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

Hadley Arkes

Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College. He is also Founder and Director of the Washington-based James Wilson Institute on Natural Rights and the American Founding. His most recent book is 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 now available for download.

  • samton909

    The question starts to be “Is Justice Kennedy the worst justice ever? Is he our modern day Roger Taney?” After all, in Casey his profound Constitutional reasoning said “Gee, we can’t overturn Roe – too many people would not like it because they depend on abortion” And his reasoning in Obergefell was “Gee, if some people get married, then the constitution demands that everybody can get married”

    We might as well have Barney the purple dinosaur on the Supreme Court.

    • Richard A

      Poor Justice Kennedy. Whenever there’s a crucial case before the court involving serious moral issues, we wonder if he’s going to show up brain-dead or brain-alive. There are four justices on the Supreme Court who were appointed because they would be reliably brain-dead every single time.

  • Michael Dowd

    How about a permanent Abortion Holocaust monument in Washington, D.C. located at the National Shrine of Immaculate Conception or in some other prominent place. The monument would show the ascending number of abortions since Roe vs. Wade. Would Cardinal Wuerl have the courage to do this? Raising the money for it would be easy and a good way to focus national attention of abortion. If the Catholic Church made a real issue of abortion by making voting for abortion promoting politicians a sin it would not be long before action would be taken by the Supreme Court, which is very political, or the politicians themselves.

    • Oscar Pierce

      If our Church would EMPHASIZE that support of abortion promoting politicians is a sin as in para 1868 of our Catechism….

    • Kathy

      I love this idea and would support it with my last cent.

  • We need a real right to life amendmend. One guaranteeing the personhood of every genetic individual of the species homo sapiens, from conception until natural death. Every child condemned to abortion deserves an advocate who will inform the mother on the services available to help her to choose life. Every child born, deserves food, clothing, shelter, at least at a basic level. Even if it is just a bed in a flophouse. Every terminally ill patient deserves end of life care that respects their life.

  • Veritas

    This is a battle for the hearts and minds of our people. This is where the battle line stands. Changing a law or overturning a decision will not alter the fact that a large number of the public are ok with abortion, no law will stand, no amendment stands a chance of passing unless we show that life matters and is sacred, especially at its most vulnerable.
    This is not an impossible task in a country that will spend thousands to save a stranded whale, or a puppy caught in a drain, it simply requires showing that human life is undeniably beautiful

    • I agree with Veritas and Theodore Seeber below. Forget changing the law. It isn’t going to happen in your country or here in Canada where I live. It’s up to each individual who believes in the dignity of life to continue to speak up, as Seeber says, to be an advocate for every pregnant woman and unborn child. The Church needs to do the same, to promote life as sacred and provide care and support for those in need before and after birth. The Church needs to focus on reaching hearts and not wasting time condemning politicians or judges.

  • Chris R

    I disagree with Arkes critique of conservative jurisprudence. The court just rejected the abortion bans in Arkansas and North Dakota. These legislative and executive actions are good, but pretty fruitless because of the judicial abuses.

  • grump

    The makers of videos exposing Planned Parenthood as baby killers and obscene profiteers have just been indicted, proving once again that the innocent are punished while the guilty go free. It seems your optimism for reversal, professor, is mere wishful thinking.

  • PCB

    Dear Prof. Arkes, I am sorry it had to fall on your shoulders to make such a disheartening, discouraging, and yet, realistically sober assessment as to the ultimate likelihood of overruling Roe. I know of none other more qualified than yourself to draw such conclusions, so the portents of your words are even more harrowing for me to read. However, I am encouraged that you have suggested a path towards countering, even reversing by measure, the destructive impact of Roe; a path I know you have made your lifes-work in straightening and leveling.

    In light of the shear millions of innocent lives destroyed in U.S. in the forty years plus since the Roe decision, can anyone every again wrongly judge those Jews enduring the horrors of the Holocaust for faltering in their faith and belief in God?

    I do not think it too melodramatic to state; it takes an extraordinary faith indeed, to persist in the face of such horrific carnage perpetrated on innocent life in our country every year.

