The Mild Achievements of the Roberts Court

We are bracing for the hearings, coming soon, over Elena Kagan. The search for nuances will be essentially beside the point. For she would never have been nominated to the Supreme Court if there had been the least doubt that she is anything but a firm, reliable vote to sustain, not only the fullest sweep of “abortion rights,” but the whole package that comes with the jurisprudence of the Left. It doesn’t take the Great Karnak to predict where she will come out on racial preferences, stem cells, gay rights and yes, even same-sex marriage.

With fifty-nine Democrats in the Senate, she seems, right now, a safe bet for confirmation. Still, if the Republicans, as the pro-life party, could summon their wit, the hearings could be used to break out to the public some rather precise things about the jurisprudence of abortion rights; things that the Democrats, and their friends in the media, have never thought it important to broadcast to the public.

In the meantime, the fixation on the hearings may distract us from seeing other parts of the legal landscape. For one thing, the focus on the courts may mask the fact that the political branches, the Executive and the Congress, have their own responsibilities in interpreting the Constitution and shaping policies over matters like abortion. There is the risk of slipping into the assumption noted by Professor David Forte: that the president is important mainly as the Chief Elector – as the one who nominates the people who will truly rule us as members of the Supreme Court, those political men and women who may hold office for life without the need to run for reelection. But on the other side, we may readily overlook what has been accomplished now by the Roberts Court, especially with the advent of Samuel Alito.

Elena Kagan would simply replace a fixture on the pro-abortion wing of the Court. That is not altogether good, but it does not by itself disrupt what was accomplished by the majority that came together to sustain the federal bill on partial-birth abortion in 2007. To be sure, this achievement may be qualified by the presence of Justice Kennedy, always wavering and wobbling as the swing vote. The meaning of Gonzales v. Planned Parenthood would be far clearer if Kennedy had not held out the possibility that this ban on partial-birth abortion might conceivably be unconstitutional under certain rare circumstances.

Still, with the decision in Gonzales v. Planned Parenthood, the majority of five members seemed to be saying essentially this: that “we are in business now to start hearing, and sustaining, a host of measures, emanating from the states, and putting restrictions on abortion. We are prepared to entertain seriously the argument that abortions, under certain conditions, may rightly be restricted and even barred.” What may surprise people is the willingness of Justice Kennedy to sustain those restrictions, step by step, even though he has been unwilling to see Roe v. Wade overturned in any dramatic, sweeping gesture in a single case.

And so to our friends active in the pro-life movements of the various states: this is your moment. No matter the size of the state, any serious restriction on abortion will be contested instantly by Planned Parenthood. What can come out of this is a series of legislative moves, challenged and tested in the courts – and, we have reason to hope, sustained now in a train of holdings that may accumulate. Each decision may encourage the enactment of similar measures in other states, and impart the momentum to push yet a step or two further. The trick is for Roberts and Alito to keep Kennedy with them in a series of narrow, but significant holdings.

But the question is whether these bills will be guided by a strategic sense, or by an understanding of the matters that go to the core of the issue in principle. Do they lay the groundwork for recognizing the human standing of the child in the womb, or do they touch the periphery of the problem? Some of these bills seek to discourage abortions, even though they have to steer away from facing the main question.

And so we have, among the useful measures brought forth in Oklahoma, a bill that required the abortionist actually to be in the room when the abortifacient RU486 is administered. But the pro-lifers in that State managed to pass something truly running to the root when they passed HB2656. That bill denied claims of “wrongful life” for those who argued that a disabled baby would be better off if she had been aborted. The law inscribed something resoundingly right when it proclaimed that “the birth of a child does not constitute a legally recognizable injury.”

As we have seen over the years, the risk is to get so carried away by concerns for “marketing” the pro-life message – finding what “works” – that the pro-lifers begin to lose their focus on the killing of an innocent being as the moral center of the problem. We have ample reason to hold, for example, that “abortion is not good for women.” But many women will of course contest that point, as they offer a different view of what serves their notion of a “good” for themselves. What they cannot contest is the human standing, and the innocence, of the child they are willing to sacrifice.

Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College and the Founder/Director of the James Wilson Institute on Natural Rights & the American Founding. He is the author of Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. Volume II of his audio lectures from The Modern Scholar, First Principles and Natural Law is available for download. His new book is Mere Natural Law: Originalism and the Anchoring Truths of the Constitution.