On Overruling Roe

It is very much in the air now, with a deep hope on one side and a grim resignation on the other, that the holding in Roe v. Wade will not survive this year. Conservatives seem sure that something decisive is about to happen because they have helped to put on the Court the judges who can make it happen. They worry that some of their six judges may lose their nerve or settle for a decision that keeps Roe v. Wade on the books, as a fragile façade, while its substance is removed step by step. Liberals are terrified that the abortion license put in place by Roe will be swept away.

But one way or another, whether Roe is overturned, scaled back dramatically, or set on a path toward reversal, people will be invited to ­deliberate again about just how much protection they are willing to accord a child in the womb. Put another way, they will be invited to judge just who will be protected by their laws against homicide. For this reason, it matters profoundly how the issue of abortion is framed by the Court and sent back for the people in the various states to ponder anew.

As is so often the case, ordinary language offers the key. Consider the way in which those of us who oppose abortion talk about it among ourselves, and compare that to the way some of us talk about the issue as a matter of law, refracted through the prism of conservative jurisprudence. Among ourselves, we talk about the taking of a small, innocent life. We wonder aloud why so many of our fellow citizens can’t recognize what is before us—as when the fetal heartbeat can be discerned, or the point at which the child in the womb begins swallowing or develops fingerprints. We know that none of these things mark the onset of human life; they are simply stages of a life already in being, powering—and integrating—its own growth. We still marvel that the being in the womb has been nothing other than human from its very first moments. As the late Paul Ramsey ­observed, there is nothing we have genetically now that we didn’t have when we were no larger than the period at the end of this sentence. Seen from this perspective, the problem of Roe v. Wade is not a matter of violating lines of jurisdiction, but one of those irreducibly moral questions at the base of our laws. Roe withdrew the protections of law from a class of small, vulnerable human beings, and the inescapable question is why that withholding of protection was justified.

But when we turn to conservative lawyers or judges, who speak the language of jurists, the victim is curiously displaced from the scene. We hear that Roe was an outrage because seven justices exceeded the reach of their authority. They legislated from the bench and deprived people in the states of their chance to make up their own minds as to whether the child in the womb is a human being duly protected in law. It was an exercise of raw ­judicial power, we are told, licensed by nothing in the Constitution.

With this move there is a notable shift in focus. The killing of the child—the gravest matter that brought forth the law—is displaced as the main question of harm and justice. The harm ­done to the fetus is replaced with the harm visited on the people and state legislatures, as they are now deprived of their right to determine how much weight might be given to the life of a child when it is set against the interests and convenience of a pregnant woman.

What is displaced is not only the human standing of the child from its first moments. The mode of reasoning about the substance of the matter is altered as well. When we move to the plane of ­moral argument, we are not leaving the domain of legal concern, but stepping back to the underlying moral logic of the law. To discuss the rights and wrongs of abortion, we move away from statements of mere personal taste or private belief; we begin speaking instead of the things that are more generally or universally right or wrong, just or ­unjust, for others as well as ourselves. And yet, even conservative lawyers and judges find themselves avoiding this mode of speaking when it comes to abortion. They suggest that our views are a merely “personal” matter, subject to slippery subjective preferences. Edwin Meese fell into this trap recently when he remarked, in a piece in the Washington Post, that “reversing Roe and Casey will not ban abortion. States and the people will be free . . . to decide such matters of personal morality.” That phrase brings back the old line: “I am ­personally opposed to abortion, but I would not forbid the choice to anyone else.”

Even my friend Edward Whelan, one of the most reliable and savvy commentators on the law, has absorbed this way of writing. He has insisted: “The duty of Supreme Court justices is not to indulge their own moral preferences in interpreting the Constitution.” And in a critique of my own views, he has charged me with “thinking it proper for justices to impose their own moral readings on the Constitution.” In other words, moral judgments would be expressions of mere personal feelings, with no evident claim to truth. If there were such a truth, the judges would not be relying on “their own moral ­preferences” or “their own moral readings.”

And so, as one of my favorite justices had it, the question will be returned to the voters in the separate states to make their own “value judgments” on the matter:

The whole argument of abortion opponents is that what the Court calls the fetus and what others call the unborn child is a human life. . . . There is of course no way to determine that as a legal matter; it is in fact a value judgment. Some societies have considered newborn children not yet human, or the incompetent elderly no longer so.

