I don't think anyone understands the politics of the abortion battle in the U.S. better than Hadley Arkes. Therefore, in light of the SD effort to ban abortion and the spate of columnists Left & Right calling for an end to Roe, I was interested to read Hadley's recent remarks before the National Press Club.
I’ve found it curious that so many people on both sides seemed to think that the Court is now at the edge of overruling Roe v. Wade. I’ve been in the pro-life movement for years, and as a matter of prudence I would not seek an immediate overruling of Roe, for it would set off a panic among people who would think that the Court was now outlawing abortion, or dispossessing them of a right, rather than simply returning the matter to the political arena, where legislators and citizens can deliberate and vote on the matter. And what we are likely to see then is a rush to enact Roe v. Wade into the statutes of various states. My own inclination is to move along the path that, in my reading, John Roberts and Sam Alito are far more likely to take. If they manage to flip the decision on partial-birth abortion—if they manage to sustain the federal bill–they will be saying in effect that “we are in business to start taking seriously, and sustaining, restrictions on abortion.”
That strikes me as a salutary warning --and also, he's right, I don't see anything in either of our new Justices' writings or testimony that indicates they're spoiling for a flat overturn of Roe. With everyone calling for it, it's predictable that when it doesn't happen, half the pro-life movement will go into paroxysms of denunciations of the whole Court: they'll have been set up to have that reaction by their own people. In the meanwhile Arkes shows why "privacy" leaves many questions unanswered.
We have legislated against racial discrimination in private corporations and even private clubs; we have intervened in the lives of families to protect children from abuse or death at the hands of their parents. And with that sense of the matter, the law in the past has even cast its protection on the unborn child in the womb. In each case, the question was whether there were wrongs to be vindicated, harms to be averted; and in each case we would need to judge whether the intervention of the law would be justified. Nothing, in that respect, has been altered—or will ever be. The point is, merely invoking the notion of “privacy” does none of the heavy lifting here. It doesn’t tell us whether the law would be justified in intervening in any case to protect victims from suffering wrongs and irreparable harms.
You have to read him about what does do the heavy lifting; I think you'll find his arguments clarifying.
