Are nearly fifty years of precedent enough to insulate the abortion right established in Roe v. Wade from the challenges posed by restrictive new laws in Texas, Mississippi, and elsewhere?
The Texas law is drawing headlines because the U.S. Supreme Court recently declined, apparently on grounds of standing, to hear a first case challenging the law’s ban on abortion after six weeks. President Joe Biden immediately decried the Court’s demurral on the case as the onset of “unconstitutional chaos” requiring a “whole-of-government” response. His alarm about Texas may be overblown, since even staunch opponents of legal abortion, like Sen. David Cassidy (R-La.), predict that the Court may ultimately “destroy” the Texas law due to its novel enforcement mechanism, which prevents the state, but empowers individuals, to sue any person aiding in an illegal abortion.
The real action will come later this term when the Court hears oral arguments in Dobbs v. Jackson Women’s Health Organization, in which supporters of legal abortion contest a Mississippi law forbidding abortions when “the probable gestational age of the unborn human” is 15 weeks or more. (Limited exceptions are allowed for medical emergencies or “severe fetal abnormality.”) Mississippi explicitly asks the Court to overturn Roe v. Wade and related decisions. Unlike the Texas case, the Justices have actually accepted this case for full consideration and are expected to rule by the end of June 2022. The Washington Post has sounded the alarm that the Dobbs case “could kill Roe. v. Wade.”
James Montanye praises Roe v. Wade for having constitutionalized a “deftly circumscribed individual liberty,” establishing a precedent that deserves to be upheld indefinitely. Montanye’s argument deserves consideration.
Is the abortion right under Roe “deftly circumscribed”? Not really. As Harvard jurist Mary Ann Glendon famously argued in her Abortion and Divorce in Western Law, abortion “is subject to less regulation in the United States than in any other country in the Western world” (p. 112). Glendon demonstrated that every other modern democratic nation had a review protocol taking a decision for elective abortion out of the exclusive hands of a woman and her doctor (as Roe mandated) and making it subject to an approval process hinging on independent social and medical standards. The only twentieth-century counterparts to the largely limitless American abortion liberty were the Soviet Union and North Korea. Even a recent CNN article, headlining the Texas law as “one of the most restrictive in the developed world,” ends up giving details showing that things have not changed much since Glendon’s study. Judging from CNN’s details on foreign abortion law, it remains the case that, apart from the new Texas law and the temporarily suspended law in Mississippi, the post-Roe American legal framework for elective abortion is less restrictive than virtually any other advanced nation.
It can be argued, as Montanye does, that after fifty years Roe is “settled law.” Yet even the late pro-abortion justice Ruth Bader Ginsburg famously characterized Roe as a problematic, unstable precedent. Its nationally uniform rules were so unsettling that it triggered far more opposition to liberalized abortion than she believed was necessary. Of Roe and its related cases, Ginsburg said, “Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable.” Although they long disagreed about abortion itself, on this point Ginsburg and Glendon saw eye-to-eye. As Glendon put it, when courts “unnecessarily decide such controversies on constitutional grounds,” potentially “creative and collaborative processes are brought to a halt.” By preempting state jurisdiction and nationalizing abortion law, Roe plunged the country into fifty years of acrimonious disagreement that continues to roil the body politic.
Roe v. Wade did not deftly circumscribe the liberty of elective abortion, and it never crystallized into a stable, widely-accepted precedent. In fact, its nearly limitless sweep is a primary reason why its precedential force is so brittle.
Still, James Montanye praises Justice Anthony Kennedy for articulating what Montanye calls the “classical-liberal” essence of post-Roe abortion jurisprudence. In Planned Parenthood v. Casey (1992), the follow-on case that solidified the abortion liberty established by Roe v. Wade, Justice Kennedy famously wrote for the Court that “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” It is easy to understand how such language appeals to classical liberals. After all, what better way to honor individual liberty than to ensure that each person is free to define and live by his own notion of the meaning of his own life?
The difficulty comes, of course, when one sets out to define someone else’s life. When the individual has the “right” to define (or define away) someone else’s humanity, we have entered into territory that is the antithesis of the classically liberal view.
The significance of Justice Kennedy’s claim in the so-called “mystery” passage in 1992 is that, when it comes to abortion, each individual gets to decide privately who counts as a human being and who does not—and, if the person is a pregnant woman or her doctor, that person is legally entitled to treat the designated entity accordingly, even when that involves lethal violence. Jarring as it is to say so, this is essentially the argument made by 19th century advocates of slavery. They argued that certain people (white voters) should be free to decide whether descendants of trafficked Africans were human beings or not; or at least that the majority of white voters in each state should decide who counted as humans in their state. This was Stephen Douglas’s contention against Abraham Lincoln in their famous 1858 debates. Douglas styled the freedom of voters in each state to define others as human or less than human, according to their own lights, “popular sovereignty.” Stephen Douglas was in effect pro-choice on slavery at the level of each state. As Lincoln argued, in concert with the great Black abolitionist Frederick Douglass (no relation and not to be confused with Stephen Douglas), this view was the antithesis of the principle that all individuals are created equal in their entitlement to liberty.
It is now clear that Justice Amy Coney Barret’s misgivings about abortion law are not, in fact, “curiously progressive” as Montanye would have it, but rather fully consonant with the classical liberal outlook, while Justice Anthony Kennedy’s are not.
The paramount question, of course, is not about consistency with classical liberalism. The paramount question is, and has always been, is what we’re talking about a human life?
