US abortion law is based on a great lie. But the new Supreme Court Justice could help to strike it down
Since Roe v Wade was unjustly decided in 1973, American law has approved the killing of 60 million children. At present rates we kill 926,190 each year, 2,537 each day, 105 each hour. Because our law teaches contempt for life, these dead have gone largely unnamed, unburied and unmourned.
In 1992, Justice Anthony Kennedy had an opportunity to stand against this killing. But his co-authored controlling opinion in Casey v Planned Parenthood instead justified it. “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” Kennedy wrote. He believed that freedom required the death of innocents, because “people have organised intimate relationships and made choices, in reliance on the availability of abortion”.
In an important sense Casey is more radical than Roe. Roe merely created a right to abortion. Casey placed that right “at the heart of liberty” and based the legitimacy of the nation upon it. Overturning Roe would imperil the legitimacy of the court, Casey argued, and “if the Court’s legitimacy should be undermined, then so would the country be”.
With this argument, the Supreme Court declared abortion the basis of American order. It boasted that America’s foundations are laid, its cornerstone rests upon the great lie that the unborn child is not equal to his kin; that abortion – in the name of Liberty – is a natural and normal thing. America’s government became the first in the history of the world based upon this great physical, philosophical and moral falsehood.
Slavery was defended by many men. Only one, Confederate vice president Alexander Stephens, was bold enough to give a speech declaring that the “cornerstone” of the Confederacy was the principle that white and black were not equal. Casey committed a similar enormity. It reads like a latter-day cornerstone speech.
A lie so deadly requires an accounting, a lustration that is total and thorough. We may never have that. But now that Anthony Kennedy has retired, Americans can and must challenge his image of our nation. We must insist that every child be protected in law and welcomed in life.
Despite its aura of serene detachment, the Supreme Court is a fundamentally political institution. It will overturn this monstrous decision if it receives sufficient political pressure to do so. For 40 years and more, that pressure has been consistently applied. The forces of life have not wearied and have not rested. Every year hundreds of thousands attend the March for Life, perhaps the greatest sustained protest in the nation’s history. Every year, the pro-life view gains ground, and more voices are added to those calling for Roe’s repeal.
One of those voices belonged to Norma McCorvey, the young woman given the pseudonym Jane Roe and enlisted as the plaintiff in Roe v Wade. She later petitioned the courts to overturn the decision made in her name. “I was used and abused by the court system in America,” she said. “Instead of helping women in Roe v Wade, I brought destruction to me and millions of women throughout the nation.” It is past time to honour her wishes. In the name of Jane Roe, for the sake of Jane Roe and the millions of women like her, we must overturn this unjust decision.
This is no impossible dream. In the final debate of the 2016 presidential campaign, Hillary Clinton said: “I feel that at this point in our country’s history, it is important … that we not reverse Roe v Wade.” Donald Trump took the opposite stance. He promised to appoint justices who would overturn it. He made this promise on the most prominent stage and to the widest possible audience. Because of it, he received a decisive share of the vote. (Twenty-six per cent of Trump’s voters said that the Supreme Court was the most important reason for their vote – only 18 per cent of Hillary’s voters said the same.) It is reasonable to ask that this promise now be honoured.
A great deal depends on how it is done. One possibility – the one Trump seems to expect – is that the question will be returned to the states. State legislators would then debate, haggle and compromise over the worth of human life. A child on one side of a state line would be acknowledged as human; on the other, he would be a mere clump of cells.
Another possibility is that the unborn child will be acknowledged as a person deserving the full protection of our law under the Fourteenth Amendment, which was adopted in 1868 and addresses citizenship rights. When the Court first heard Roe, the state of Texas argued that “the foetus is a ‘person’ within the language and meaning of the Fourteenth Amendment”. The Court rejected this argument but acknowledged that it was the crux of the matter. “If this suggestion of personhood is established, the appellant’s case, of course, collapses, for the foetus’s right to life would then be guaranteed.”
At present, the first possibility seems more likely. Even the conservatives on the Court have rejected the idea that the Fourteenth Amendment secures the unborn child’s right to life. In his dissent in Roe, Justice Rehnquist wrote: “The drafters did not intend to have the Fourteenth Amendment withdraw from the states the power to legislate with respect to this matter.”
Justice Scalia also favoured returning the question of abortion to the states. He argued that the Court could no more prohibit abortion than enshrine it as a right, because “the Constitution says nothing about it”. In his view, “the Court should return this matter to the people – where the Constitution, by its silence on the subject, left it – and let them decide, state by state.”
As Joshua Craddock has noted in the Harvard Journal of Law and Public Policy, Scalia’s argument echoes the defence of popular sovereignty made by Stephen Douglas in his debates with Abraham Lincoln. After Lincoln declared that he looked forward to a time when slavery would be abolished everywhere, Douglas replied:
I look forward to a time when each state shall be allowed to do as it pleases. If it chooses to keep slavery forever, it is not my business, but its own; if it chooses to abolish slavery, it is its own business – not mine. I care more for the great principle of self-government, the right of the people to rule, than I do for all the negroes in Christendom. [Cheers.] I would not endanger the perpetuity of this Union.
Scalia’s solution, like Douglas’s, represents a false pragmatism. True, his case for popular sovereignty was strictly constitutional, rather than broadly political. He may well have favoured a constitutional amendment banning abortion. (As someone who regards him as a moral hero and champion of life, I trust that he did). He made his argument in order to uphold the law and truth, a motive fundamentally opposed to Douglas’ own championing of lies.
Nevertheless, it is not possible to compromise on a matter as grave as the definition of human life. One cannot ensure the perpetuity of a union that remains divided on so fundamental a thing. America can no more have a patchwork approach to the question of the humanity of the unborn than it could over the humanity of the slave.
Overturning Roe will mean the recognition that each unborn child is a person who deserves the full protection of our law, or it will mean nothing at all. Even if an initial decision merely returns the question to the states, the Court will eventually have to backtrack or go further.
Either the unborn child is a person everywhere or he is a person nowhere. America’s cornerstone is either a denial of the unborn child’s life, or a recognition that he bears the image of God.
Matthew Schmitz is senior editor at First Things and a Robert Novak journalism fellow
This article has been edited to clarify Justice Scalia’s position.
This article first appeared in the July 6th 2018 issue of the Catholic Herald. To read the magazine in full, from anywhere in the world, go here