Thirty seven years ago today (January 22) the Supreme Court issued its infamous decision, asserting that women have a Constitutional right to terminate the life of their unborn children for virtually any reason.
Two years ago on my blog I interview Robert P. George about the decision and its aftermath, and I thought it might be helpful to republish it here.
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Robert P. George is a member of the President’s Council on Bioethics, is McCormick Professor of Jurisprudence at Princeton University, and is the director of the James Madison Program in American Ideals and Institutions at Princeton. His most recent book, coauthored with Christopher Tollefsen, is entitled Embryo: A Defense of Human Life—a book I highly recommend. . . .
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I know that you greatly object to the conclusions of Roe v. Wade from a moral standpoint, but I wonder if you could summarize some of the legal problems with it?
The legal problem with Roe v. Wade is simple: The Supreme Court’s decision to invalidate state laws prohibiting or restricting abortion lacks any basis in the text, logic, structure, or original understanding of the Constitution of the United States. The late John Hart Ely, a famous legal scholar who himself supported legal abortion as a matter of public policy, said that Roe v. Wade “is not constitutional law and gives almost no sense of an obligation to try to be.” The justices who manufactured a right to abortion in Roe violated and dishonored the very Constitution they purported to interpret by substituting their own moral and political judgments for those of the elected representatives of the people. Their ruling was a gross usurpation by the judiciary of the authority vested by the Constitution in the people themselves, acting through the constitutionally prescribed institutions of republican democracy. As dissenting Justice Byron White put it, Roe was nothing more than an exercise of “raw judicial power.” It was not merely an incorrect decision, but an anti-constitutional one.
Is it true that many abortion-choice defenders also think that Roe v. Wade was a poorly reasoned legal opinion?
I would venture to say that most constitutional scholars who support legal abortion basically (if all-too-quietly) agree with Professor Ely. Roe is an embarrassingly poorly reasoned opinion. Of course, some pro-abortion scholars believe that the result in Roe could be justified by a different form of constitutional argument, and there is something of an industry among them in “re-writing Roe.” Justice Harry Blackmun, in his opinion for the Court in Roe itself, claimed that restrictions on abortion for the sake of protecting fetal life violate the provision of the 14th Amendment forbidding any state from depriving any person of “life, liberty, or property without due process of law.” Frankly, that’s ridiculous, and almost all legal scholars know that (even if some won’t say it publicly). The most notable effort to place the holding in Roe on a more plausible constitutional footing involves the claim that abortion restrictions deprive women of “the equal protection of the laws” (another 14th Amendment guarantee). There are various reasons why that approach fails, too, but many of Roe’s supporters at least find it less embarrassing.
What was the upshot of this decision with respect to abortion? Is it true that it functionally abolished any meaningful restrictions on abortion at any time of a pregnancy?
When Roe is taken together with its companion case of Doe v. Bolton, which was handed down on the same day and incorporated by reference into Roe, the result is indeed the severe restriction of the authority of any state to protect the life of the child in the womb at any point in gestation—even during the third trimester. Some people fail to understand this because they don’t know about, or haven’t paid close attention to, the Doe ruling. Roe prohibits restrictions on abortion for the sake of protecting fetal life in the first two trimesters, but says that the states may (not must, mind you, but may) protect fetal life in the third trimester. Doe, however, undercuts this permission. It says that states may not restrict abortion even in the third trimester—all the way up to birth—if an abortion is judged to be necessary to preserve maternal “health.” Then it defines “health” expansively to include mental or psychological health, as well as physical health, and to note that “emotional” and “familial” factors must be taken into account in assessing whether an abortion is required for the sake of “health.”
Do you believe that Roe v. Wade will be overturned someday?
