The author would like to dedicate this article to his sister Mary Mullaney Kearney who passed away in June of 2024. Former attorney for the National Conference of Catholic Bishops, Notre Dame Law School graduate, mother of 7, grandmother of 13—with more sure to come—and sibling to 7, Mary’s love of life’s value was an example to us all.

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In his 1994 book C. S. Lewis for the Third Millennium, Peter Kreeft, professor of philosophy at Boston College, notes that “every civilization in history has had a religious base” and that “without religion [there are] no moral absolutes, no real morality; and without real morality no survival of civilization.”¹ Bearing Professor Kreeft’s thoughts in mind, in this article I will examine America’s more than five-decade struggle with abortion, taking into account associated moral issues and the obligation of political communities to them. Throughout this struggle we will see a growing recognition and protection of unborn life in both American law and advocacy, at first nominally consistent with these moral obligations as evidenced by an increasingly broad scope of state authority on behalf of unborn life. More recently, how-ever, an Originalist advocacy has been presented that, for reasons described below, argues the unborn child is properly viewed as a constitutional “person,” entitled to recognition as a rights-bearing entity and, with that status, to a due process protection of its life.²

In his 1988 encyclical Fides et ratio, John Paul II wrote:

. . . God desires to make himself known; and the knowledge which the human being has of God perfects all that the human mind can know of the meaning of life.”³ [Emphasis added.]

God’s desire to “communicate” can be seen within both the material world and mankind’s interior life. In fact, within the material world his “messaging” is what makes life at all possible. Consider the case of Alex Loce, a young man from Queens, New York, who in April 1991 was tried for trespassing at an abortion clinic in Morristown, New Jersey. At the time of his trespass Alex was aware that his fiancé had scheduled the abortion of their unborn child at the clinic. The night before the procedure he had gone before the Supreme Court of New Jersey in an unsuccessful attempt to enjoin the abortion, believing that his unborn child had a right to live, a right he believed should be protected by the Due Process Clause of the Fourteenth Amendment. The courts having failed him, his actions at the clinic—entering and actually chaining himself to the door where the abortion was to take place—were a final attempt to save his child’s life. Despite his efforts, he was unsuccessful; his child was aborted, he was arrested, and he was put on trial.⁴

At his trial Alex again raised his unborn child’s right to life, this time in his own defense. Toward the end of demonstrating the existence of a life entitled to due process protection—and with the help of John Cardinal O’Connor of New York—the now Venerable Dr. Jérôme LeJeune traveled from Paris to Morristown to lend his expertise to Alex’s case.⁵ The testimony of this remarkable man—though offered in 1991—remains relevant today. At the outset of his testimony Dr. LeJeune was asked, “When does life begin?” He answered by describing what life is—a combination of “spirit” and “matter.” The “spirit” is the source of the information written on the DNA contributed by mother and by father to the new being at conception. This information is “read” by the fertilized ovum and its “message” immediately begins to ani-mate the matter constituting this new being into a uniquely human form. At conception, he told the court, not only is this being demonstrably human, it is unique within the species—an individual—a product of procreation which has never existed before and which will never exist again. As Dr. LeJeune explained, life is not entirely material. In fact, there is no such thing as living matter. Matter is matter. What exists is animated matter, alienated from its prior form in response to the information that commands its response, a material fidelity to the “message” of life. This fidelity commences at conception and continues until the “symphony of life”—as Dr. LeJeune described DNA’s processes—has been fully played, at death.

Dr. LeJeune made the whole thing understandable by way of example. On a recording tape containing Mozart’s serenade known as “Eine kleine Nachtmusik,” there are written tiny bits of information. When the tape is placed in a tape recorder, the recorder reads that information. Of course, the information does not produce musicians or notes of music. Rather, from this information the recorder produces vibrations of air that transmit to us the genius of Mozart. Similarly, the information written in our DNA is “read” by the recipient cell, matter is animated in response to that information, and what is communicated and responded to is the genius of life’s composer, the Creator, in the form of a human life. It is only through this fidelity—matter’s response to God’s transmitted message of life—that life is at all possible.

Dr. LeJeune was clear that when the “message” contained in human DNA is a human message, life exists, and that life is a human life. More important, though the existence of a new individual member of the species can be determined by its genetic message from conception—much like a supermarket scanner can identify the object scanned and its price—nothing in science can tell us the value of the new being.