The objective answer to this question hinges not on religion or ideology, but on empirical evidence. For analytical clarity, break the standard question about life into three specific, empirical sub-questions. First, is the tissue of the pre-born entity living tissue or dead tissue? Clearly it is living, else there would be no contest about it; it is living like every other living cell. Second, is it human tissue or non-human tissue? Check the cell DNA: it is tissue of a member of the species homo sapiens. Third, does it have a distinct individual genetic identity, or does its genetic blueprint match that of other cells comprising a woman’s body? Again, check the DNA: every cell of the pre-born entity carries a genetic fingerprint marking it as an individual distinct from all other individuals in the species. Accordingly, the pre-born entity has its own separate brain, nerve, cardiovascular, digestive, excretory, respiratory, musculoskeletal, immune, endocrine, and reproductive systems. It even has its own blood type, distinct from that of the mother. (Obviously, the distinct unborn person is dependent on the mother for nutrition and survival, but just as obviously the born child is also dependent upon the mother and others for nutrition and survival; moreover, many injured and infirm persons are equally dependent.)
The findings of advanced ultrasonography—like the findings of genetic science—were not available in earlier eras, but they reconfirm this analysis at each point.
It is hard to avert one’s eyes from the increasingly plain empirical evidence that the unborn is a human life. The continuing and by some accounts rising aversion to elective abortion is driven by the public’s growing awareness of this evidence. Religion is indeed part of the story here. But it is the second part of the story. Science tells us who humans are. Religion and law tell us how we ought to treat them, once we know who they are.
Having addressed the heart of the matter—is it a human life?—we could stop here. But James Montanye explores another religious angle not typically upheld by defenders of Roe v. Wade.
Montanye notes that opposition to abortion is often “grounded upon theological values.” Montanye’s point would be a commonplace, if he did not go on boldly to note that “theological and secular moral values are merely alternative, interchangeable kernels” around which abortion views form. In this he echoes, perhaps unwittingly, certain pro-life analysts who argue that, far from a neutral vantage point, secularism has become the functional equivalent of a religious ideology in American law. Robert P. George’s The Clash of Orthodoxies is a prime example. Unlike George, but like contemporary postmodernists, Montanye asserts that “no principled basis exists for distinguishing between theological and secular moral dogma.” Such an assertion is now fashionable, but it is hardly self-evident, and nearly three millennia of natural law thinkers, starting with Aristotle in ancient Greece, have argued to the contrary.
According to Montanye, the fact that abortion liberty emerges from the rationally groundless religion of secularism, just as opposition to abortion emerges from supposedly rationally groundless traditional religion, leads to the conclusion that secularism should win the day. “All dogma innately is religious,” he says, and its “legislated imposition” is bad; therefore, the “overarching holding in Roe” should be “preserved.” To do otherwise, he argues, would be to violate the no-establishment rule of the First Amendment which, by the logic of incorporation via the Fourteenth Amendment, binds the states (like Texas and Mississippi) as much as it does Congress.
Unfortunately, by the terms of Montanye’s secular-religious equivalence, Roe v. Wade’s imposition of liberalized abortion law must itself have been a violation of the First Amendment’s no-establishment rule. It seems that Montanye failed to notice this flip side of his argument—although pro-lifers have long and avidly advanced exactly that point.
This risks a short digression into First Amendment jurisprudence, necessitated by Montanye’s religious establishment claims. The First Amendment’s declaration that Congress may not make any law “respecting an establishment of religion” announces a limit on federal legislative power, not an individual right. The First Amendment does protect individual liberties—to religious free exercise, to speech, press, assembly, etc. But the Establishment Clause rule—against any federal legislation concerning an establishment of religion—is a structural constraint imposed on Congress’s legislative power, not a liberty entitlement possessed by individuals; it protects a domain of state prerogative against Congressional encroachment; it protects states from federal intrusion, rather than protecting individuals from government infringement of their personal liberties.
As James Montanye rightly points out, the Supreme Court has held (in Gitlow vs. New York and elsewhere) that the Fourteenth Amendment incorporates the liberty rights of individuals, originally protected against Congressional infringement, now also against state interference. But Montanye is wrong about the Fourteenth Amendment incorporating the no-establishment clause. It would be incoherent to incorporate the First Amendment’s Establishment Clause “against” a state, because to do so would be to tell a state it must abide by a structural rule that stops Congress from intruding into the state’s own jurisdictional prerogatives. Yale legal scholar Akhil Reed Amar, no conservative, makes this argument, explaining that the Establishment Clause and the Tenth Amendment are both in principle “unincorporable.” As legal historian Daniel Dreisbach puts it, “incorporating the nonestablishment provision...is as nonsensical as incorporating the Tenth Amendment.”
That’s why the states have their own non-establishment clauses in their state constitutions. By means of such state constitutional clauses, states do for themselves what the First Amendment—even via the Fourteenth—does not do for them.
My short digression is over, but it matters because James Montanye’s religious argument hangs on it. Of course, Montanye is right that many opponents of an unfettered right to elective abortion are motivated by their (traditional) religion. Similarly, many people opposed to theft and defamation are motivated by traditional religion. Does this mean that theft and defamation only matter in a religious framework, or that to forbid them by law is an establishment of religion? Obviously not.
Protecting unborn human lives from wholly unaccountable private acts of lethal violence may effectively be an establishment of science, but it is not an establishment of religion. To do so, as Mississippi has tried to do, upholds the equal liberty rights possessed by all individual human beings.
Certainly, there are many important arguments to be had about the best-calibrated means of protecting the rights of the unborn and all others. Texas might have gotten the mechanism wrong; Mississippi too may have missed something. But respect for human worth, dignity, and liberty points us clearly in the direction of appropriate legal protection for all human life, regardless of its status. Can a liberal-minded person—classical-liberal or otherwise—really disagree?