“Value judgment” is a term that came into play with Nietzsche and Max Weber, as people began to lose confidence in speaking of “moral truths.” They would speak rather of things that were important insofar as people “valued” them. This mode of thought has long been settled in the social sciences, and it has made its way even to conservative lawyers and jurists through the language of legal positivism. And so, whether the child in the womb will be regarded as a human being will depend entirely on how most people in the states “value” the unborn child as a human being—and how strenuously they think the law should cast protections over that child.

Lincoln famously said of the gravest matter of his day that the question was whether the black man “is not or is a man.” If he is a man, then he, too must have the right to be governed only with his consent. And he would have the same claim to have his freedom and safety protected by the law. The late Harry Jaffa remarked tellingly that the standing of the black man as a man could not be a “value judgment.” As Roger Wertheimer has reminded us, even some rather educated and decent men in the middle of the nineteenth century were inclined to regard the black slave as “some sort of demi-person,” not yet a full or “real” human being as measured by the scale of evolution. Of course we would regard it as unthinkable now to invite people, through “the democratic process,” to offer their “value judgments” regarding the question of when black people become “fully human.” It makes no more sense to invite people to offer their most earnest “value judgments” regarding when life in the womb becomes “fully human.”

Nothing, then, in this question of the child in the womb should be so baffling to conservative lawyers that they must deliver it to the domain of “value judgments.” The matter was set forth clearly enough by the lawyers who wrote the brief in Roe v. Wade and sought to defend the laws in Texas. That brief was a work of fine craftsmanship (and one I have written about, in appreciation, in these ­pages: “The Moral Turn,” May 2017). The brief drew on the most up-to-date findings of embryology in order to make its empirical, scientific claim for the human standing of the child in the womb. It contained items of this kind:

—At the end of the first month the child is about 1/4 of an inch in length. At 30 days the primary brain is present and the eyes, ears, and nasal organs have started to form. Although the heart is still ­incomplete, it is beating regularly and pumping blood cells through a closed vascular system. [Emphasis added] The child and mother do not exchange blood, the child having from a very early point in its development its own and complete vascular system. Earliest reflexes begin as early as the 42nd day. The male penis begins to form. The child is almost 1/2 inch long and cartilage has begun to develop.

—Even at 5 1/2 weeks the fetal heartbeat is essentially similar to that of an adult in general configuration. The energy output is about 20% that of the adult, but the fetal heart is functionally complete and normal by 7 weeks.

There is no “value judgment” in these observations of fact. They are not claims of “belief,” religious or profane.

The authors of the brief drew upon a case in New York, decided twenty years earlier, but already containing remarks on how much we had come to know about life in the womb. As the judge had written in Kelly v. Gregory:

We ought to be safe in this respect in saying that legal separability should begin where there is biological separability. We know something more of the actual process of conception and fetal development now than when some of the common law cases were decided; and what we know makes it possible to demonstrate clearly that separability begins at conception.

The mother’s biological contribution from conception on is nourishment and protection; but the fetus has become a separate organism and remains so throughout its life.

It all came down to this: If a woman is pregnant, something is alive and growing. If it is alive and not a tumor, it is a human being from its first moments; it has never been a part of the mother’s body. From that point forward, reason alone should have reminded us that the laws of homicide have ever been indifferent to the size and age of the victim. The killing of an older, heavier man would not be graver than the killing of a small, weaker child.

That was all that was needed to avoid the fateful decision in Roe. A straightforward mixture of empirical evidence woven with principled reasoning is quite enough to address the most natural and rudimentary question that could ever be asked about any law: Is this a measure that we are justified in imposing on people, as binding on them, even when it removes or restricts their freedom? In this case—the case of a purported “right” to abortion—it is the freedom to kill, to dispose of, a small, innocent human being.

As the Supreme Court weighs the law in Mississippi, which bars abortions after fifteen weeks of pregnancy, this justification for the law—so simple, so irreducibly moral—­represents the clearest and best thing to say in sustaining the statute. To say that a law must be defended in order to protect human life should cause no tremors in the circles of conservative jurisprudence. It offers nothing that does not flow from the very rationale and character of law, nothing that would be strange or ill-fitting in a courtroom or a panel of judges. What could be more central than the question of whether a law casting protections on human life is finally justified or­ ­unjustified?

