In 1973 when Roe was decided, thirty-one states had laws prohibiting abortion except to save the life of the mother. ... Just before Roe, Michigan and North Dakota voters overwhelmingly rejected liberalization of their state abortion restrictions. If nontextual fundamental rights originate in the history and tradition of the nation, abortion represent the stark anomaly of the crime made into fundamental right.He goes on to quote with approval jurist John Hart Ely, a scathing critic of Roe even though he himself favored permissive abortion laws. Ely wrote:
The problem with Roe is not so much that it bungles the question it sets itself, but rather that it sets itself a question the Constitution has not made the Court's business.
Indeed. People like to point fingers at pro-lifers for making abortion an issue, but it was the lefty, know-it-all, meddling court that made social questions such hot topics in our politics by imposing on populations decisions that were properly matters for elections to decide.
Kmiec then cites himself, in a contemporaneous account he wrote of working in the Reagan AG's office on the Webster case. The 8th Circuit had invalidated a Missouri state law defining conception as the beginning of life; prohibiting state funding of abortion and the use of state facilities to perform or recommend abortions; and requiring doctors to rule on the viability of the child before performing an abortion.
The entire thrust of Kmiec's remarks is repeated frustration with the "squishiness" of successive superiors in the Justice dept. Of Solicitor General Charles Fried's reluctance to take sides on Webster he writes,
Fried fell back on etiquette, saying that it was unusual for the United States to file at the jurisdictional stage. Maybe, but the United States had always done so when there was a strong federal interest.
Now he argues that everyone should simply shut up and "make space" for whatever anyone wants to do.
As the case unfolds, Kmiec writes of his extreme disappointment with the line of Fried's argument.
In his book Fried recalls his argument [which was based not on protecting future life but on violence against women --ed] saying that he looks forward to when "having one day abandoned Roe, the Court might reasonably distinguish between statutes forbidding abortions outright and statutes requiring a delay of a few days...."
Kmiec then says:
This is not the day to which I look forward. Justice White toward the end of Fried's argument asked, if there is a human life involved, is there "some problem about the state permitting abortions?" Fried responded, "Oh no, I think there is not." In my judgment, informed by the natural law foundation of our Constitution, the answer must emphatically be, "Oh yes, I think there most certainly is."This same man just told us Friday
when there are differences among religious creeds, none is entitled to be given preference in law or policy.I would dearly love to ask him now the same question he poses to students in his textbook. Citing Frances Olsen, who argues
the value of life is not a simply attribute of any particular life form, something that can be discovered. Culturally created, the value of life rests on social meanings, and, importantly, on sexual politics.Kmiec asks:
If you think Ms. Olsen is on to something, was it also true that the value of slave life was the product of "social meanings" and racial politics?
Exactly, Prof. Kmiec. Exactly.
Update: Have you seen the Witherspoon Institute's new blog? In a piece entitled Little Murders, Chaput the Great speaking as a private citizen puts the matter strongly.
The abortion conflict has never simply been about repealing Roe v. Wade. And the many pro-lifers I know live a much deeper kind of discipleship than ''single issue'' politics. But they do understand that the cornerstone of Catholic social teaching is protecting human life from conception to natural death. They do understand that every other human right depends on the right to life. They did not and do not and will not give up - and they won't be lied to.
So I think that people who claim that the abortion struggle is ''lost'' as a matter of law, or that supporting an outspoken defender of legal abortion is somehow ''prolife,'' are not just wrong; they're betraying the witness of every person who continues the work of defending the unborn child. And I hope they know how to explain that, because someday they'll be required to.
See also Charles Kesler's excellent The Audacity of Barack Obama.
