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Judicial Statecraft – and Myopia Print E-mail
By Hadley Arkes   
Tuesday, 15 February 2011

Our colleague Peter Brown has recently raised the concern in these columns that Roe v. Wade will indeed continue to be hard to overturn, and yet even worse: that Roe has so altered the culture in which some of us had grown up that the casual acceptance of abortion may continue even after Roe has faded from our law and our memories.  

But the point reveals its own converse. It was the change in the laws – brought about by Roe, sweeping away protections from the child in the womb, dissolving at the same time the moral inhibitions on throwing away that life of the unborn child – that reshaped the culture.   And in that case we can hardly begin by assuming that the gradual change back in the laws – the gradual cutting back of Roe, the gradual extending of protection to child, the step-by-step restoration of moral inhibitions – may have no effect in turning the culture back yet again to that reverence for life, long woven into our laws, and never – never – fully purged from our people.

Back in 1989, in the case of Webster v. Reproductive Health Services, the Supreme Court made what looked to be the first move to return the issue of abortion to the legislative powers of the states. With Chief Justice Rehnquist writing, the states were invited to protect the growing infant in the womb even before the onset of viability. But that move set off a virtual firestorm in parts of the country, especially in New Jersey and New York. 

Certain people were panicked that they would be deprived overnight of a “right” that they regarded now as more fundamental in their lives than the freedom of religion and speech. And some pro-life politicians in those areas, losing their nerve, flipped overnight.   But as I’ve argued in these columns, even Justice Kennedy has been willing to join a five-person majority to keep sustaining pro-life legislation, moving step-by-step, bringing the public along with each step, getting people more and more confirmed in the notion that some abortions may rightly be restrained. And with each step stirring no panic in the land. 

At the same time, we’ve seen the movement in public opinion, as a majority of people in surveys now count themselves as pro-life, with that movement especially noticeable among the young. We cannot discount the experience that has altered minds, and triggered even in the young a minor recoil from abortion. Still less should we discount the effect of legislators, in pressing on, keeping the issue before the public. We’re reminded of some old lessons: that there is an “art of overruling,” better and worse ways for bad cases to be undermined until they are finally, in a shorter step, toppled.

        A majority of people in surveys now count themselves as pro-life. [Gallup]

In the meantime, as our colleague notes, most people in the country will be within a one-day drive of a state with liberal laws on abortion. But as that savvy Washington hand, Donna Fitzpatrick Bethell, observes, it may make a notable difference that the people setting off in their cars understand that they are driving now because what they are doing is regarded where they live as something shady, unseemly, disreputable.

Part of my concern then for the pessimism shown by some of our friends is that it backs into the assumptions of Judicial Supremacy. It assumes, first, that nothing much may be done by the political branches of the government, until the Court overturns Roe. It discounts what the Court may do in collaboration with pro-life legislators and executives in sustaining new measures to cast barriers before abortion and encourage protection for the child. 

And yet more than that, it settles in with the myopia that now seems to afflict so many people who do “conservative jurisprudence.” The assumption seems curiously and firmly entrenched that the Supreme Court can do nothing more than return the subject of abortion to the states. But the Court, for over a hundred years now, has cultivated the precise questions to ask when local governments withdraw the protections of the law from those human “persons” who happen to be Chinese, resident aliens, or people afflicted with disabilities.  

The Court has sharpened its collective wit over the years in detecting reasons quite “arbitrary” for removing a whole class of human beings from the circle of “rights-bearing” beings. We have these small beings who cannot, we know, be anything other than human at every stage of their lives. Their human standing does not depend on their height or weight, or facility of speech. Are they to be withdrawn from the protections of the law – or the category of “persons” – because they have not developed their limbs or their powers of speech? Other persons have lost limbs and speech without losing the protection of the law.  

On all of this we may have more to say in another column. But we should note that there is nothing here arcane, nothing here that does not readily fall into the ensemble of tools that the judges have long used. Nothing in the Constitution stands in the way; indeed the very principles of the Constitution become the sources of the principled questions that bring focus to the problem. For the judges it is mainly a matter of recalling what they’ve known all along, and with their imaginations gently opened again, looking anew.

Hadley Arkes
is the Ney Professor of Jurisprudence at Amherst College. His most recent book is 
Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law

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Comments (3)Add Comment
written by Dan Deeny, February 16, 2011
Great article! Mr. Arkes is always helpful.
written by peterbrown, February 16, 2011
Thanks for your thoughtful response, Dr. Arkes.

But do you really think it is possible that the court will ever find a constitutional right to life and not simply return the issue to states? I ask because the guiding assumption of conservative jurisprudence in the last 50 years has been a lot closer to the legal positivism of Robert Bork than the natural law of, say, Aquinas. Getting 5 votes to overturn precedent is hard enough, let alone finding 5 votes to actually ban abortion. Overturning Roe and returning the matter to states seems like the best we can hope for in the current climate, no?

And I do think the broader question is whether the overall prolife strategy depends a bit too much on the whims of Anthony Kennedy and the fortunes of the GOP. It's the best shot for the moment for sure, that Kennedy will change, and Obama will lose in two years... but if it doesn't happen and Obama is reelected in 2012 and come 2016 we are looking at even worse math on the court, then I think this question of long term strategy will have to be revisited!.
written by Lee, February 16, 2011
I have to say that I find Professor Arkes' optimism far more appealing than the contrary outlook. It's also more energizing, more effective -- and in the light of faith -- more warranted. After one of his famous joint debates with Senator Stephen Douglas in the 1858 Illinois US Senate race -- a debate that had taken place in Cairo, Illinois, deep in the slavery-sympathetic southern part of the state, during which the audience was quite hostile to Lincoln's position -- a young supporter of Lincoln's, sitting in Lincoln's car on the train back to Springfield, was looking sullen. Lincoln asked him what was the matter. The youth replied that it seemed to him that slavery would never be abolished in our country. Lincoln replied, "Nonsense! Slavery is doomed, because it is an evil, and an evil cannot bear being discussed." Lincoln went on to note that his debates with Douglas were being picked up and transcribed verbatim in newspapers throughout the country and added, "by discussing slavery, we are teaching millions of men to hate it who may not otherwise have given it much thought." Similarly, abortion is an evil. Evils are always overthrown. We know not when or how, but we know it will be. If we join the struggle against it, we know we are on the winning side.

And, as Professor Arkes notes, we already have fundamental law in place in our country that is diametrically at odds with any supposed "right" to abortion - as well as a history in which judges have been willing to apply that law to protect disfavored members of the human family. Here I think, for example of the 1948 Supreme Court case of Shelley v. Kramer, where the Court held that racially restrictive covenants on real estate (which prohibited the sale of houses in certain neighborhoods to persons of African descent) could not be enforced by state courts, for to do so would constitute "state action" that violated the 14th Amendment's Equal Protection Clause. Well, the 14th Amendment already has a clause forbidding any state from denying any "person" the "right to life" without due process of law. It would require the right context to present the question, but were it to be presented, all the Court would have to do would be to find that "person" for purposes of the Fourteenth Amendment includes the unborn. Such a ruling would require every State to afford protection to unborn life, and to refrain from any "state action" to the contrary.

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