In this newly published article in First Things, Hadley Arkes contemplates the prospect that the Supreme Court is on the verge of overturning Roe v. Wade and restoring the authority of states to protect the lives of unborn human beings. Such a ruling in Dobbs v. Jackson Women’s Health Organization would be a glorious victory for both the conservative legal movement and the pro-life cause—a victory that nearly everyone saw as a pipedream not very long ago. But Arkes is in no mood for celebration.
Arkes’s core complaint is that the constitutional case that conservative lawyers and judges typically make against Roe does not rest on moral arguments against abortion. His observation is correct, but I don’t see how it fairly gives rise to a complaint.
Constitutional originalism maintains that the duty of a Supreme Court justice is to discern and apply the original public meaning of the constitutional provision at issue, not to impose one’s own moral convictions. Constitutional provisions, of course, might embed moral understandings, and when they do, justices should interpret those provisions consistent with those understandings. But that’s very different from thinking it proper for justices to read their own moral convictions into the Constitution.
Part of the broader appeal of the case against Roe is precisely that it ought to be embraced even by those (like Robert Bork at the time of his nomination to the Supreme Court) who support permissive abortion laws. Conversely, if an overturning of Roe rested on pro-life premises, it would be much less likely to be accepted as a sound legal ruling.
Arkes sketches two competing passages that the Court might craft in returning abortion policy to the states. In his preferred alternative, the Court would (1) recite the “settled findings of embryology” that the “child in the womb has been human from its first moments [and is] a distinct life,” and (2) instruct “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.”
Arkes is correct on the “settled findings of embryology,” and I find it bizarre that majorities in Roe and Planned Parenthood v. Casey have denied or obscured basic biological realities. It’s not clear to me, though, that the Court in Dobbs would have any reason to invoke such findings, instead of simply deferring to the Mississippi legislature’s findings (under rational-basis review).
Far more dubious is the instruction that Arkes proposes that the Court give the states. That instruction rests on the proposition (which he sketches some paragraphs later) that permissive abortion laws would violate the Equal Protection rights of the unborn. As Arkes knows, John Finnis and others have undertaken to make that argument on conventional originalist grounds—grounds that do not depend on the justices’ own moral convictions on abortion—but that position got zero traction at oral argument, and no serious Court-watcher thinks it has a prayer of prevailing. Arkes makes a far more ambitious argument based on the supposed “underlying moral logic of the law,” as he contends that the “dictum ‘equal protection of the law’ is built . . . into any rule of law, even if not made explicit.” If I’m understanding him correctly, his argument would mean that slavery was impermissible under the original Constitution, long before the Civil War and the post–Civil War Amendments.
In the second, disfavored alternative that Arkes presents, the Court would (1) profess itself agnostic on “when human life begins, or what is to be regarded as a human life in any stage,” and (2) invite the people “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.”
I think that Arkes is right to observe in his essay that too many conservative lawyers and judges seem to lapse into moral relativism when discussing abortion. (As I’ve pointed out before, I think that he’s wrong in his specific contention that I have lapsed, but I won’t belabor the point here.) I agree with Arkes that it would be cringeworthy and objectionable if the majority in Dobbs were to use his second alternative.
But there is a vast middle ground between Arkes’s two alternatives, a middle ground in which the justices recognize that the role of the federal judiciary is distinct from that of the state legislatures and that it is broadly up to the legislatures to resolve the competing claims to moral truth that the opposing sides on abortion present. And, no, it is not moral relativism to recognize the reality that these claims to moral truth conflict, nor to deny that the Supreme Court has a general warrant to decide which should prevail.
I have a larger concern about Arkes’s piece. This is a time in which the pro-life movement should be preparing to celebrate an overturning of Roe with hallelujahs and to energize and invigorate pro-lifers for the legislative battles that lie ahead. It is also a time in which the conservative justices are under intense attack precisely because it is expected that they will overturn Roe. There are some folks out there who, at this late stage, seem more interested in carping and whining that the conservative justices won’t deliver an even bigger victory than overturning Roe. Given Arkes’s well-deserved stature in the pro-life community, his piece—inadvertently, I am sure—will only serve to egg on the malcontents. I don’t see how anything good will come from that.