The Court:  Looking for the Low Door under the Wall

In July 1989, there was rampant joy in the tents of the pro-lifers, for it looked as though the Supreme Court had taken a magnificent and decisive turn on the matter of abortion.  For the Court sustained a law in Missouri containing this preamble: that “[t]he life of each human being begins at conception.”

The statute went on to require a test for viability before an abortion on a woman thought to be 20 weeks into her pregnancy; and it prohibited the use of public employees to perform or encourage abortions, unless they were necessary to save the life of the pregnant woman.

The case was Webster v. Reproductive Health Services, and the Court sustained all parts of the law.  Justice Blackmun, in dissent, charged that this was, in effect, the overruling of Roe v. Wade, and the prolifers read it the same way.

And yet, the Court did stop short of overruling Roe, and that is what brought forth an earnest appeal by Justice Scalia that the Court should indeed have gone all the way.  But the opinion by the Chief Justice did indeed stop short.

The preamble declared the personhood of the unborn child, and yet no abortions had actually been barred in Missouri in acting on that premise. Nor were abortions barred yet after viability, even though the law required a test for viability.  And the fact that public employees and funds were barred from performing abortions did nothing to bar private clinics from providing the same service.

The State recognized the full human standing of the unborn child, but until the law actually started barring abortions, the statute would do little more than preserve the standing of the child in the womb as an inheritor of property, or as one who could be protected from harms, say, in accidents.

But the Chief Justice raised the telling question of why the interest of the State in protecting the child would arise at the point of viability and not earlier.  And that seemed to be the invitation that would mark the end of Roe v. Wade in only a case or two to come.  The unwillingness of the Court to take that last decisive step would work quite as well to instruct the lower courts to hold back in the same way.

Nevertheless, the decision set off a firestorm in certain parts of the country. Given the rising cohesion of the Democrats on this issue, the outburst of 1989 may come to seem a muted affair.  We have every reason to expect that the response will trigger fierce demands to pack the Supreme Court, enact Roe v. Wade as a statute, and encourage judges in the separate States to find a right to abortion in their own constitutions.

But as I noted in my previous column, the same concerns have flared again as the Supreme Court prepares to hear a case (Dobbs v. Jackson Women’s Health Organization) involving a statute in Mississippi that would indeed move past the marker of “viability” and protect the child at 15 weeks into the pregnancy.


For the Court simply to sustain this statute would be taken as a “limited” decision. And yet, as I wrote last time, this decision would indeed be seen as a move to put Roe v. Wade “in the course of ultimate extinction.”

The defenders of abortion will surely treat the decision as, in effect, the overturning of Roe.  The Court may look then for the “low door under the wall”: a means of sustaining the statute without setting off alarms.

The one strand that the Court might latch onto is the issue of pain: The State sought to argue that a limit of 15 weeks stands a better chance of sparing the fetus the excruciating pain of being poisoned or dismembered.

The question first came to the fore in the mid-1980’s and President Reagan picked up on it in one of his State of the Union Addresses. That was enough to catch the attention of the public – and the derision of the pundits.

Hearings were held then on fetal pain in Senate Committee on the Judiciary in May 1985. One of the contributors was my late, dear friend Daniel Robinson, who was a leading figure in the neural sciences, at Georgetown.   Robinson refuted the claim of one of the pro-choice doctors that a fetus cannot feel pain at 12 weeks – or even earlier.

Doctors on the other side testified that fetuses were not as likely to feel pain because their cerebral cortices were not well developed.  Robinson pointed out that “the anatomy of pain”. . .”does not seem to avail itself of any specific region of the cerebral cortex.”  He recalled cases of brain cancer where it was necessary to remove as much as half of the cerebral cortex, and yet the patients did not lose their sensation of pain.

The reaction to pain, he said, is reflexive; it depends on instant recognitions “for which the cerebral cortex may be utterly unnecessary.” And “when our hand touches a red-hot object we do not engage in syllogistic modes of deliberation in search of an appropriate response.”

But then he brought matters down to ground by asking, “What difference would it make? If the human fetus is regarded as human being deserving of our solicitude, then we surely would oppose its death even if pain were not involved.  After all, what is wrongful in abortion is the taking of a human life and this remains wrongful even if painless methods were developed and adopted.”

To uphold the statute out of a concern for fetal pain may be enough to avert a political storm; and yet five of the justices will know that the issue of pain is essentially beside the point.  If a storm will come in either case, they may decide then to end the moral charade and make, finally, the most coherent judgment they can make. But it will be no easy test of prudence.


*Image: The Autobiography of an Embryo by Eileen Agar, 1933-34 [The Tate, London]. Agar described the work as “a celebration of life, not only a single one, but Life in general on this particular and moving planet. I wanted to make it into a story as if told to a child, not into a scientific thesis.”

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.