Is Conservative Jurisprudence Renouncing Moral Reasoning?

My dear longtime friend, David Forte, wrote here last week to offer a decorous disagreement with my recent piece on the revival of Born-Infants’ Protection Act, to protect the child who survives an abortion.  His disagreement did not lie there, for he has been supporting me on that issue for years. (David was the prime architect of the “heartbeat bill” in Ohio, a measure that takes the pro-life cause into another dimension.) And I’m grateful that he sees the enduring relevance of that bill even now after the Court has overturned Roe v Wade.  That bill still offers the most modest – and disarming – first step in legislating on abortion, both in the States and the federal government. And it would help even more clearly now in establishing the grounds for the Congress to act to protect the unborn.

Professor Forte’s concern is that I was not charitable or understanding enough of the conservative majority on the Court, for that majority held back quite deliberately from pronouncing on the human standing of the child in the womb. Fifty years ago, the lawyers for Texas in Roe v. Wade drew on the findings of embryology to offer these key points to the Court:  that the offspring in the womb has never been anything but a human being from its first moments, and it has never been merely a part of the mother’s body.

Neither the dissenters in Roe nor the conservative majority in the Dobbs case, overruling Roe, thought it fit to speak those words, and it makes a profound difference.  By planting that premise in the law, the Court would have furnished the premise on which the Congress and the States could justify the law that overrides the freedom of a woman to destroy that small human life within her womb.  And for the conservative majority this was not a matter of inadvertence;  it was a move drawn from the playbook of what has become conservative jurisprudence in our time.

What Professor  Forte does not question was that the Court deliberately withheld that recognition of the child as a human being.  That point was made decisively with the concurrence by Justice Kavanaugh.  The Justice remarked there that many  “many pro-life advocates forcefully argue that a fetus is a human life” – forcefully argue, as though there has been no long-settled, empirical truth on this matter, found in all of the textbooks of embryology.  In other words, in this mode of conservative jurisprudence, the judges must affect not to know the plainest objective truth that bears on the practical judgment here – that judgment is to be reserved perhaps to others, in elective office.

Since there is no truth to be known on these matters, it is to be left to the “value judgments” of voters and legislators to gauge how much value they would give to recognizing the human standing of the child in the womb.  Professor Forte was right:  Kavanaugh’s concurrence establishes beyond doubt that the conservative majority did not recognize the human standing of the child, for if they had, they would have lost, in Kavanaugh, that fifth vote to overrule Roe v Wade. That was the price that Justice Alito had to pay for that fifth vote.  But that concurrence damaged the majority opinion in other, telling ways.

The most striking damage came with Alito’s attempt to defend against the claim that the Court’s decision would call into question many critical decisions that came along the way – most notably, the cases that established rights of access to contraception and interracial marriage.  Alito’s response took this form:  “rights regarding contraception and same-sex relationships are inherently different from the right to abortion because the latter. . .uniquely involves what Roe and Casey termed ‘potential life.’”

As Gerard Bradley has pointed out, this argument works only if the Court contends that abortion involves something far graver, the destruction of a human life. But that is not what Alito and his colleagues set down:  what is at stake is only what some people believe to be a “potential” human being, as distinct from a real one.

Professor Forte and I do not disagree for a moment on Justice Alito.  I regard the Justice as one of the premier jurists of my own lifetime, rivaled only by Antonin Scalia and by Robert Jackson (in the last century).  Alito performed the high service in showing, in Dobbs, that there is no principled ground for pronouncing the child in the womb as anything less than a human life. And yet, he deliberately held back from drawing the conclusion that springs from his argument.  He would leave it to people in the political arena to draw that implication and act upon it.

Professor Forte reflects this curious worldview in conservative jurisprudence, that these moral judgments belong to elected officials rather than judges.  But where did this come from – that judges who persistently pronounce on judgments of right and wrong are not offering the substance of moral judgments?   Justice Holmes famously hoped that “every word of moral significance could be banished from the law altogether,” leaving us with a law ever purer in its detachment from moral reasoning.

Is that what “conservative jurisprudence” is now settling into?  For many years it was routine for liberal judges, in the breakup of interracial marriages, to award the children to the white rather than the black parent on the assumption that the white parent could give them more advantages. That practice came to an end when the Supreme Court explained that this arrangement was in conflict with the fundamental law of Constitution, on the wrongness of racial discrimination.

It fell to the judges to pronounce now that moral judgment that would put  “family law” on a different footing. The lawyers for Texas in Roe v Wade cited judgments, even by judges in liberal New York State, affirming the human standing of the child in womb as the ground for sustaining the laws on abortion.   And now are we to be told that something in their theory of jurisprudence bars conservative judges, dealing with abortion, from the recognizing the most decisive objective truth that bears on their judgment?

This article was originally published in The Catholic Thing and may be found here.

Hadley Arkes is the Founder and Director of the James Wilson Institute as well as the Edward Ney Professor Emeritus of Jurisprudence at Amherst College.
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