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The Supreme Court’s common sense decision on the Voting Rights Act could have far-reaching implications if the same logic is applied to Roe v. Wade, the decision that effectively made abortion on demand through the full nine months of pregnancy the law of the land.
On Tuesday, in Shelby County v. Holder, the high court struck down a key section of the act that had subjected the laws pertaining to elections in nine states and other local jurisdictions to intense scrutiny by the Justice Department.
At issue was Section 4 of the act, which applies a decades-old formula to decide which states and counties had histories of discrimination.
The pre-clearance provisions were considered so drastic that, when Congress enacted them in 1965, they were supposed to be temporary. However, discrimination laws have become so sacrosanct that when lawmakers renewed these provisions (the last time was in 2006) they had no stomach for revising the formula.
In writing the majority opinion, Chief Justice John Roberts found it unconstitutional that states be judged by what was known to be true 40 years ago.
This is huge!
When Roe was handed down 40 years ago, the justices were operating with what now could be called “world is flat” technology.
The Constitution guarantees the protection of life for every individual. However, in 1973, Justice Harry Blackmun, writing for the majority, said, “We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.”
About the time Blackmun was writing that twisted opinion, realtime ultrasound imaging, which gave us a window to the womb, was being used for the very first time. Just three years later, in 1976, the first scientific papers appeared.
Ultrasound now allows parents and their doctors to view their children at various stages in a pregnancy. We can see the gender, observe their activities and spot potential problems.
Ultrasound was followed by the development of fiber optics, which served to open that window, allowing doctors to perform delicate surgeries on these tiny patients before they are born.
We now know the womb is a very busy place: A heartbeat can be heard just 18 days after conception. At six weeks, brain waves can be detected. By the eighth week, the baby is completely formed and all of her body systems are in place. She moves about the womb, sucks her thumb and responds to touch. By the end of the third month, she can swallow, squint, move her tongue and grasp objects placed in her hand. She frowns, hiccups, turns her head and has all the parts necessary to feel pain.
Children also learn in the womb. They respond to light and sound. They recognize their mother’s voice and respond to familiar stories and music.
However, in the years that followed Roe, the Supreme Court steadfastly refused to look through this open window or to acknowledge what is now taken as a scientific fact: The unborn child is alive, human and unique.
How is it that in one operating room, doctors work feverishly to save the life of a child in the womb, while in the very next room an abortionists is legally killing another child of the same age?
How is it that a young woman can be prosecuted for taking the life of her infant minutes after birth but that same woman would be protected if she had an abortionist do it minutes before birth?
In 1983, these things caused Justice Sandra Day O’Connor to write in a dissent, “The Roe framework is clearly on a collision course with itself.”
Many of the current justices are known to be uncomfortable with Roe. That includes Anthony Kennedy who provided the swing vote in Shelby.
In 2007, when Kennedy wrote the majority opinion in Gonzales v. Carhart, the decision that outlawed the practice known as partial-birth abortion, he referred to the subject targeted for destruction, not as a “fetus,” but as an “infant.”
Just how long can the Supreme Court dodge the central issue in Roe in deciding abortion cases?
Since the beginning of the year, at least 14 states have passed laws that directly challenge this antiquated decision. This game of abortion dodge ball cannot go on forever. Sooner or later, the Supreme Court will be forced to look through this open window and, at that time, one should hope and pray that reason prevails.