    And, yet as many Jews still mustered the faith and courage, even during the Holocaust, and each year since, to gather around the Seder table and say, “Next year in Jerusalem”. Pro-life Americans, especially Christians, must also endure faithfully in midst of this present day holocaust and have the courage to say, again, “Next year in D.C.”

  • Fr. Peter Morello, Ph.D.

    I’m not quite sure Dr Arkes that Roe cannot or should not be overturned. Changing the mind of the nation on abortion now seems beyond reasonable expectation as is similar regards Congress. The argument would have to be different than conservative jurisprudence as you rightly argue. The gist of your argument is if there is nothing in the Constitution about a right to abortion therefore there is no ground on which federal judges can proclaim a new federal right “to sweep away the laws on abortion in the states.” If the Supreme Court were to find grounds on protection of a civil right the right to live of human life the moral argument, civil rights being the major reason for instituting the Court, the Court would establish a moral consult for a conflicted nation. If it does not affect state laws that would nonetheless perhaps move thought and mores in a favorable direction. The Supreme Court addresses the Constitution, State Law that is most states adapted the Common Law of England mandated by the King in the Royal Charter prior to independence and most states retained it in their state charters. Most American states then have different precedent in Common Law which although there may not be direct reference to abortion there are related laws that may provide inference. I would like to know if there is merit in that approach.

  • Manfred

    It is important to note that ten of the original thirteen colonies forbade Catholics from living in them. Contraception, abortion and legalized sodomy are as American as apple pie. They are among our greatest exports.

    • kilbirt42

      But the Toleration Acts of Catholic Maryland and Protestant Rhode Island are eventually what won the day in Philadelphia of 1787.

  • Kathy

    While I agree with the premise of your piece, Dr. Arkes, I must also add that it is the Church who has to stand against this evil. You might say that this is already happening, however, in my community, inside my Catholic Church, the murder of almost 60 million innocent lives is an aside, maybe brought to the spotlight once in October and once in January. I will give you one frustrating example: On the morning of the March for Life (after the Respect Life Ministry had to cancel our bus due to horrible weather) we had an early Mass. The priest mentioned the March, but stated that at least we have been given a respect for life (I would certainly hope so) and it especially makes us appreciate the disabled and elderly. It’s enough to beat your head against the wall. If the Church does not take a stand (and a LOUD one) from the TOP down, the culture will never change. There is too much money to be made in filling legislative Democrats’ pockets and filtered into the collective judicial pocket by special interest. The greatest disservice Pope Francis has ever done is accuse us of talking too much about abortion. Dear Jesus, when will your ‘shepherds’ ever get it?

  • givelifeachance2

    The march for life fails because it does not get Miked like the civil rights march did though prolifers keep hoping it will. Time to get another plan that occupies the other 364 days of the year.

  • Quo Vadis

    If we should pray for anything it is for “enlightenment” of the members of the Catholic Church who consistently vote for democrats who in turn vote for the laws and judges that promote abortion.

    And of course for the so called Catholic politicians who vote for those laws. And lastly for the Bishops who refuse to publicly condemn them.

  • Patsy Koenig

    Historically, married women have taken care of babies, children, the sick and the elderly. The end to abortion and euthanasia is in Holy Matrimony. Return to the sanctity of marriage and you have solved the sanctity of life problems.

