Abortion and Justice

National Review Online | Published on

By Edward Whelan

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Amidst all the speculation about John Roberts’s views on abortion, I am certain that Roberts will not be a “pro-life” justice. Indeed, there is absolutely nothing in his record that would remotely support the misplaced hopes of some and fears of others on that point. To the limited extent that political labels can properly apply to judging, what all Americans should hope is that Roberts will prove to be a genuine moderate on abortion. Let me explain.

There are, broadly speaking, three competing positions on what the Constitution says about abortion.

1. The pro-abortion position. The first position is that the Constitution prohibits, to one degree or another, laws that protect the life of an unborn human being against her mother’s desire to have her killed. In Roe v. Wade, the Supreme Court adopted an extreme version of this “pro-abortion” position. The Court invoked the Due Process Clause of the Fourteenth Amendment — which provides that no state shall “deprive any person of life, liberty, or property, without due process of law” — to overturn the abortion laws of all 50 states. The Court ruled that the Due Process Clause prohibits protection of the lives of unborn human beings at any time through the second trimester. And even from viability until birth, the Court, under the predominant reading of Roe‘s companion case, Doe v. Bolton, requires that abortion be available whenever the abortionist determines that it would serve the mother’s well-being.

As a number of honest liberals have long recognized, as a matter of constitutional law, this pro-abortion position is indefensible. Nonetheless, with minor modifications, a five-justice majority ratified Roe in the 1992 ruling in Planned Parenthood v. Casey. In so doing, these justices declared, “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.” What this vacuous New Age declaration — which has now been embraced by six of the current justices — really means, of course, is that those justices claim to have the unconstrained power to define for all Americans which particular interests those justices think should be beyond the bounds of American citizens to address through legislation.

Fittingly, this radical claim in Casey was accompanied by the majority’s bizarre “Nietzchean vision” (Scalia’s apt label) of the Court’s obligation to adhere to even wrong precedent, lest Americans’ “belief in themselves” be undermined. (Not surprisingly, the justices in the Casey majority blithely cast aside this supposed regard for precedent in Lawrence v. Texas when they encountered a precedent they didn’t like.)

2. The pro-life position. A second position is that the Constitution prohibits, to one degree or another, laws that permit abortion. Under this “pro-life” position, unborn human beings would be recognized as “persons” for purposes of the Due Process Clause. The argument for this position would begin with the historical fact that, prior to Roe, the American tradition long provided broad legal protection for the lives of unborn human beings from the time that those lives were understood, in light of the biological knowledge of the age, to commence. It would build on the modern advances in embryology and genetics, which establish that the life of each individual member of the species Homo sapiens begins at conception. Consistent with the American tradition, this pro-life position might allow limited exceptions for abortion — for example, where continuation of the pregnancy threatened the life of the mother.

This argument is far more credible than the position taken by the Court in Roe and Casey. Indeed, advocates of the “living Constitution” ought to embrace it, as it combines respect for America’s traditions with an updated scientific understanding. Nonetheless, I believe this position to be incompatible with a proper originalist understanding of the Due Process Clause.

3. The substantively neutral position. The third position is that the Constitution generally does not speak to the question of abortion. Under this substantively neutral position, American citizens would have the constitutional power to determine through their state representatives what the abortion policy in their own states would be. This neutral position — which three members of the current Court, Rehnquist, Scalia, and Thomas, embrace — also happens to be the proper reading of the Constitution (as I explain more fully here).

Insofar as sensible political labels might be applied to these three positions, it would seem plain that the first (pro-abortion) position would be labeled liberal (with the Roe version of that position being radical), the second (pro-life) would be labeled conservative, and the third (neutral) would be labeled moderate.

Of course, sense does not prevail in the frenzied abortion culture in which we live. Thus, the media routinely label the radical pro-abortion position as “moderate” and the substantively neutral position as “extremist right-wing.” And, of course, the media consistently understate the radical nature of the Roe regime (often pretending, for example, that Roe merely protects abortion in the first three months of pregnancy), confuse the public into thinking that reversing Roe would render abortion illegal, and then cite the public’s resulting support for the imagined Roe as supposed evidence of Roe‘s moderation.

As a deputy solicitor general in President George H. W. Bush’s administration, Roberts co-authored briefs that reflected the administration’s sound view that the substantively neutral position was the correct constitutional position. There is, unfortunately, no particular reason to infer that the position taken in those briefs reflects Roberts’s own constitutional reading. In those cases, as in all the other briefs that Roberts wrote in government and in private practice, he was acting as an advocate for his client.

Increasing numbers of observers across the political spectrum are coming to recognize that it is well past time for the Supreme Court to restore abortion policy to the people and to the political processes in the states. As Scalia observed in his Casey dissent, the Supreme Court’s unconstitutional power grab on the abortion issue in Roe “fanned into life an issue that has inflamed our national politics ever since.” “[B]y foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences,” the Court has profoundly disrupted the proper functioning of the American political system.

John Roberts is, by all accounts, a man of deep intellect and high character who understands the proper role of the judiciary in our constitutional republic. There is therefore good reason to hope that he will be a genuine moderate who will not read his own policy views on abortion (whatever they are) into the Constitution but who will respect the constitutional authority of the people to govern their own states and communities on this and other issues of social policy.

Edward Whelan is president of the Ethics and Public Policy Center and is a regular contributor to NRO’s “Bench Memos” blog on judicial nominations.

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