The March for Life and the Emptiness of Conservative Jurisprudence

The March for Life, again, in the bitter cold of January in Washington. I was present at the first one, and every year it has lifted my spirits. As the figures on abortion mounted each year – as they approached the level of the Holocaust, with six million dead – we couldn’t believe that this situation could be sustained much longer. And yet, we gravely underestimated the way in which ordinary people could simply shake off that sense of something wrong, and settle in with this new “right” as a part of the landscape.

But the drift of opinion has also exposed the poverty of “conservative jurisprudence” as the most serious critique that conservative lawyers and judges could mount in explaining the wrong of Roe v. Wade in our constitutional order. As the argument has run, the Constitution says nothing about a right to abortion. Therefore, there is no ground on which federal judges can proclaim a new federal right, embedded in the Constitution, and sweep away the laws on abortion in the States. The remedy then is to overturn Roe, and return the matter to the political arena, to legislatures and to the people who elect them.

The March to Life has absorbed that sense of things over the years, and so the shouts have ever arisen from the Marchers, “Roe v. Wade has got to go.” And the March finds it terminus at the Supreme Court; the site from which the wrong had emanated; the site from which the correction needs come.

The March then confirms the sense that we need to pray to the judges assembled in that building to deliver us from this evil they installed. And we hear again that a new president may appoint the judges who will either overturn Roe or entrench it beyond recall. But this view carries the notion, marked by my friend David Forte, that the president is the Chief Elector, the one who will choose those men and women who truly will govern us.

And perversely, attention is diverted then from the real levers – and the real responsibility – that reside in the hands of the political branches, in the Executive and Legislature, to counter, to narrow, and eventually even to overturn decisions of the Supreme Court.

That was done with the decision in Dred Scott on slavery, and it could be done today through a series of measures already in the hopper, or already in prospect. Roe v. Wade could be cut back, step by step, until it is but a shell, or a façade, emptied of substance. The measures are already percolating in a Congress filled with pro-lifers on one side of aisle, but they require a president willing to sign these discrete measures into law. To rework an old phrase, “Start signing these measures – and more will come.”

The 2016 marchers in Washington, D.C.
The 2016 marchers in Washington, D.C.

“Conservative jurisprudence” railed against Roe v. Wade for the sin of moving beyond the text and engaging in moral reasoning about the substance of the law on abortion in Texas. It was bad moral reasoning, quite detached from the facts of embryology and the discipline of principled reasoning. But in the genius of conservative jurisprudence, the best way to avoid bad moral reasoning is to avoid moral reasoning altogether about the moral substance of the law – as though the law, and the enterprise of judging, could indeed be detached from reasoning about the things rightful and wrongful, justified or unjustified.

In a fine book, Slavery, Abortion, and the Politics of Constitutional Meaning, Professor Justin Dyer showed that the proper path for the judges in Roe was indeed to pay serious attention to the briefs offered by the attorneys in Texas. Those briefs sought to show why it was eminently reasonable to regard the life of the offspring in the womb as irreducibly human life, and why the laws cast up for the protection of human life would surely have to encompass that small human in the womb.

But at the same time, the dramatic shift of opinion on abortion has swept beyond the clichés of conservative jurisprudence. If the Supreme Court explicitly overturns Roe, we have already seen courts in the separate States ready to find a right to abortion implied in the text of their own constitutions. And after all we don’t need a text all the time. Some of the most critical parts of our jurisprudence cannot be found in the text of the Constitution – e.g., “presumed innocent until proven guilty.”

Implicit in the logic of law is that “all similar cases should be treated equally, under like rules.” It does not take much imagination for judges then to invoke that principle of “equality” and say that there must be something deeply wrong in laws that forbid surgeries that are performed solely on women.

In other words, once the sense of the unchallengeable rightness of abortion has permeated the land, we are past the point of finding the remedy in overruling Roe. The remedy can only come through a series of measures, passed in Congress and the States and engaging, step by step, the moral assent of the public – that it would indeed be rightful, say, to stop the killing of babies with a beating heart.

The wrong of Roe can be remedied now only by stirring again the capacity for moral reasoning that has never left the public, and may be jump-started yet even among judges.

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.