Abortion and the Court without Scalia

March 2 at the Supreme Court of the United States: the first time that there has been an oral argument in a case on abortion with one of the judicial chairs empty and draped in black; the first time in thirty years that the voice of Justice Scalia was not there to furnish sobriety and wit, and to temper the arguments.

For those who had come to know that voice well, its absence imparted a tilt to the proceedings. The liberal judges, favoring “abortion rights” were filled with a passionate intensity. They seemed now lifted to a higher plane of confidence. The conservative voices were overborne, with Justice Alito carrying the main burden by himself.

Justice Thomas has claimed that the oral argument makes little difference for the outcome of the case, and the outcome in this case may simply be a 4-4 split along liberal and conservative lines. If that’s the case, the result will be to leave standing the holding of the appellate court below, and sustain the pro-life measures that were being challenged in this suit, Whole Woman’s Health v. Hellerstedt.

The case of involved a scheme of legislation in Texas that enhanced the regulations of safety for facilities in which abortions were performed. Of this scheme, two points were being contested: (a) a requirement that the people practicing these surgeries had admitting privileges to a hospital within thirty miles of the place where the abortions were being performed, and (b) that abortion clinics come under the same, more exacting regulations that are applied to other “ambulatory service centers.”

As early as Roe v. Wade itself, the Court made it clear that it was willing to see regulations of safety enforced, even when they would restrict the range of choices that women were willing to risk.

But it was easy to anticipate that many of the people performing abortions would not qualify for admitting privileges at local hospitals. Some estimates had the number of clinics dropping from 40 to 20, or even 8. Under these conditions the challengers could invoke the test of whether the legislation imposes an “undue burden” on women seeking abortions.

The Solicitor General of Texas pointed out that the decision on abortion still rested in the hands of the woman mulling over the surgery. But the jural genius would now be concentrated on the question of whether the need to drive as much as 150-200 miles and possibly stay overnight in a motel was just too much of a discouragement.

The presence of an absence

The question never asked, of course, is whether any of these requirements were too much of a burden for people who were setting out to kill an innocent being for the sake of their own private interests.

That premise had to be purged from these hearings, because it was at odds with the deepest premises contained in Roe v. Wade on the rightfulness of abortion. And so the conservative judges had to move with pointed questions around the periphery of the problem.

With the decline of abortions, many marginal clinics were going out of business anyway, and there was a wave of consolidation, with Planned Parenthood opening up new, larger clinics, even in Texas.

Justice Alito asked for the evidence that any one of these clinics was driven out of business by the regulations. Justice Kennedy suggested that there was a need to consider the question of “capacity.” With new, larger clinics, a diminished number of clinics could still handle all of the abortions sought in Texas. And if so, the regulations could not be charged with diminishing the availability of abortion.

But of course it was precisely the purpose of the legislation in Texas, enacted by a pro-life majority, to put the clinics under pressure, with the hope that many would close. And yet, in the language of the legal proceeding, that plain fact could not be spoken.

Justices Breyer and Kagan would make much of the fact that there were many more complications arising from colonoscopies and liposuctions, and yet the casualties from those procedures do not seem to elicit the same concern from the legislators.

In the evolution of our “culture” it does seem now beyond the comprehension of the liberal judges that the legislators paid more notice to one of these medical procedures because it involves the killing of innocent babies on a massive scale. Just as the language is ruled out in the argument, that brute fact has been as thoroughly purged from the understanding of the liberal judges.

And yet we may ask: Why need the advocates before the bar make themselves complicit in this charade? Why would it not be possible to speak in this way:

May it please the Court, the case law on this subject cannot admit the possibility that the life extinguished in abortion has never been anything less than human and innocent from its first moments. That premise cannot be woven into our case law as it now stands. But the strictures of our positive law cannot compel people to blind themselves to the truths taught in every textbook on embryology, or to bar themselves from thinking or speaking the truth that everyone knows about the small lives being poisoned or dismembered in these surgeries. I reserve the right to speak that truth to myself even as I take up this argument in the only language this Court will now hear.


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.