  • lwhite

    I can’t agree with Mr. Arkes’ assessment that “the capacity for moral reasoning has never left the public”.
    The majority of the public, all ages, all backgrounds, the university-educated and the high school dropout, the rich and the poor-have re-defined the word moral as an application of what they personally believe to be right or wrong with the added caveat that they do not have the right to “impose my moral standards upon others.” They do this in defense of what they wrongly term “liberty”.
    With the misunderstanding of what the term liberty means, (the freedom to believe in and practice the true faith revealed by God to be the Catholic faith), moral standards are impossible to define and even if they could be defined, would always change as any powerful group could convince the majority that one or more of those standards was a direct attack on liberty. We know this is true by simply looking around us today and remembering the recent legalization of sodomitic “marriages”.
    Liberty to the modern mind means license to act in whatever manner one chooses as long as it is lawful (which too, always changes), and “doesn’t hurt other people”. That an individual’s act can and does have harmful affects on others, people usually never consider, so they easily justify their acts and happily go about hurting others at times without admitting they have. The numerous harmful affects on others includes, of course, cohabitation, contraception, divorce, abortion, adoption of children to sodomites, the abuse of drugs and alcohol, fatherless children, single parents by one’s choice, and so on. Of course all of these harmful affects on others would not occur or would lessen if Catholic moral standards were the norm.
    The holocaust against the unborn, against the terminally ill (assisted suicide), against children born and adopted by sodomites, against women and men (contraception, divorce), and against true liberty will continue unless and until man returns to the knowledge and acceptance that human life is a gift from God and that it is God who has Supreme Authority over man, but with that Authority revealed those rules upon which man can live in joy, in peace, in harmony with his fellow man, and most of all, please God.
    The Catholic leaders in this country have not accepted and defended the true meaning of liberty nor have they been one voice in defending any of the moral teachings of the Church. In fact, they have been complicit in the rejection of Catholic moral standards-or any moral standards-through their cowardly “seemless garment” approach by claiming there are different standards of seriousness of sins, placing all of them on a level where the individual’s “conscience” is the only authority by which one acts morally (or rather immorally).

  • kilbirt42

    The American law on abortion prior to Roe v Wade was not exactly congruent with Catholic moral teaching, but then how could it be in a democracy where the vast majority was still Protestant.

    Moreover, public law usually sets a lower standard than what a sound moral conscience would allow.

    But, the law should support the public’s general sense of morality, of what is decent, right and proper.

    There are no better words to describe what the Court did in 1973 than those of Justice White who characterized the Court’ decision as the raw exercise of judicial power.

    It was an act of legislation that repealed the democratically established statutes of the fifty states mocking the very notion of government of, by and for the people.

    Congress might consider restricting Federal Court Jurisdiction on the issue of abortion. Also defund Planned Parenthood and allot those funds to health organizations that do not perform abortion.

    Were Roe to be overturned tomorrow, as clearly it should be there would be several states that would allow the Roe edict to continue in large measure.

    Sad to say but many of those states would be precisely the states where Catholics once had influence and that were JFK’s base in 1960.

    We frequently blame the Bishops for this phenomenon. I blame the Catholic laity whose secular leaders were only personally opposed.

    Joe Biden is a perfect example, a “de fide” Catholic personally opposed but voting to fund the eugenicist at Planned Parenthood. The late Teddy Kennedy made a scurrilous assault upon a good man, Robert Bork. Mario Cuomo likened opposition to abortion as the functional equivalent of passing a law to require abstinence from meat during the Fridays of Lent or attendance at Mass on Sunday, as if it were purely a matter of religious observance, and as if he were totally unaware that most of those pre-Roe statutes were the products of a Protestant Christian culture.

    They suffered under an inferiority complex, still feeling they had to prove their secular bona fides. By allowing no one to get to their left on abortion.

  • bernie

    The last 30 years have been focused
    essentially on education. Though we have not succeeded in changing
    enough hearts to get the law of the land changed, we have certainly
    maintained a quasi majority status of anti-abortion sentiment. What
    we need now is flat out political action to elect pro-life
    politicians of whatever stripe – R,D,I. If we are truly convinced
    that abortion must end as a legal choice, we must rise above Party
    and base our consolidated opposition on a single issue. It is,
    afterall, more important and elemental than any other. No issue
    transcends it. A National caucus of registered voters at every level
    is the only way left open to us. Other allied issues that emanate
    from the empathetic mind of voters will surely append themselves to
    candidates qualified by the single issue. I propose a National
    Pro-Life Caucus of Registered Voters. National in scope,
    computer based, organized and maintained at every subsidiary level of
    American life and answerable to the one norm of ending abortion
    through the American system of political action. The National
    character of the PLC would exist only to validate local groups.

    Most elections are swayed by a small
    percentage of votes. Coming together around a pro-life candidate
    would be both an inducement and powerful tool to gain our objective.

  • DLink

    Conservatives are quite ready and willing to do what they can to at least restrict and minimize abortions but it would help if some of clergy, and especially bishops, acted with a little more vigor to imposed sanctions on “Catholic” politicians who support abortion and to speak out a little more loudly in public forums. A condemnation of the democrat part in the same manner Pius XII condemned the communist party would be in order also.