According to St. John Paul II, man, being naturally rational, has the capacity to reason, to search for truths through the use of intellect. Guided by faith, reason serves to afford man knowledge of a “universal moral law,” communicated as a kind of “grammar” written on the human heart and setting forth the fundamental moral principles concerning what Pope St. John Paul II de-scribed as the “goods of existence,” those things in Creation which are undeniably good, such as life itself. We have a moral obligation to recognize and protect these goods. John Paul II goes on to consider a second characteristic of human nature—freedom: the ability to be faithful to this “message” of the “universal moral law” or to rebel against it. Freedom thus gives man a moral agency, an ability to willfully further or thwart the Creator’s intended order of reality. Further, and important to us, in possessing this unique nature, every man is endowed with a dignity unique in Creation—a specifically human dignity emerging from man’s interior life being imprinted with the image and likeness of God. And within that dignity is an inalienable right to life.⁶

In his 1995 encyclical Evangelium vitae, John Paul II considered this morally grounded inalienable right to life within the fields of politics and law. He began in Note 2 by recognizing the right’s original character: that it is not the product of an act of government:

Even in the midst of difficulties and uncertainties, every person sincerely open to truth and goodness can, by the light of reason and the hidden action of faith, come to recognize in the natural law written in the heart the sacred value of human life from its very beginning until its end and can affirm the right of every human being to have this primary good respected to the highest degree. [Emphasis added.]

In Note 20, he first notes the purpose of a subsequent political community (“Upon recognition of this right, every human community and the political community itself are founded”) and then proceeds to consider the position of a democracy assuming an authority to violate the right to life by placing its recognition to a vote:

[If] the original and inalienable right to life is questioned or denied on the basis of a parliamentary vote or will of the people—even if it is the majority . . . the right ceases to be such, because it is no longer founded in the inviolable dignity of the person, but is made subject to the will of the stronger part. In this way democracy, contradicting its own principles, effectively moves towards a form of totalitarianism . . . when this happens the process leading to the breakdown of a genuinely human co-existence and a disintegration of the State itself has already begun. The State is no longer the common home where all can live together on the basis of fundamental equality, but is transformed into a tyrant state, which arrogates to itself the right to dispose of the life of the weakest and most defenseless members, from the unborn child to the elderly, in the name of a public interest which is really nothing but the interest of one part. The appearance of the strict respect for legality is maintained, at least when the laws permitting abortion and euthanasia are the result of a ballot in accordance with what are generally seen as the rules of democracy. [Emphasis added.]

Finally, Note 20 contrasts such an authority with a proper democratic purpose, writing:

Really, what we have here is only the tragic caricature of legality; the democratic ideal, which is only truly such when it acknowledges and safeguards the dignity of every human person, is betrayed in its very foundations: how is it possible to speak of the dignity of every human person when the killing of the weakest and most innocent is permitted? [Emphasis added.]

In sum, John Paul II has provided a complete spectrum of life’s place in human law: from the dignity of the human person as the moral basis for an inalienable right to life, to the purpose of a subsequent political community being to safeguard that right, and, finally, to the disastrous consequences of its being violated as part of a democratic process, a disintegration. All flow from the “message” of the Creator’s “universal moral law,” communicated through human reason and grounded in religious truths.

There is a remarkable similarity in Dr. LeJeune’s testimony, John Paul II’s teachings, and America’s foundational ideals. In our Declaration of Independence, the Founders held as self-evidently true that the Creator endowed “all men” with the inalienable rights to Life, Liberty and the Pursuit of Happiness. Within the American experiment, we might view these rights not only as political aspirations, but as religiously based moral ideals establishing a national obligation to the “goods” of mankind, among them life and liberty. In his 1990 book Natural Law and Natural Rights, former Oxford Professor John Finnis wrote that the purpose of any system of government is to bring about the realization—the practical effects—of the subject nation’s ideals.⁷ This leads us to ask: How has America done in bringing about the practical realization of the right to life of the unborn child, a known member of the class of “all men”? Has America been faithful? Certainly not. Beginning with Roe v. Wade in 1973, the Supreme Court not only found a constitutionally grounded right to abortion, it also limited the authority of states to democratically provide affirmative protection to unborn life. Arguing that it was unable to determine when life begins and unwilling to “speculate” on a starting date, the Supreme Court declared unborn life to be “potential,” a status providing a very limited basis for protective regulatory state action and in practical terms sanctioning abortion on demand. The Court then went on to consider the independent question of the unborn child’s inclusion within the Fourteenth Amendment’s Due Process right to life. Noting that such a right, if established, would cause the case for legalized abortion to “collapse,” the Court conducted an infratextual analysis, examining fourteen unrelated uses of the word “person” within the Constitution (“persons” being the class entitled to due process protection)—for example, the age requirements for “persons” to serve as president or member of Congress. Noting that all such uses were post-natal, and again without taking into account whether the unborn child possesses the enumerated due process interest of life and the law’s obligation to it, the Court held the unborn child to be a “non-person,” serving to exclude the entire class of humanity from protection of the law on its own account.

