The battle for America’s unborn
This year, the Family and Life Academy webinars have been exploring the foundations of the defence of children from physical and spiritual destruction in today’s world. In May, Dr Pat Fagan presented compelling social science data showing the incomparable benefit of intact marriage and weekly religious worship for children and society as a whole. Then at the beginning of June, Dr Jennifer Roback Morse exposed the sexual revolution’s systematic destruction of safeguards protecting children from sexual predation. Finally, on Saturday 24 June, Thomas McKenna and Paul Jonna discussed children’s right to life in light of the overturning of Roe v Wade, and reflected on the future of the battle against legalised abortion in the United States.
“This is indeed a very important day in the history of our country,” observed Thomas McKenna the, founder and director of Catholic Action for Faith and Family, in his introduction, “because it is exactly one year to the day that abortion, at a federal level, was overturned.” Summarising the situation one year on across America’s 50 states, he said:
“We have about 25 states that have abortion on demand and we have about 25 states with different limits on it, many of them very advantageous… it’s figured that, in the last year, 25,000–26,000 children were preserved from death in their mothers’ womb because of these laws.”
Thomas McKenna then discussed the situation in greater detail with the distinguished San Diego attorney Paul Jonna, who, together with his law partner, Charles LiMandri, is legal counsel for the Thomas More Society — on the frontline of the US pro-life battle at state level. Mr Jonna began with an account of the specific process which led up to the Supreme Court ruling in Dobbs v Jackson. This process included three influential amicus briefs filed by the Thomas More Society. Speaking of the case itself, Mr Jonna observed:
“Something that nobody really picks up on, which I think is fascinating, is that the clinic that originally challenged this law in Mississippi only did abortions until 16 weeks… this law, keep in mind, in Mississippi only banned abortion after 15 weeks. So this whole big fight in Dobbs is over a one-week difference… I think it’s the example of the devil overplaying his hand.”
The astonishing victory over the longstanding federal overreach in abortion legislation is the result of nearly half a century’s ceaseless efforts on the part of the US pro-life movement, which has prioritised the election of officials who would defend the right to life. “But obviously,” Paul Jonna continued, “Dobbs falls short in a very crucial respect, by not saying that the unborn are persons who enjoy a constitutional right to life under the equal protection clause… only Justice Thomas was willing to go that far.” The position of Justice Thomas, and its importance to the underlying principles in the overturning of Roe v Wade, would be further explored later. As for the immediate effects of Dobbs for the pro-life movement, Thomas McKenna reflected:
“Abortion was enthroned in our country… [as if] it was never ever going to go away… for those who have stayed firm in the pro-life movement, those who have prayed and fasted and gone to sidewalk counselling… it’s good for us to remember these things. There are victories when it looks like victory is not going to be able to come.”
Paul Jonna, commenting on this, said:
“I think the message from God here is very loud and clear. Never give up, keep fighting. We don’t know when we’re going to win these battles. It will happen in God’s time. Our job is to just fight and, as Mother Teresa famously said, ‘We’re not called to be successful. We’re called to be faithful.’ We just have to do our part and God will do His.”
He went on to address criticisms of the other side that restricting abortion violates women’s rights and relegates them to being “second-class citizens”:
“Well, the opinion in Dobbs actually addresses that issue somewhat. Various prominent jurists, including the late Justice Ruth Bader Ginsburg, said that they would have grounded the right to abortion in the equal protection clause, not the liberty clause, and they basically said that, without the right to abortion, women are not fully equal.
“Because this was an argument that was raised by important scholars, Dobbs directly addressed it, and what they said in the Dobbs decision was that, simply because only women obtain abortions, it doesn’t mean that abortion is a women’s rights issue. If the purpose of restricting abortions was a pretext for discriminating against women, that would be a different story, but millions and millions of women are pro-life, and they don’t view banning abortion as a way of discriminating against women… the Dobbs decision really dealt with that issue well, and it’s really a non-issue.”
As to the significance of the Supreme Court reversing one on a previous decision, Paul Jonna was able to furnish precedents and comparisons which cast light not only on past events, but on possible future developments as well.
“Practically, the Supreme Court acts very slow and deliberately, and it would be dangerous for our republic if it acted too quickly… if people lost faith in the Supreme Court, which is partially what happened when the Supreme Court acted too quickly in recognising gay ‘marriage’. But there have been a handful of other famous reversals, including Plessy v Ferguson, which was overturned by Brown v Board of Education, where the court found that racial segregation violates the US constitution… So it’s good that the Supreme Court can reverse itself when it’s wrong, but it’s also very good that it’s exceedingly rare… I mean, it’s so rare in the history of the Supreme Court, I think there are only really two other times where the Supreme Court reversed itself on a matter of this magnitude.”
With this in mind, Paul Jonna confidently ruled out any foreseeable return to the rule of law under Roe v Wade in the near future. Longer term, he also discussed the prospect of further interventions of the Supreme Court in defence of life and the family. In particular, Justice Thomas’s desire to recognise the unborn as persons under law — with equal rights violated by nominally existing “rights” to abortion, contraception, etc. — provides an indication of possible future developments.
“I think Justice Thomas is absolutely correct. If you just follow Justice Alito’s reasoning why they reversed Roe, basically it’s because the constitution doesn’t provide for that. And the same exact reasoning applies to contraception and gay ‘marriage’… It took Roe 50 years to get overturned and we needed time for the pro-life movement to grow and for hearts to change. Justices Gorsuch, Kavanaugh and Barrett were the ones who made the real difference here — all in their fifties — they weren’t even lawyers when Roe v Wade was issued. But they grew up with the pro-life movement. So I think we’ll probably need another 50 years to get Obergefell [v Hodges] overturned, when the children with same-sex ‘marriage’ around them get on the court and say, through their lived experience, that it should never have become the law of the land. So, it’s something to hope and pray for but it’s not going to happen any time soon.”
Paul Jonna and Thomas McKenna, whose wife is an obstetrician-gynecologist, also discussed the unprecedented danger of chemical abortions, which continue to be legally dispensed despite side-effects injuring and killing many women. One of the most encouraging developments in the last year, however, has been the resourcefulness of lawyers all over the United States in fighting chemical abortion and other initiatives at state level. While liberal-appointed judges are blocking pro-life legislation in states like California, which Governor Newsom is styling as a “safe havens” for abortion, good lawyers and law-makers are using creative and moral tactics to keep pushing towards the abolition of legal abortion in many states.
In summing up the current trajectory in the United States one year after Dobbs v Jackson, Paul Jonna said:
“Common sense and truth will prevail on the pro-life side. It’s going to take time. We’re going to need to fight this state by state, battle by battle. I’m optimistic because we see that… two thirds of Americans are largely pro-life now. Views are changing on this issue… most everyday folks are starting to realise how terrible this is… so I do have some reasons to be hopeful but I think it’s going to be a long trial now.”
This webinar is available to watch on the Family and Life Academy website, along with the Family and Life Academy’s course on abortion, which is now available for free.