And yet to speak in this way would make a profound difference to the way in which this matter would be returned to the states. Imagine if the justices to were to uphold the Mississippi law and say something like the following:

The case has been amply made by now, in the settled findings of embryology, that the child in the womb has been human from its first moments, a distinct life, not merely a part of the mother’s body. The legislature in Mississippi is amply justified in extending the protections of the law over this small human being, residing for a long moment in her mother’s womb. It falls to the states to weigh the question of when it would be justified to take this human life, with the same standards of judgment that enter into gauging the justification for the taking of any other human life. And so this matter should be returned to the domain in which citizens and their legislatures are free to deliberate again on the question of how the taking of life here will be measured in their standing laws on homicide.

That reasoning is straightforward and simple. It is also strikingly different from sending the matter back to the states with these words of guidance:

The question of when human life begins, or what is to be regarded as a human life in any stage, has been a controversial matter, heatedly debated, eluding consensus, and inflaming our politics. The judges who form this Court have no clearer answer to those questions than the answers that may be supplied by the first nine names in any telephone directory. And as the locale shifts to cities and states, so too will the temper and “values” borne by those first nine names. We therefore send this matter back for people in the states to deliberate upon again—to make their own “value judgments” on when human life begins, and on when that developing life commands the obligation of the law to protect it.

Surely, these divergent approaches mark the most notable difference. The first approach invites the American people to deliberate seriously again on the question of what justifies the taking of an undeniably human life. The latter steers around any serious deliberation, for it is framed with the premise that there is no truth by which to gauge our judgments. As C. S. Lewis once alerted us, it makes no sense to enter any serious conversation, or any moral argument, on those terms. Why, then, should some of our friends want us to talk in this way, and take offense when we don’t? It would seem the most natural thing to ask for that ­serious conversation, not the sounding of “value ­judgments.” And for the judges to speak in this way on the unassailable facts about that human life in the womb, or the grounds for taking that life, would require no striking departure from the way our better jurists have always spoken. To take a line from Lincoln, “the change it contemplates would come gently as the dews of heaven, not rending or wrecking anything.”

The failure to take this approach would open us to grave hazards, even if Roe v. Wade were overturned in a stroke. As Gerard Bradley has observed, our concern about abortion has been focused on the destruction of human life in vast numbers, counted now in the millions in our own country. What has brought tens of thousands of people into the streets of Washington in January of each year for the March for Life, often in the worst ­weather? I’ve never seen placards blazoning outrage over judges’ exceeding their jurisdiction. Nobody chants that the matter must be sent “back to the states.” Put plainly, the overriding concern has not been to bring judges to heel, but to stop the poisoning and dismembering of babies in wombs. As Bradley has said, that concern surely cannot be assuaged by the report that abortions may be curtailed in Mississippi and Texas, while some version of constitutional piety requires us to look on as abortions are performed on a massive scale in California and New York.

In sober truth, we may continue to pay a price for a “constitutionalism” that persistently steers around the questions of moral substance at the heart of these cases. With this constitutional scheme in place, we have no surety that abortion will be discouraged or forbidden even in the states that would restore the laws limiting or banning abortion. For judges have been tutored now to a new orthodoxy on abortion, and it is well within their kits to reason in this way: Any system of law must contain the principle of treating like cases in like fashion, under the same rules. The dictum “equal protection of the law” is built then into any rule of law, even if not made explicit. Some judges at the state level will construe the “equal protection of the laws” as a clear challenge to laws that place limits on abortion. For as the line will surely go: It is the most patent discrimination on the basis of sex to forbid this surgery, performed solely on women, and in certain cases desperately wanted by women.

We have seen the signs already that judges in the states will find this “right to abortion” to be implicit in their state constitutions. But the seed for a resistance may be planted if the Court sends the matter back to the states with this simple point recalled and put in place: The child in the womb has been nothing less than a human life from its first moments, and it has never been merely a part of its mother. To recognize that child as a human life would establish the crucial predicate for new constitutional protections for human lives, sojourning for a while in wombs. That ought to be enough to get the motors running with the Fourteenth Amendment, with its protections for “life” as well as liberty and property.

