Conservative legal theory and the pro-life movement

Matthew Walther writes on the reversal of Roe v. Wade and the consequence of the pro-life movement’s acceptance of subsuming “a clear moral question into the murk of judicial theory and political strategy.”

Abortion, Walther writes, is the “state-abetted killing of hundreds of thousands of infants each year.” Yet an allegedly conservative U.S. Supreme Court delivered a decision in Dobbs premised on constitutional neutrality on abortion—and in this way it delivered a decision that would have been as explosive in 1973 as Roe v. Wade itself was. “No one believed abortion was constitutional prior to the Supreme Court deciding it was in Roe,” a friend told me recently. Yet the Supreme Court has advanced in Dobbs precisely that view: that the constitutional is compatible with what Walther calls “state-abetted killing” of preborn persons. Walther:

For too long, too many members were more focused on overturning Roe v. Wade than on persuading the American people about the nature of personhood. This equivocation about means and ends, which subsumed a clear moral question into the murk of judicial theory and political strategy, has always given me pause.

In the aftermath of Dobbs v. Jackson Women’s Health Organization, the Supreme Court case that overturned Roe, I am sad to report that my misgivings have been vindicated. The court’s decision may have been a great victory for proponents of states’ rights and a necessary prelude to ending abortion, but the pro-life movement appears less powerful now than it has in years. Certainly, the blithe assumption that the movement included an overwhelming majority of Republican politicians and voters was spectacularly mistaken. …

It wasn’t always this way. In the early 1970s, opponents of abortion were often zealous activists like L. Brent Bozell Jr., whose anti-abortion sit-ins, explicitly modeled after those of the civil rights movement, were frequently denounced by the conservative press. After 1973, when Roe was decided, these opponents called for overturning the decision not simply because it was poorly reasoned and insufficiently grounded in the text of the Constitution, but because they regarded abortion as an unthinkable moral atrocity to which no one had a right, constitutional or otherwise. Roe may have been a weak piece of jurisprudence (as even many proponents of legal abortion conceded), but the ultimate goal of those who denounced it was not to rectify the state of the judiciary.

These priorities should not have changed when the judicial philosophy known as originalism emerged as the most likely means of overturning Roe. But at some point during the intervening years, the wires got crossed.

For decades now, originalism and opposition to abortion have been treated as synonymous by proponents and detractors alike. Pro-life organizations have routinely issued statements that are indistinguishable from originalist rhetoric in their denunciations of “judicial activism” and their emphasis on “the role of a Supreme Court justice, which is to interpret the Constitution without prejudice and to apply the law in an unbiased manner.” Justice Antonin Scalia, perhaps the most prominent originalist, appears as a matter of course on lists of pro-life heroes, even though he maintained that democratic majorities could legitimately legalize abortion if they chose to do so.

The pro-life movement is not the Republican Party and it should not be one and the same as the conservative legal movement. It’s conceivable that the Republican Party could one day become for the anti-abortion cause what it was for the anti-slavery cause, namely a wholly committed vehicle for social justice on an issue that appeared intractable. But the Republican Party is not that today, and neither is the conservative legal movement.

When Americans United for Life filed our first Supreme Court amicus brief in Roe v. Wade, we explicitly argued for constitutional personhood. Yet this is a moral principle, to say nothing of a legal argument, that is now widely rejected within the conservative legal movement, as far as I can tell. I think it rejects this sort of argument because it has come to accept at least three premises of liberalism: First, that even unjust laws can and should carry the force of law. Second, that the Constitution functions without any grounding moral or metaphysical realities. And finally, that human will, or the strictly positive law, is all that there is.

These three premises are fatal for a pro-life movement that would warm America’s heart to the brutal injustices of post-Roe abortion culture. Walther is writing about the imperative of moral persuasion and cultural change on abortion post-Roe, and that is truly important. But I think he is too quick to write off the importance of reforming how we think about the law and the judiciary, and the vision we cast for their priorities in the years to come.

Little by little does the trick, and this is an important moment for the pro-life movement to renegotiate the terms of its political alliances if the aim is truly abortion’s abolition.