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Abortion and the modern Supreme Court

Observer Viewpoint | Thursday, September 15, 2005

Why the fuss over Supreme Court nominations? The Court merely interprets the law. Right? It wields the power neither of the purse nor of the sword. Until the mid-20th century, nominations to the Court were rarely as controversial as they are today.

The nominations are so important today because the judiciary is no longer, as Alexander Hamilton put it, “the least dangerous” branch of government (Federalist, No. 78). Rulings by the unelected Supreme Court, with the acquiescence of Congress and the Executive, bear major responsibility for the terminal decline of the Constitution from its character as the charter of a limited government with only enumerated powers apportioned among the executive, legislative and judicial branches.

The Court interprets the Fourteenth Amendment so as to bind state and local governments by the Court’s mandates on personal rights, including rights of the Court’s own invention such as abortion. It has made the “equal protection of the laws” a license for judicial micromanagement of local decisions. The Court imposes on all governments an impossible neutrality between theism and non-theism which establishes an agnostic secularism. The Court’s edicts on the commerce clause and on federal subsidies give Congress almost a blank check for regulation, despite some recent limitations. And so on. The replacement of even one Justice, therefore, can have consequences that would have astonished the framers of the Constitution.

The current debates focus on abortion. But the issue is oversold because of the assumption that the appointment of pro-life Justices will be the magic bullet to end the dominance of the abortion


A Supreme Court “overruling” of Roe v. Wade would have limited impact on abortion. The essential holding of Roe is that, whether or not he is a human being, the unborn child is not a “person” until birth and therefore has no constitutional right to life. He may be executed at any time in the pregnancy at the practical discretion of his mother. Such depersonalization is the principle that underlay the Dred Scott Case in which the Supreme Court said in 1857 that slaves were property rather than persons, and that underlay the Nazi depersonalization and extermination of Jews and others.

To really “overrule” Roe would be to hold that every human being, from fertilization, is a “person” entitled to the constitutional right to life. That would forbid governments to withhold the protection of homicide laws from the youngest persons, i.e., those in the womb, as if a state were to forbid homicide unless the victim were under eight years of age.

Both political sides define the “overruling” of Roe as returning the issue to the states, allowing them to restrict or permit abortion. The Supreme Court unanimously endorses that approach. As Justice Scalia put it in his dissent, in which Rehnquist and Thomas joined, in the 1992 Casey decision: “The states may, if they wish, permit abortion-on-demand, but the Constitution does not require them to do so.” That would confirm the nonpersonhood holding of Roe. If your life is subject to extinction whenever a state legislature so decides, then you are a nonperson in the eyes of “the supreme law of the land,” the United States Constitution.

This abandonment of principle contributes to the culture of death by fostering the impression that abortion and other “life” issues are negotiable, like a highway appropriation. In a just and free society, the only legitimate issue is whether innocent human beings can be legally executed. The incremental approach frames the issue in terms, not of whether, but of which innocent human beings may be legally executed. A measure of the bankruptcy of the pro-life movement is the focus on partial-birth abortion, which tactic frames the issue not in terms of whether, and not even in terms of which innocents may be legally executed, but in terms of how the killing is to be done.

Of most importance, technology is making abortion a private matter beyond the reach of the law. The law treats various pills and devices as contraceptives although they cause abortions by preventing implantation of the embryo in the womb. The law cannot effectively prohibit such abortions.

So the appointment of a Supreme Court Justice is not the magic bullet that can lift the scourge of abortion from our contraceptive, and therefore anti-life, society. It is important to put good judges on the Supreme Court. But the solution is not in politics or law but primarily in prayer, education and the reconversion of the American people to the conviction that the right to life transcends the power of the state because it is the gift of God.

Professor Emeritus Rice is on the Law School Faculty. His column appears every other Thursday. He can be contacted at [email protected]

The views expressed in this column are those of the author and not necessarily those of The Observer.