At Long Last: Obama, Abortion, and the Courts

I admit to being more impressed than most commentators, including those with whom I usually agree, with the Wednesday night debate between Senators Obama and McCain. Political punditry is not my main shtick, and I have no idea whether the debate will contribute significantly to, as the pundits say, “turning this around.” But it seemed to me that McCain was sharp, on point, and playing offense, while Obama was for the first time on the edge of losing his famed cool and, at points, was floundering. McCain’s quip about the comparative merits of “eloquence” and paying attention to “words” seemed to hit home.

This was strikingly evident in the responses to the abortion question, which, for the first time, was directly posed in these debates. McCain’s effort was to depict Obama as an abortion extremist, and he succeeded. On partial-birth abortion and providing medical care for infants who survive abortion, Obama was reduced to muttering about a “health exception,” which, as he surely knows, means that the abortion license is, in fact, totally unlimited since the denial of a woman’s desire to terminate the life of the infant is construed as a violation of her “psychological health.”

As abortion extremists put it, the woman has a right to a dead baby. Obama apparently agrees, even saying that it is a constitutional right. In this he goes farther than almost any reputable constitutional scholar, claiming that the abortion license is covered by a right to “privacy” that is found not only in the “penumbra and emanations” of the Constitution but in the Constitution itself.

This, together with his adamant support for the government funding of abortion and for the Freedom of Choice Act, which would eliminate all state regulation of abortion—including waiting periods, parental notification, and other very modest measures—leaves no doubt that Senator Obama is on the farthest edge of abortion extremism. And it highlights what is arguably the most important single issue in this election: Who, as president, will get to nominate the next one, or two, or three, justices to the Supreme Court.

It is time to focus again, and this time relentlessly, on the question of the protection of innocent human life and the related and inseparable question of the role of the courts in our political order. Many who are sympathetic to his argument were nonetheless inclined to hope that Justice Antonin Scalia was exaggerating when, in his dissent from the 1992 decision Planned Parenthood v. Casey , in which he was joined by Rehnquist, Thomas, and White, he developed the analogy between that case and the infamous Dred Scott decision of 1857. What happened then is, in ways ominously parallel, happening now, Scalia said. Claiming to “resolve” a question in passionate dispute, the Court simply takes one side and demands that the nation follow. It did not work then, Scalia argued, and it will not work now.

What in the last several decades came to be called the “culture wars” runs very deep, and there is no end in sight. Nobody who cares about this constitutional order can be happy with our present circumstance. Politics is supposed to be about persuasion, deliberation, and decision-making through the process of representative democracy. It is not supposed to be warfare conducted by other means. And yet it is hard to suppress the impression that we are two nations in conflict. The alignments are not always clear-cut and there are overlappings on some issues, but the general picture is evident to all who have eyes to see.

We are two nations: one concentrated on rights and laws, the other on rights and wrongs; one radically individualistic and dedicated to the actualized self, the other communal and invoking the common good; one viewing law as the instrument of the will to power and license, the other affirming an objective moral order reflected in a Constitution to which we are obliged; one given to private satisfaction, the other to familial responsibility; one typically secular, the other typically religious; one elitist, the other populist. These strokes are admittedly broad, but the reality is all too evident in the increasingly ugly rancor that dominates and debases our public life. And, of course, for many Americans the conflicts in the culture wars run through their own hearts.

No other question cuts so close to the heart of the culture wars as the question of abortion. The abortion debate is about more than abortion. It is about the nature of human life and community. It is about whether rights are the product of human assertion or the gift of “Nature and Nature’s God.” It is about euthanasia, eugenic engineering, and the protection of the radically handicapped. But the abortion debate is most inescapably about abortion. In that debate, the Supreme Court has again and again, beginning with the Roe and Doe decisions of 1973, gambled its authority, and with it our constitutional order, by coming down on one side.

The result is the Court’s clear declaration of belligerency on one side of the culture wars, endorsing the radically individualistic concept of the self-constituted self. In the Casey decision, for instance, it waxed metaphysical in its assertion that the unlimited abortion license is necessary in order “to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” (Such philosophical speculation, bear in mind, is made by lawyers presumably interpreting the Constitution.) Not only does authentic personhood require freedom from the state, but also freedom from other potentially encumbering communities. From spouses, for example. The Court struck down the requirement that fathers be notified before mothers get an abortion. That, it is said, would be an “undue burden.”

Marriage, the Court declares, is only an “association” of individuals entered into for the fulfillment of personal needs. It is the same way of thinking that has led state courts to impose same-sex marriage. The notion of the unburdened, unencumbered, autonomous self drives the entirety of the Court’s abortion decisions. Casey continued and expanded the philosophical presuppositions of some earlier decisions, as brilliantly described by Gerard V. Bradley in “The Constitution and the Erotic Self” ( First Things , October 1991).

In Casey, liberty is not the “ordered liberty” of the Founders, nor is it liberty directed to the good and formed by communities of memory and obligation. According to the Court, liberty is, without remainder, the liberty of self-will, self-expression, and indeed self-constitution. For the Court, as for so many Americans, that radically reduced concept of liberty trumps every other consideration. Which is why, of course, the slogans of choice serve the pro-abortionists so well.

The Court has from time to time cautioned against the state establishment of a “civic religion.” The same justices seem to be blithely unaware, however, that in Casey and other rulings they are in fact asserting and endorsing a philosophy of at least quasi-religious status. Addressing the “concept of existence, of meaning, of the universe, and of the mystery of human life” crosses into those “ultimate concerns” by which religion is ordinarily defined. Against alternative understandings of the self in relation to community, normative truth, and even revelation, the Court recognizes no other reality than the isolated individual defining his or her reality.

Thus does the Court reinforce the Hobbesian idea that we are a society of strangers, perhaps of enemies, and it is the chief business of the state to prevent others from interfering with or obliging the Sovereign Self. The result is the atomistic, and potentially totalitarian, doctrine that society is composed of only two actors, the state and the solitary individual. It is a “civic” religion in the sense of being sponsored by the state, but it is hardly civic in character and consequence. Rather, it is the undoing of the civitas , of the “civil society” of myriad persons, associations, and communities of moral tradition interacting within the bond of civility and mutual respect. The construal of the self, of community, and of ultimate meaning that is espoused by the Court is incompatible with Christian and Jewish teaching and, we expect, with the common experience of most Americans. It is, in effect although not in name, another religion.

Regrettably, culture wars is the apt metaphor. And, beneath that, some may be excused for discerning something like a new form of religious warfare. The Court has undergone some major changes since the Casey decision, and great hopes are vested in the addition of justices who understand that the judiciary is not to displace the legislature in determining the great questions of how a democratic society is to deliberate and decide the right ordering of our life together.

But the balance on the Court could hardly be more fragile. It ought not to be the case that, as is cynically said in law schools, all you need to know about constitutional law is how to count to five. In the unhappy circumstance of our culture wars, the proper goal is not to get the Court on one side or the other. The goal is for the Court to observe the self-denying ordinance of the Constitution and let the people, acting through their elected representatives, decide.

Senator Obama could hardly be more explicit in his hostility to that goal. Which is why Wednesday’s debate, for the first time in this campaign, made luminously clear the single most important question at stake in this election.

Richard John Neuhaus is editor in chief of First Things .