Justice Byron White and Abortion

Burger Court (Justice Byron White bottom left corner); SOURCE: Library of Congress

Richard Doerflinger has been a friend of many years, and one of the enduring, great figures in the pro-life movement since his days in the pro-life office of the U.S. Conference of Catholic Bishops.  To his brilliance was added the most anchored, sound judgment, and I’ve been guided by that judgment over the years. And so I’m a bit taken aback that he thinks I was notably unfair, and possibly mistaken, in the account I recently offered of Justice Byron White in my previous column “Waiting for Dobbs.”

This is one of those rare occasions where my friend might have misread me, and it’s worth getting clear on this matter, because it touches questions of enduring interest in the pro-life movement.

I have long shared Richard Doerflinger’s admiration for Byron White, as athlete, man, and judge, and for his model of that figure long gone now from our landscape: the Pro-Life Democrat.

Byron White was one of the two dissenters in Roe v. Wade, and he never wavered in his conviction about the deep wrong of that decision.  In fact, no justice has spoken more forcefully about the corrupt reasons that often lead people to abortion:

At the heart of the controversy in these cases are those recurring pregnancies that pose no danger whatsoever to the life or health of the mother but are, nevertheless, unwanted for any one or more of a variety of reasons – convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc. The common claim before us is that for any one of such reasons, or for no reason at all, and without asserting or claiming any threat to life or health, any woman is entitled to an abortion at her request if she is able to find a medical advisor willing to undertake the procedure.

Richard Doerflinger charges me with suggesting that in 1986, in the Thornburgh case, White signaled a willingness to accept abortion. But Doerflinger seems to have slipped past that striking moment that was the key to my piece: the jolt of surprise felt by Justice Stevens as he read White’s opinion. Stevens thought that White was willing to concede some “fundamental” right to abortion, and yet he was appalled that White was not willing to see any critical difference between a fetus and a child or an adult human being.

The only thing White was willing to concede was expressed by Justice Rehnquist when he took it as a given that a state could not “prohibit an abortion. . .where the mother’s life is in jeopardy.”   White was making the same point when he wrote, in Roe, of “those who seek to serve only their convenience [in abortion] rather than to protect their life or health.”

What Stevens wasn’t able or willing to grasp was that White could accept just one instance in which it may be rightful and justified to have an abortion – and it was the instance accepted by virtually all people in the country, including pro-lifers.  In my column, I alluded to a more demanding moral position sounded by the Church: that one “may still raise a question about choosing one innocent victim over another.”   But White had never taken that advanced position, and my own guess is that neither would most Catholics or pro-lifers today.  My sense is that even most pro-lifers would settle into the consensus, that abortions may be firmly justified when the life of the mother is in danger.

I was bringing back White here to cast a light on a possible path that the conservative justices might take in the Dobbs case if they sought that “low door under the wall.”  They could avoid stirring a panic in some quarters by holding there is – and remains – something called a “right to abortion.”  But that right would be confined to that vanishingly small set of cases where the mother’s life is in danger.  In that event, virtually all of the restrictions enacted by legislatures over the years, to protect unborn children – and struck down by the courts – could now be restored.

Byron White had a play of mind that could easily surprise Justice Stevens, and yet Richard Doerflinger may give White too easy a pass.  We may too readily overlook the fact that White cast his argument in Roe in a way that has done an enduring disservice to the pro-life movement.

White had some searing things to say about the sleazy justifications that were offered for taking the life of a child in the womb. But that is not where he placed the prime focus in his argument.  And it is telling as to what path White closed off to himself.

The lawyers for Texas in Roe had composed the most elegant brief, drawing on the most updated findings in embryology, confirming anew that the unborn child has never been anything less than human from its first moments, and never merely a part of the mother. Neither White nor Rehnquist in dissent drew on any part of that rich material and placed it on the record.  And there it would have preserved, through the years, a clearer sense of what abortion is really about.

If White had drawn on that material, he could have set the ground for a simple, compelling conclusion:  that Texas was amply justified in extending the protections of the law over these small human beings.  But instead, White switched his focus:  the principal wrong now was the wrong done to people in the States, in depriving them of their right to deliberate and vote on this question of abortion.

White defined the chief wrong of the case as the flexing of “raw judicial” power – that the Court had no business in taking this case when abortion is mentioned nowhere in the Constitution.  With this move he and Rehnquist set the cast of a conservative jurisprudence that would endure now for forty-nine years, and take pride in persistently steering around questions of moral substance.

The article was originally published at 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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