As the Roberts hearings vividly demonstrated, and as any confirmation hearing between now and January 2009 will similarly demonstrate, Roe v. Wade did not settle the abortion debate. Neither did Casey v. Planned Parenthood, the 1992 decision affirming Roe‘s “central finding,” in which three Supreme Court justices instructed the American people to stop fretting about the issue. The American people declining to be so instructed, the debate has not only continued but intensified, even as the federal judiciary’s contortions over Roe have continued to distort our law and warp three-plus decades of American politics.
At his hearings, and irrespective of whether John Roberts was being quizzed on a constitutional “right to privacy,” his views of judicial precedent, or his philosophy of judging, Roe was lurking just beneath the surface. Some senators looked for clues that a Roberts Court would reverse what Justice Byron White (a Kennedy Democrat) called in 1973 an exercise in “raw judicial power.” Others sought assurance that a Roberts Court would do no such thing. But whatever the euphemisms, it was Roe that was on everyone’s mind. Future nominees can expect more of the same.
The arguments and the surrogate-arguments and the pseudo-arguments about Roe have been recycled so many times that it seemed, these past several months, as if there were nothing new to say on the subject (or, in the case of Senator Joe Biden, try to say – in correct English). Shortly after Chief Justice Roberts was confirmed, though, a friend sent me the following from Signposts in a Strange Land, a collection of novelist Walker Percy’s occasional essays – which, if it doesn’t say anything precisely new, does put the old truths in a new light, thanks to Percy’s keen eye and mordant wit:
“There is a wonderful irony here. It is this: the onset of individual life is not a dogma of the Church but a fact of science. How much more convenient if we lived in the thirteenth century, when no one knew anything about microbiology and arguments about the onset of life were legitimate. Compared to a modern textbook of embryology, Thomas Aquinas sounds like an American Civil Liberties Union member. Nowadays it is not some misguided ecclesiastics who are trying to suppress an embarrassing scientific fact. It is the secular juridical-journalistic establishment.
“Please indulge the novelist if he thinks in novelistic terms. Picture the scene. A Galileo trial in reverse. The Supreme Court is cross-examining a high school biology teacher and admonishing him that of course it is only his personal opinion that the fertilized human ovum is an individual human life. He is enjoined not to teach his private beliefs at a public school. Like Galileo, he caves in, submits, but in turning away is heard to murmur, ‘But it’s still alive!’
“To pro-abortionists: according to opinion polls, it looks as if you may get your way. But you’re not going to have it both ways. You are going to be told what you are doing.”
The dance around Roe will continue, because the politics of the moment do not permit an honest confrontation with the facts: the biological facts, the constitutional facts, and the moral facts. Perhaps, when the dance finally ends, Roe’s implausibility as constitutional doctrine will bring it down. Perhaps a Robert Court, affirming the work of state legislatures on partial-birth abortion, clinic regulation, informed consent, and parental notification, will hollow-out the “abortion liberty” to the point where it comes to mean virtually nothing. Perhaps.
Whatever the ultimate judicial outcome, the task of pro-life American citizens will remain the same: to remind our fellow-citizens, our legislators, our governors, our president, and our courts of the facts of the matter. The scientific fact is that a unique human life exists from the moment of conception. The constitutional fact is that Roe was wrongly decided. The moral fact is that the willful taking of an innocent human life is always a grave evil. These are the facts.
Those who deny the facts must be told what they are doing.