Challenges of a “Post-Roe” World

by Liam Gibson

Few countries can match the United States for the savagery of its abortion regime — only Canada, China and North Korea. On the morning of Tuesday 16 January 1973, abortion at any stage of pregnancy was a criminal offence in 30 of America’s 50 states. By that evening, it was a constitutional right permissible up to the moment a pregnant woman went into labour. This sudden and unparalleled transformation was the result of deliberate deceit, distortion and a denial of reality that remains at the heart of the Supreme Court’s decision in the case of Roe v Wade.

The flawed rationale and fraudulent rhetoric on which Roe was based has meant that its repudiation has always been inevitable. Whether that time has finally arrived, or the pro-life movement must continue to wait, will become clearer in the weeks and months ahead. Nevertheless, whatever happens, the perverse ruling of the Supreme Court has wrought profound changes in America — not least a death toll of over 63 million unborn children. The reversal of Roe will not undo those changes any more than it can restore the lives that have been lost. The hysterical and inaccurate media coverage that implies that overturning Roe would make abortion across America unlawful appears intended to incite angry crowds of abortion activists in a last-ditch attempt to intimidate the Court. It is unlikely that these tactics will succeed since the implications of such a humiliating climb down would be disastrous for the rule of law in America.

According to the Guttmacher Institute, nine states have retained legislation that has not been enforced, while 13 have passed so-called “trigger” laws that will come into effect in the event that Roe is overturned. A further nine states sought to adopt restrictions that were blocked by courts but could be reintroduced in Roe’s absence. Seven states have laws that express the intent to restrict the right to legal abortion if Roe is reversed.

Conversely, 16 states including New York and California have laws specifically legalising abortion, at least until viability. Four of these — Colorado, New Jersey, Oregon and Vermont, as well as Washington DC, permit unrestricted access to abortion throughout pregnancy. 

On Wednesday 11 May 2022, an attempt in the Senate to pass federal legislation to ensure the status quo was retained even after Roe’s reversal had been defeated by 51 votes to 49. Although Republicans, who are pro-life in name only, worry that overturning Roe could energise the Democrat base ahead of the November Congressional elections, this is unlikely to have more than a minimal impact on the outcome. According to a recent poll published by Gallup, 49 per cent of Americans identify themselves as “pro-choice” and 47 per cent as pro-life. Statistically, public opinion is evenly split. Besides, the states where abortion advocates exercise the most influence are heavily concentrated in areas that would favour Democrats whether or not Roe is overturned. 

How the pro-life cause in the USA might change

In a post-Roe America, the abortion battle will continue but on new territory. The abortion industry will no longer be able to rely on the courts striking down pro-life legislation in the name of a fictitious constitutional right. It remains to be seen whether the most radicalised elements within the abortion lobby can free themselves from their dependency on cliches, slogans and thinly veiled threats of violence, and engage in a real political debate. 

With Roe gone, politicians who, for decades, turned to the pro-life cause for a steady stream of campaign donations — with little or nothing to show for it — will no longer have an excuse for their failure to act. In the recent past, some sections of the pro-life political establishment have seemed determined to undermine pro-life proposals that they branded as too extreme. In a similar manner, the pro-life organisations will have to choose whether to remain true to the cause or to accept possibly well-intentioned but morally compromised legislation that would seek to protect some children while abandoning those whose disabilities, stage of development or circumstances of conception leave them the most vulnerable.  

Possible implications for the United Kingdom

Of course, whatever the Supreme Court finally decides it won’t change anything outside the US. Even so, it would be impossible to overstate just how important this victory would be for the pro-life movement internationally, especially in the English speaking world. The overturn of Roe will cause a cultural earthquake that will send shockwaves across the globe. Its impact would be enormous. It will encourage pro-life people everywhere to redouble their efforts and will change the cultural perception of the abortion issue. 

Unfortunately, events in the US are likely to present the pro-life movement in the UK with two serious dangers. The first of these comes from the reaction of the abortion lobby. Abortion advocates in England may use the current hysteria surrounding the Supreme Court’s initial draft to push for complete decriminalisation in Britain. The legalisation of abortion in the UK in 1967 came about through Parliament, not through the courts, so an abortion outside the terms of the Abortion Act remains a criminal offence in Scotland, England and Wales. 

In 2018, the abortion lobby in England used the progress of an attempted ban in Alabama to rail against the pro-life laws in Northern Ireland as even stricter than the Alabama law. The repeal of those laws followed in 2019 with the decriminalisation of abortion. Today, a woman in Northern Ireland who procures her own abortion, even at full term, would not be guilty of a criminal offence. This is the regime the abortion lobby would like to foist on the rest of the UK. The idea of the Roe decision being overturned will strike fear into the hearts of abortion advocates and could cause them to speed up their plans for full decriminalisation. In the short term, the situation in Britain is likely to get worse before it gets better. 

The second danger comes from a naïve belief held by some in the British pro-life movement that the massive anti-life majority in Parliament could be persuaded to lower the current gestational limit for abortion. Not only would such a proposal be morally compromised and destined to fail, any Bill to amend the Abortion Act would provide the perfect opportunity for their opponents to re-launch the campaign for complete decriminalisation.

Nevertheless, despite the dangers and challenges that lie ahead, the prospect of Roe being overturned will be celebrated by everyone who recognises the evil of abortion for what it is.