The Fourteenth Amendment provides ample powers for the Congress—and the federal courts—to become engaged when a state withdraws the protections of law from a whole class of human beings. As professors of law know, we have already had this experience, in all its complication and lessons, with the protection of black lives in the Southern states. Even with the Fourteenth Amendment, we found Congress and the courts caught in the coils of federalism, often held back from dealing with the crisis over the protection of blacks in a hostile setting. Yet, case by case, the courts brought to judgment—and to sharper public view—instances of the law’s withholding its protections from a whole class of human beings on the basis of their race. By the mid-sixties, with the killing of three young civil rights workers in Mississippi—Michael Schwerner, James Chaney, Andrew Goodman—the shift had taken place. The federal government was readily engaged then when local sheriffs, acting under color of law, managed to kill their prisoners, or when those sheriffs colluded with local thugs while the law held back its hand.

And yet, even against the background of this history, some of our leading conservative jurists have joined Harry Blackmun in doubting that the Fourteenth Amendment was ever meant to apply to humans who were “pre-natal,” as distinct from “walking-around persons.” What makes this perplexity all the more curious is that Justice Blackmun himself, in Roe v. Wade, conceded the bearing of the Fourteenth Amendment on abortion:

The appellee and certain amici argue that the fetus is a “person” within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well known facts of fetal development. If this suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the Amendment.

But Roe itself could have offered that holding on the human personhood of the fetus if the justices had simply been willing to set on the record the facts arrayed in that impressive brief, as Blackmun said, “outlin[ing] at length and in detail the well-known facts of fetal development.” It is one of the stories of our time how some of our leading conservative jurists have talked themselves into a quandary on whether either Congress or the courts have the authority to act when the protections of the law are withdrawn, within the states, from a distinct class of small human beings—as they had been withdrawn in the past from a distinct class of dark-skinned human beings. To take a line from Henry James, I’m afraid that some of our friends have made themselves “victims of a perplexity from which a single spark of direct perception would have saved [them].” That “direct perception” is a matter of looking through the fog of theories to the unchallengeable facts: Pregnant women are carrying human babies, living persons, never merely part of their own bodies.

Let us return for a moment to that uncomfortable report, offered by Roger Wertheimer, that even some decent, educated Americans in the middle of the nineteenth century thought that black people were low on the scale of evolution, not yet fully human, and therefore not deserving yet of full protection under the law. Those views were likely still to be current at the time the Civil War Amendments were adopted. Let us suppose, then, that the argument was made at the time that these new Amendments, with new rights of citizenship and voting for black people, could be meant sensibly to apply only to those black people who had now become more fully human. For after all, have we not heard in our own time that not everything conceived by human beings is human in all its stages? And with that sense of things, even among the “educated,” we could imagine a jurist at the time saying, as one justice in our own time has said, that

the point at which life becomes “worthless,” and the point at which the means necessary to preserve it become “extraordinary” or “inappropriate,” are neither set forth in the Constitution nor known to the nine Justices of this Court any better than they are known to nine people picked at random from the [local] telephone directory.

The matter could be left then to citizens and their representatives in the states to reach their own “value judgments” on this question. Let us suppose that one state, trying its hand at the problem, came up with a “color wheel,” with the premise that black people become more fully human as they become lighter in skin-tone. And let’s say that the test was offered with the notion that black people become more fully human as they move from a 12 to a 13 on a scale of lightness—or in ­another variant, from a second to a third “trimester” in shading. We would not suffer a moment of doubt on how judges in our own day would deal with claims of this kind: They would acknowledge the existence of different degrees of white and black skin tone, but they would demand to know why any difference in shading could ­justify the removal of a whole class of human beings from the circle of “rights-bearing ­beings” and the full protections of the law.

But if that is the case, why should anyone think it plausible that our judges should stand back, with no thoughts to stir them, if a legislature in New York or Illinois stipulated that the onset of human standing depends on such markers as: a normal EEG reading of electrical activity in the fetal brain, or the emergence of the limbs, or the hearing of a heartbeat with a simple stethoscope. These are mere indications of the growth of a human life already in existence, none of them marking the beginning of human life. It should be plain that judges are amply equipped now to dispose handily of such claims. On the matter of civil rights, our judges were “­republican schoolmasters,” tutoring the public and our legislators on the principles that should drive their legislation. We know that this path of ­instruction has worked before, with ­powerful, ­radiating effects. There is no reason why it cannot be done again on the matter of abortion. We need no novel theories of law, no audacious breaking away from our legal tradition, and no summoning of rare genius. The tools are in place to navigate us out of this culture of death if the judges will use them.

Hadley Arkes is the Ney Professor of Jurisprudence emeritus at Amherst College, and the founder and director of the James Wilson Institute.