Yes, I do. Just as Dred Scott v. Sanford, the infamous decision protecting slavery, eventually fell, Roe will someday fall. It will not fall due to a civil war, as Dred Scott did, but rather under the pressure of scientific facts and the conscience of the American people. The development of sonography is already making a huge difference in people’s attitudes toward abortion. Moms and dads, and brothers and sisters, and grandmothers and grandfathers now observe the baby before he or she is born. We view the complex and beautiful life of the child in the womb, as if he or she were on television. Parents typically even name their baby while he or she is still in utero. It is no longer possible to believe that abortion is merely “removing some tissue.” It is plain that abortion is the killing of a human being. The hard work and unceasing prayers of pro-life Americans have already saved many lives. Ultimately, they will result in the overturning of Roe and a regime of law far more protective of human life.
How do you respond to those who say that overturning this decision will have little effect?
I direct them to the brilliant analysis of my former student, Ramesh Ponnuru, in his great book, The Party of Death. It is true that overturning Roe will be only a first step toward the goal of making our society one in which every child is “welcomed in life and protected by law.” But it is a necessary first step. Important work will remain to be done in the cultural as well as the political domain, but I have faith that pro-life Americans are up to the task. Ours is a nation, as Lincoln said, “conceived in liberty and dedicated to the proposition that all men are created equal.” Our country has never perfectly lived up to its high ideals, but our ideals are the right ideals and they are worth struggling to live up to. Our history shows that we are a people who can live with grave injustices for only so long. Just as we abolished slavery and eventually overthrew segregation and Jim Crow in order to honor the dignity and rights of our brothers and sisters of African descent, we will eventually restore to our tiniest and most vulnerable brothers and sisters the protection they, as members of the human family, deserve.
Some are reasoning that a president has little effect on whether or not abortion is legal, and that electing an abortion-choice candidate would not significantly damage the pro-life cause. How do you respond?
Presidents have a profound role in shaping policy pertaining to abortion and other pro-life issues, such as human embryo-destructive research and cloning. Anyone who says otherwise simply hasn’t thought about the question. Presidents nominate federal judges, including Supreme Court justices. Presidents can propose and fight for pro-life legislation at the federal level. Presidents play an important role in determining whether taxpayer dollars are used to fund abortions overseas and embryo-destructive research here in the United States. Anyone who is serious about the pro-life cause will care a great deal about who is elected president.
This blog has a wide variety of readers—professors, students, pastors, stay-at-home moms, business men, etc. What are some practical things we can do and support to help to create a culture of life in America and to work toward the eventual overturning of Roe v. Wade?
First and foremost: Pray. Pray for the unborn victims of abortion and for women who are, so often and in so many ways, truly abortion’s “secondary victims.” Do not judge them, but rather pray for them and love them. Pray for those who have dedicated themselves to working in politics and the culture for the pro-life cause. Pray for our leaders at the state and federal levels—including judges—whose actions will literally determine who lives and dies. Pray for those whose hearts have been hardened against the unborn, and who defend and even promote abortion. And pray for those who perform abortions. God has already turned the hearts of some such people. Bernard Nathanson, a prominent abortionist and one of the founders of the pro-abortion movement in the United States, was converted to the pro-life cause by the loving witness and prayers of pro-life people. Who knows how many other abortionists and defenders of abortion will follow his path? Let’s give up on no one. Let us treat everyone, even our opponents in this profound moral struggle, with respect, civility, and ungrudging love. Loving witness is something all of us can give. And lovingly witnessing in our churches and communities to the sanctity of human life is something all of us are called to do.
And there is more that we can do. Pro-lifers do a wonderful job in pregnancy centers around the country in reaching out in love and compassion to pregnant women in need. These pro-life heroes need our financial and moral support. Moreover, they can always use another pair of hands, so I hope that many people will join those volunteering in these efforts. They save lives, and they bring God’s healing and practical assistance to our sisters in distress. Politically, we need to use our clout as citizens of a democratic republic to influence policy in a pro-life direction. The fight against abortion and embryo-destructive research should be put at the top of the priority list in evaluating candidates for state and federal offices. We should support pro-life candidates with our money as well as our votes. Moreover, I hope that some who read these words will take the very practical step of running for office themselves. We need more people who are dedicated to the defense of human life to step forward as candidates for Congress, the state legislatures, and other public offices.