My dear friend Hadley Arkes deserves praise for his perseverance in pressing Congress to protect children who survive an abortion, as he did at some length on this site a week ago (here). Some might think that The Born Alive Act is unnecessary after the Supreme Court’s decision in Dobbs, overruling Roe v Wade, and given the passage of state laws even more protective of unborn life, such as heartbeat bills. But as Arkes demonstrates, the killing of born alive babies continues.
In the face of the moral persuasiveness of the pro-life position – enunciated in scores of state laws that affirm the humanity of the unborn child – pro-abortion advocates seek the unlimited power to terminate the life within the woman, as well as the life of the newly born, moral considerations notwithstanding. They simply won’t listen or care to respond to the argument for life. The Born Alive Act, pressed for so long by Arkes, then affirms what the abortion lobby refuses to recognize – that there is, after a failed abortion, a human being here, one who is as much a right-holder as an 80-year-old man or, indeed, of a 20-year-old pregnant woman.
I differ only from my friend when, towards the end of his essay, he uses the House-passed version of the Born Alive Act to attack Justice Samuel Alito’s majority opinion in Dobbs, and to question what he calls “conservative jurisprudence.” He writes, “Alito had brought us to the very edge of judgment, but in the unfathomable code of conservative jurisprudence, that task would be handed over to elected officials in the political arena, particularly in the States, to draw the moral conclusion.”
But there is nothing unfathomable here. It’s precisely in the political arena that moral grounds of law should be made real, and then applied by the courts.
Alito has long defended the moral grounds of enacted legislation against the moral agnosticism of some of his colleagues. He would have enforced, in properly drawn legislation, the right of states to keep violent video games from children, to prevent impersonators from profiting from the sacrifices of our military heroes, and to deny immunity to those who wound the hearts of parents at the gravesides of their sons and daughters who died in battle.
In Dobbs also, Justice Alito affirms the moral basis of Mississippi’s legislation. He carefully summarized the legislature’s findings. Mississippi “found that at 5 or 6 weeks’ gestational age an ‘unborn human being’s heart begins beating’; at 8 weeks the ‘unborn human being begins to move about in the womb’; . . . at 11 weeks ‘an unborn human being’s diaphragm is developing,’ and he or she may ‘move about freely in the womb’; and at 12 weeks the ‘unborn human being’ has ‘taken on ‘the human form’ in all relevant respects.’”
Mississippi also found that “most abortions after 15 weeks employ ‘dilation and evacuation procedures which involve the use of surgical instruments to crush and tear the unborn child,’ and it concluded that the ‘intentional commitment of such acts for nontherapeutic or elective reasons is a barbaric practice, dangerous for the maternal patient, and demeaning to the medical profession.’”
Here was as explicit a moral basis for protecting the unborn child as one could find, but Justice Alito did not so say it on his own account, but vouchsafed it as the voice of a sovereign legislature.
Alito goes further. He assures legislatures that they are now free to exercise their moral judgment in the area of abortion, as is their right, without interference from judges who had reached for power outside of their judicial limit:
A law regulating abortion, like other health and welfare laws, is entitled to a “strong presumption of validity.” It must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests. These legitimate interests include respect for and preservation of prenatal life at all stages of development, the protection of maternal health and safety; the elimination of particularly gruesome or barbaric medical procedures; the preservation of the integrity of the medical profession; the mitigation of fetal pain; and the prevention of discrimination on the basis of race, sex, or disability.
The Born Alive Act is such a moral legislative response needed to protect the most vulnerable of lives.
Had Justice Alito proclaimed the humanity of the unborn child in his own voice rather than that of Mississippi’s legislature, it would almost certainly have unraveled the Dobbs opinion. For we know from Justice Brett Kavanaugh’s concurrence, that had Alito so discoursed, Kavanaugh would have left Dobbs, like Planned Parenthood v. Casey, which it overruled, a mere plurality opinion. And if Kavanaugh had then joined the ludicrous position of Chief Justice Roberts (which would have allowed states to restrict abortion only after the pregnant woman had sufficient time to arrive at a considered decision), Justice Elena Kagan would have skewered the hapless majority as incapable of deciding what theory on which to base their desired political outcome.
Sure, a defense of unborn life by Justice Alito would have been quoted and celebrated among pro-life opinions and seminars throughout the land, but legislatures would have been handed a tattered and fractured case, giving no legal and constitutional guidance for how they could confidently protect the unborn.
Instead, Justice Alito’s opinion stands as a rock, against which the dissent raises but a pallid objection. By modeling the moral limits of his vocation as a judge in Dobbs, Alito spends the bulk of his effort in undoing the judicial solipsism that Justice Blackmun had brought forward in Roe. Chief Justice John Marshall once warned that, “It is emphatically the province and duty of the judicial department to say what the law is,” and not, one might add, to make of the law what one would rather it be.
Alito decisively buried the unlawful sprite that Blackmun had let loose upon the land in Roe. Alito cured the Court of its constitutional malady and pointed to the “angels of our better nature,” as Lincoln would have had it, for legislatures to attend to.
None of this would have happened had not Justice Alito demonstrated the virtue of prudence that comes with a sense of the proper role that the judiciary plays in our republic.
Justice Samuel Alito knows his place, and the Court, the country, and the fate of the unborn are the better for it.
*Image: Madonna del Parto by Nardo di Cione, 1355-1360 [Bandini Museum, Fiesole, Italy]. Image of the Virgin in “parturition” were popular in the 14th century and were associated with the devotions of pregnant women, praying for the safe delivery of their infants.
You may also enjoy:
Robert Royal’s Who Are the Abortion Extremists?
Russell Shaw’s A New Encyclical on Contraception?