Post-Roe cases, including Akron v. Akron (1983),⁸ Webster v. Missouri Reproductive Services (1989),⁹ and Planned Parenthood of Southeast Pa. v. Casey (1992),¹⁰ began to show a slightly greater fidelity to the “universal moral law” by recognizing the “actuality” of unborn life in terms of states having “compelling” or “substantial” interests in furthering its protection. However, these state interests, post-Casey, remained subordinate to Roe’s abortion liberty, as they were limited to the extent that they did not impose “undue burdens” upon the exercise of the liberty itself. In effect, life was subordinated to the right of its being taken.

Most recently, in Dobbs v. Jackson Women’s Health Organization (2022), the Court moved further, not only striking down Roe’s constitutional basis for abortion, but also allowing states to restrict or entirely ban the practice based upon, among other interests, a “respect for preservation of prenatal life at all stages of development.”¹¹ Thus, today a state may act without qualification to protect unborn life, a great improvement over prior law, but still the state remains under no obligation to do so. Some states have acted to restrict or ban abortion, others have chosen to allow it. And as women may travel from one state to another to obtain the procedure, doubt is cast upon Dobbs’ practical effects.

We might here take a moment to consider some practical effects of Dobbs, which, ironically, may present a greater danger of violating America’s ideals than its predecessors. For almost 30 years after Casey was decided, states were prohibited from materially restricting abortion so as not to impose an “undue burden” upon its availability. That limitation is no longer applicable, based upon an acknowledged value of unborn life, and therefore states affirmatively allowing abortion—or even failing to protect unborn life by affirmative legislation—do so as democratic mandates of the people themselves, not as imposed by judicial fiat. Any such laws or omissions thus reflect the ethic of the entire body politic—a collective will—in violation of the moral man-dates spoken of by John Paul II and (again according to John Paul II) corrupting the moral fiber necessary for the nation to exist as an integrated whole.

America might also consider Dobbs’ new democratic freedom in terms of its experience with prior democratic violations of declared inalienable rights. Shortly before the Civil War, Abraham Lincoln also warned that America, being animated by its emphasis on equality and inalienable rights, could not survive if sustained by state-sanctioned enslavement. Describing pro-slavery legislation as democratic despotism, he predicted that its continued practice “doomed the Nation to failure.”12 And in fact the breaking out of civil war demonstrated the failure of America as a group of united states tolerating state-sanctioned slavery. It is noteworthy that the major contributor to the nation’s re-integration—and subsequent flourishing—after the Civil War has been a recognition of liberty as an individual constitutional right in the Fourteenth Amendment ratified in 1868. It has thus been America’s experience that its ideals concerning life and liberty—grounded in moral obligation—are only practically realized if they are recognized in law as individual rights possessed by “all men” and protected from the dangers of the democratic process. Failure to do so has resulted (and, we are warned, will again result) in a national instability.

Still, despite these warnings and experiences, our nation has not yet seriously considered that the unborn child’s life is entitled to due process protection on its own account. Today the State—not the Creator—is in effect the font of unborn life’s value, and as such possesses an authority exempted from any moral limitations, leaving to the shifting sands of politics the discretion to protect or violate that life.

Why is this? Why have those who since Roe have seen the abortion liberty as constitutionally illegitimate and abortion as a moral wrong failed to advocate a due process protection of unborn life? Such a protection would certainly be consistent with the nation’s ideal of the inalienable character of the right to life as well as any applicable moral obligation. Ironically, the answer (at least in part) lies within the tenets of the constitutional theory relied upon by Dobbs to overturn Roe’s abortion liberty, Originalism. Originalism argues that each provision of the Constitution becomes fixed at the time of its framing and ratification. As such, any such provision must be conserved and interpreted today according to its original public meaning at ratification, and this original public meaning today has the force of law. The doctrine holds that “original public meaning” is discovered through examination of a subject provision’s place in Anglo-American common law tradition and how it has been historically interpreted in cases with precedential value.¹³ Thus, Originalism’s purpose is to conserve an original intent in constitutional law, allowing for a fixed standard of review of constitutional questions and protecting against the undemocratic imposition of an activist Court’s social or political agenda, such as Roe’s abortion liberty.

