The Fantasy Life of Justices - morality of Supreme Court stand on abortion

National Review, Dec 31, 1999 by Gerard V. Bradley

Mr. Bradley is a professor of law at the University of Notre Dame.

IT was the day before Roe v. Wade's 25th birthday, the day most of us first heard of "that woman, Ms. Lewinsky." But on January 21, 1998, two tales of out-of-control sex were told in Washington. Here is the story of the one you have heard less about.

On that cold, clear morning, Missouri senator John Ashcroft convened a hearing of his Subcommittee on the Constitution. The subject was Roe v. Wade. The occasion was notable for the appearance of Norma McCorvey- "Jane Roe"-now a convert to the pro-life cause. More telling even than McCorvey's testimony was an exchange between Ashcroft and Georgetown law professor Michael Seidman. Ashcroft's question: Is there any case other than abortion, now that slavery is outlawed, where the law gives one person the authority of life and death over another?

Seidman responded that if judges failed to protect the abortion license, they would no longer be able to protect society from truly shocking dangers:

Suppose the state of Missouri were to decide that it was underpopulated. And in order to deal with the underpopulation, the state decided that they were going to, against the will of women, artificially inseminate them and force them to bear children that they don't want to bear.

Get it? Ashcroft didn't, probably because he is morally sane. "Professor," he said, "that's sort of an interesting hypothetical." But what has it to do, he wondered, with a private franchise to kill?

Ashcroft was right to wonder. In Missouri, abortion had been illegal for eons until Roe made it a constitutional right, and yet, somehow, the Show Me State managed to steer clear of Seidman's hypothetical calamity. Missouri did so largely because it is located in the real world, the one in which people govern themselves guided by elementary moral distinctions. This world, sadly, is alien to current constitutional law. Seidman, in fact, was merely rephrasing the view of the U.S. Supreme Court. In Planned Parenthood v. Casey (the 1992 case that reaffirmed Roe), three Republican appointees said that, but for the abortion license established in Roe, "the state might as readily restrict a woman's right to choose to carry a pregnancy to term as to terminate it, to further asserted state interests in population control, or eugenics, for example."

Now do you get it? The liberty to abort is indistinguishable from the liberty to have children. And both are indistinguishable from, we are to suppose, involuntary impregnation.

But no one really thinks this way-not Supreme Court justices, not even most law professors. What, then, can the Court possibly mean when it says that the state might as readily impose, as ban, abortion?

Here is the justices' predicament: They want to justify a liberty for acts, including abortion, that Americans disapprove. But they defend their solicitude for these acts neither by reliance on the Constitution nor on a favorable, though extraconstitutional, moral evaluation of the acts. Professor Seidman stated at the January hearing both that he knew not what he thought of the personhood of the unborn, and that he was sure nothing in the Constitution or the Framers' intent addressed the matter of abortion.

This is just as well. For, if the Court were to insist that abortion rights were within the contemplation of the Constitution itself or the history of its interpretation before Roe, no one would believe it. And if the Court had grounded Roe squarely on the positive moral value of abortion, people would (rightly) wonder why the justices' moral views trump all others. The Court does not hanker for a world in which its authority to decide depends on the moral correctness of its decisions. That's why Roe expressly prescinded from the questions of when life begins, and who or what constitutes a "person."

Now, one might expect that this situation is tailor-made for a solution through democratic self-governance. We have abortion rights, even though neither the Framers nor the American people brung 'em. But we also have a democracy.

How, then, do the courts plan to convince the people to retain abortion rights? By taking hostages. The justices know that the public is inclined to question, if not challenge, their abortion decisions. The Court's strange assertions are warnings that incoming fire will take out genuine liberties that the justices have tethered to the abortion- rights impostors. Recall Seidman's concern about the forced impregnation of Missouri's women. I guess we are supposed to say, "Gee, I wouldn't want my daughter to be forced to bear the commissar's children. Oh, well, I'd better go along with the Roe decision."

This is a bluff, and the people may call it. The threat works only if there is good reason to fear that, as the Casey court said, the "state" might "readily" adopt a China-type family policy. Of that, the likelihood is zero.

The justices, therefore, have taken more hostages. They have shackled together decisions not just about pregnancy, but sexual liberation more generally. The revolution in constitutional law is a lot like the Clinton scandal: Fundamentally, it's about sex.