court will not likely maintain a mostly-originalist majority forever. If at some point the court decides that a federal policy mandating the sterilization of women after a certain number of births is justified to lower our carbon footprint and defend against climate catastrophe, and we cannot get a Constitutional amendment to protect the essential liberty to procreate, would we then patiently work on installing conservative judges and wait on the courts while women face permanent bodily damage? Or would we simply refuse to accept it as the law of the land? 

Consider the more significant probabilities that a Democrat-controlled Congress codifies Roe into federal law, or that a leftist-controlled court simply decides to overturn Dobbs and reinstate a “constitutional right” to abortion. Will we wait another 50 years? No, we cannot suffer the loss of any more image-bearers of God as a sacrifice to a “supreme” arbiter of Constitutional interpretation. 

Dobbs smooths the way forward in protecting life, but in striving for this overturn of Roe instead of resisting that ruling from the day it came down, we let the blood of preborn innocents flow for half a century. We must never needlessly bear such a cost again.