Richard Doerflinger
A More Human Society
July 21, 2022 // A more human society

Roe and the legacy of abortion

Richard Doerflinger
A More Human Society

On Friday, June 24, the Supreme Court overturned Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) and, by implication, a long line of abortion decisions relying on them.

This ends a regime of almost half a century, during which the court invalidated even modest efforts to regulate or restrain abortion – laws on informed consent, parental rights in the case of an unemancipated minor, health protections for women and so on.

Widely supported laws against late-term abortions, and even against mistreating a child born alive during an attempted abortion, were attacked. Justice Sandra Day O’Connor, no pro-life activist, complained in 1986 that “no legal rule or doctrine is safe from ad hoc nullification by this court” when the case involves abortion.

The right to abortion, found nowhere in the Constitution or in the country’s legal history and traditions before Roe, was defended more zealously than some rights that are explicit in our founding document. Partly because it was fabricated from the policy preferences of the judges themselves, it had no internal controls against unprincipled expansion.

Five justices have said this must stop. They do not respond, however, by reading a pro-life policy into the Constitution. In his concurring opinion, Justice Brett Kavanaugh says forthrightly that “the Constitution is neutral on the issue of abortion and allows the people and their elected representatives to address the issue through the democratic process.” In the short run, that will mean a patchwork of different state laws.

The court’s action nonetheless evoked outrage and sometimes vandalism among those who hail the court’s past abortion decisions as landmarks in defense of women’s rights. They will not want to hear, at least not yet, that a vulnerable woman’s “right” to help take the life of her defenseless child is not something to celebrate, that the dignity and rights of women can and must rely on a far more positive foundation.

The challenge for pro-life Americans, especially Catholics, will be not only to protect the unborn child, but to show women frightened by the court’s decision that we will stand up for their interests and their equal status in society. Feminists for Life, a group that takes this challenge to heart, may have said it best: “Abortion is a reflection that we have not met the needs of women.”

In any case, women make up a little more than half the population, and a somewhat higher percentage of the voting public. Women committed to “abortion rights” now face the unsettling prospect of debating women who disagree with them. But that happens in a democracy, and the debate will be infinitely more productive if conducted with civility and mutual respect.

One group ignoring that advice calls itself “Ruth Sent Us,” after the late Supreme Court Justice Ruth Bader Ginsburg. Justice Ginsburg was a prominent advocate for “abortion rights.” The group claims to honor her by, for example, targeting Justice Amy Coney Barrett’s church and her school-age children for angry protests.

But recently I came across “Scalia Speaks,” a collection of speeches by the late Justice Antonin Scalia, who was known for his biting criticisms of Roe and Casey. The book’s foreword is by Scalia’s longtime friend, Justice Ginsburg. She concludes:

“If our friendship encourages others to appreciate that some very good people have ideas with which we disagree, and that, despite differences, people of goodwill can pull together for the well-being of the institutions we serve and our country, I will be overjoyed, as I am confident Justice Scalia would be.”

Ruth did not send “Ruth Sent Us.” But she and Antonin could send us to seek common ground in helping children and their mothers.

Doerflinger worked for 36 years in the Secretariat of Pro-Life Activities of the U.S. Conference of Catholic Bishops. He writes from Washington state.

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