Roe v. Wade Reconsidered

This piece is the pro argument in our two-post debate on Roe v. Wade and Abortion. You can find the con argument, written by Graham H. Walker in response to this piece, here.

The Supreme Court’s decision to hear an appeal from Mississippi’s restrictive abortion law raises questions and concerns regarding the longstanding desire among conservative justices, jurists, politicians, and church groups to overturn the Court’s 1973 Roe v. Wade opinion. That opinion constrained the power of States to infringe upon a woman’s due-process “right” to choose abortion. Reconsideration of Roe by the Court’s present “conservative” majority could upend nearly fifty years of deftly circumscribed individual liberty by granting States greater latitude—as Mississippi’s attorneys assert—to “promote women’s health and preserve the dignity and sanctity of life” by restricting abortion beyond present limits.

The Court once again will pit the legal rule of stare decisis against jurisprudential and moral claims that Roe was falsely reasoned and wrongly decided. Two opposing concepts of individual liberty are at issue. The first is former Justice Anthony Kennedy’s classical-liberal dictum in Planned Parenthood v. Casey, 505 U.S. 833, 851 (1992): “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.” The second concept is conservative Justice Amy Coney Barrett’s curiously progressive characterization of aborted fetuses as “unborn victims.”

 The Court consistently has held that Roe is settled law; ergo no compelling reason exists for overturning it. The Casey opinion further noted that Roe is consistent with related opinions that afford “constitutional protection to personal decisions relating to protecting the inherent liberties of marriage, procreation, contraception, family relationships, child-rearing, and education.” Conservative justices, however, maintain that abortion cannot be a constitutionally protected liberty because: (i) neither the Constitution nor the 14th Amendment mentions it; and (ii) longstanding State laws and traditions specifically prohibited it. By this test, a democratic majority (or plurality) of State voters retains the power to decide abortion issues pursuant to the 10th Amendment’s reservation of non-enumerated federal powers “to the States respectively, or to the people.” If so, then, Roe overstepped constitutional bounds by federalizing abortion issues; the Court did so as well when deciding the tangential cases cited in Casey, and when establishing a closely related constitutional “right to privacy.” The Court stands accused in these cases of legislating “rights” from the bench by “discovering” them within constitutional “penumbras and emanations therefrom.”

 The late legal scholar and federal appellate judge Robert H. Bork disparaged Justice Kennedy’s “heart of liberty” dictum as being indicative of airy “New Age jurisprudence.” Yet, Bork also conceded that political majorities govern in such matters for no better reason than that they happen to be majorities. The law-and-economics scholar, and co-founder (with Nobelist James M. Buchanan) of economics’ Public Choice program, skeptically wondered why individuals—whether from behind or before a Rawlsian “veil of ignorance”—would either choose, or consent to have the most intimate and consequential choices of their lives determined by a voting majority of strangers who lacked a material stake in the consequences of their votes. Individuals who oppose abortion on theological grounds must confront a second pithy rhetorical as well, this one by St. Paul: “For why should my liberty be determined by another man’s scruples?” (1 Corinthians 10:29).

 Mississippi’s assertion that its abortion restrictions “preserve the dignity and sanctity of life” smacks of states-rights opportunism wrapped in moral certitude. Abortion challenges often are grounded upon theological values. Here, however, “the dignity and sanctity of life” are presented as secular values, presumably to obviate constitutional scrutiny. If the claim instead were theological, then Mississippi’s law could be judged unconstitutional under prevailing 1st Amendment theory and doctrine, which restrict Congress and States from enacting laws respecting the establishment and practice of religion.

Consider, however, that theological and secular moral values are merely alternative, interchangeable kernels around which self-interested social and political factions form (see “American Democracy as a Fundamentalist Religion”). The Court’s “establishment” and “practice” doctrines presently are predicated on the view, expressed in Wallace v. Jaffree, 472 U.S. 38, 53–54 (1989), that “religious beliefs worthy of respect are the product of free and voluntary choice by the faithful.” Voluntary secular beliefs and values, like their theological counterparts, also are worthy of respect. However, imposing secular religious values involuntarily upon opposed minorities is not.

 Lest the concept of “secular religion” be mistaken for solecism, consider theologian Paul Tillich’s conclusion, in Systematic Theology: Reason and Revelation, Being and God (1973, I:221), that everything secular can enter the realm of the holy and that the holy can be secularized. On one hand, this means that secular things, events, and realms can become matters of ultimate concern, [i.e., they can] become divine powers; and, on the other hand, this means that divine powers can be reduced to secular objects, [and so can] lose their religious character. Both types of movement can be observed throughout the entire history of religion and culture, which indicates that there is an essential unity of the holy and the secular, in spite of their existential separation.

Consider also economist Robert Nelson’s conclusion, in The New Holy Wars: Economic Religion vs. Environmental Religion in Contemporary America (2010, 348–349), that “the leading secular movements of our times are essentially religious in character, drawing on the various Christian traditions that produced Western Civilization. . . . It is time to take secular religion seriously. It is real religion. In the twentieth century, it showed greater energy, won more converts, and had more impact on the Western world than the traditional institutional forms of Christianity.” These considerations weigh heavily upon abortion’s constitutional status.

 The 1st Amendment protects not only religious liberty against infringement, but also the closely related liberties of speech, press, and assembly. The Court held in Gitlow v. New York, 208 U.S. 652, 666 (1925) that the “freedom of speech and of the press—which are protected by the 1st Amendment from abridgment by Congress—are among the fundamental personal rights and liberties protected by the due process clause of the 14th Amendment from impairment by the states.” Broadening this doctrine to encompass the 1st Amendment’s religious clauses would provide a settled constitutional basis for protecting individuals against the coercive imposition of all moral dogma, regardless of its nature and origin. The 10th Amendment logically does not pertain to liberties protected by the 1st Amendment.

 In sum, no principled basis exists for distinguishing between theological and secular moral dogma. All dogma innately is religious, and its legislated imposition undermines constitutionally protected rights and liberties. If the Court were to adopt this line of reasoning, then it’s overarching holding in Roe could be preserved, States could retain jurisdiction over legitimate health concerns, and many objections to Roe’s legal reasoning could be obviated.


This piece is the pro argument in our two-post debate on Roe v. Wade and Abortion. You can find the con argument, written by Graham H. Walker in response to this piece, here.

James A. Montanye is a retired consulting economist in Falls Church, VA.
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