Geez, I get to write about what I want so seldom these days…
Yes, yes: Politico has leaked a draft Supreme Court opinion, purportedly written by Associate Justice Samuel Alito, which strikes down the 1973 Roe v. Wade decision. The majority opinion in that case was written by Associate Justice Harry Blackmun. Of the two dissents from it, the most memorable was the one written by Associate Justice Byron White, who called the decision “an exercise in raw judicial power.” Controversy of several kinds has swirled around the decision ever since.
Controversy will surely swirl around this one, if it’s delivered as Politico has reported it.
I fear developments of several very ugly kinds, including violence. The Left has made violence and intimidation into its key weapons these past few years. It’s likely to haul them out again for this occasion, as no issue other than abortion-on-demand unites Leftists with such fervor. But to get the level of violence the Left seeks will require that people remain essentially ignorant both of the original Roe v. Wade decision and the legal consequences of its reversal. So I’m here to change that.
First, the Roe decision did not enshrine a Constitutionally protected right to abort. It simply struck down any state laws pertinent to abortion, under a rationale that abortion exists within a Constitutional “zone of privacy.” It also established the “trimester” scheme under which the states would still have the power to regulate or ban abortion in the last trimester of pregnancy. The contradiction between those two assertions has seldom been addressed, yet it is vital to understanding why Roe is considered bad jurisprudence by so many Constitutional scholars.
Second, reversing Roe would not establish a federal ban on abortion. It would merely return the question to the legislatures of the states as had been the case before Roe, when some states forbade abortion completely, some regulated it heavily, and others paid it no attention. It’s a good bet that the more left-leaning state legislatures would permit abortion virtually throughout pregnancy, while the more right-leaning ones would either ban it or regulate it heavily.
Third, we have the related issue of stare decisis, “Let the decision stand” in English: the guideline under which the Court has tended to reaffirm previous decisions rather than strike them down. Stare decisis is not Holy Writ. It appears nowhere in the Constitution. It’s merely an expression of the Thomist maxim that stability in the law is itself a public good: i.e., that changes to the law, even when they’re right and necessary, will always come at a cost. When the cost of an immediate, dramatic change would be severe, the change must be phased in or smoothed out in some way, to give private citizens ample space and time to adjust their plans in light of the new state of legal affairs.
Given the factors above, if there’s a great foofaurauw over the reversal of Roe as I expect, it will be founded on misconceptions throughout. But we have yet to address the extra-legal aspect of a reversal of Roe: the moral dimension. This is far and away the most important issue of all.
The authority of the Supreme Court, while high, is not supreme above God’s Will. If you regard the developing embryo / fetus as an innocent human life, which I do, then abortion is morally wrong. The Fifth Commandment (Catholic enumeration) forbids it. Whether Roe is reversed or allowed to stand, it would change nothing. No law, and no court decision, can affect the moral quality of any action. As Herbert Spencer said a century and a half ago:
I asked one of the members of Parliament whether a majority of the House could legitimize murder. He said no. I asked him whether it could sanctify robbery. He thought not. But I could not make him see that if murder and robbery are intrinsically wrong, and not to be made right by the decisions of statesmen, then similarly all actions must be either right or wrong, apart from the authority of the law; and that if the right and wrong of the law are not in harmony with this intrinsic right and wrong, the law itself is criminal.
Whether the Alito draft decision will stand as leaked, and what the temporal consequences will be in either case, we can only wait and see. As for the eternal consequences, your conscience – the channel through which God speaks to each of us of right, wrong, and His Will – must be your guide. As it was in the beginning, is now and ever shall be, world without end.
Have a nice day.