Despite its laudable effects in Dobbs—its rejection of an abortion liberty as having had no original public meaning at the time of the Fourteenth Amendment’s ratification in 1868—Originalism also advocates the exclusion of the unborn child from the scope of due process protection, a position long sup-ported by prominent Originalists such as the late jurists Robert Bork and Antonin Scalia. In an October 2003 First Things article entitled “Constitutional Persons: An Exchange on Abortion,” Judge Bork wrote:

That reading [the prenatal life right] seems to me absurd. The constitutional question is not what biological science tells us today about when human life begins. No doubt conception is the moment. The issue, instead, is what proponents and ratifiers of the 14th Amendment understood themselves to be doing. [Emphasis added.]¹⁴

Justice Scalia made essentially the same point in an April 24, 2008, CBS news interview with Leslie Stahl:

There are anti-abortion people who think that the constitution requires a state to prohibit abortion. They say that the equal protection clause [due process clause] requires that you treat a helpless human being that is still in the womb the way you treat other human beings. I think that’s wrong. I think when the constitution says that persons are entitled to equal protection [due process] of the law, I think it clearly means walking-around persons.¹⁵

With all respect to Justice Scalia, Judge Bork, and Originalism’s part in Dobbs, Originalism so limited seems to omit as much as it seeks to conserve. By conceding the fact of prenatal life but denying it the law’s protection, the theory today renders the fact of life constitutionally irrelevant, an infidelity to the nation’s ideals and, according to John Paul II, to the moral grounds defining the obligation of America as a political community, to safeguard the “good” of life.

However, a new form of Originalism seems to be taking shape. Professor Finnis and Princeton’s Professor Robert George—two current prominent Originalists—filed amicus and enhanced amicus briefs with the Supreme Court as it was considering the Dobbs decision. These briefs were later supplemented in the Harvard Journal of Law and Public Policy in an article entitled “Equal Protection of the Unborn Child: A Dobbs Brief.”¹⁶ There the authors conducted an exhaustive Originalist analysis of the original public meaning of the word “person” at the time of the Fourteenth Amendment’s ratification. Their analysis included consideration of foundational treatises (including Blackstone’s Commentaries),¹⁷ the criminal law protections of the unborn child in American common law (including state court cases during the Antebellum and Ratification Eras),¹⁸ the unborn child’s status in American civil law,¹⁹ and relevant state abortion statutes during these time periods.²⁰

Summarizing the “sources marshalled” in their research,²¹ Professors Finnis and George concluded that all historical evidence “point[s] in a single direction.” Namely, that “among the legally informed public at the time, the meaning of ‘any person’ . . . plainly encompassed unborn human beings.” [Emphasis added.]²² They went on to state:

a future Court could (as it should) hold that prenatal children are constitutional per-sons, protected by the Equal Protection Clause [Due Process Clause], . . . a future decision of the Supreme Court could adopt everything that, on the arguments of our Brief and this Article, is required by fidelity to the constitutional text and history in order to do justice to the rights given constitutional status in 1868, rights (as we have argued) . . . of persons prior to their birth . . . [Emphasis added.]²³

Harvard law student Joshua Craddock conducted a similar analysis, drawing similar conclusions, in his 2017 Harvard Journal of Law and Public Policy article entitled “Protecting Prenatal Persons: Does the Fourteenth Amendment Prohibit Abortion?”²⁴

Professors Finnis and George are advocating not only radical change in the Originalist position on abortion (which identified it as an issue to be resolved by the state democratically), but a radical change to American jurisprudence more generally. In extending a constitutional protection to unborn life, they are necessarily redefining the nature of the freedom relied upon by the Supreme Court in sanctioning abortion and are doing so on moral grounds, even if unstated. Let’s consider that freedom, its essence having been set forth by the Casey Court: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe and the mystery of human life.” [Emphasis added.]²⁵

The French existentialist Jean Paul Sartre once said “ . . . there can be no eternal truth because there is no infinite and perfect consciousness to state it.” If there are no eternal truths—because there is no God—each individual may define his or her own truths, including the limits of one’s own freedom. Casey’s abortion liberty is a godless existentialism, leaving individuals—subject only to their own similarly unrestricted consciences—free to extend their freedom to the taking of human life. Exactly this liberty is now extended to the states by Dobbs. Being exempt from the reason-based limitations imposed by the “universal moral law,” the abortion liberty, exercised either by an individual or by the state, may best be described as a liberation from human nature.

As might be expected, John Paul II viewed human freedom differently, writing in Veritatis splendor:

The Commandments . . . represent the basic conditions to love of neighbor . . . at the same time they are proof of that love. They are the first necessary steps on the journey to freedom, its starting point. [Emphasis added.]26

A true freedom is thus constrained by pre-existing moral standards attached to “an essential and constitutive relationship to [religious] truth.” These standards precede an individual’s or political community’s existence and serve to limit any freedom sought to be exercised, in particular as would bear upon the treatment of human life. As to Casey’s existential vision, John Paul II disagreed, writing in Veritatis splendor:

Certain currents of modern thought have gone so far as to exalt freedom to such an extent that it becomes an absolute, which would be the source of values. (Emphasis in Original.) The individual [or collective] conscience is accorded the status of a supreme tribunal of moral judgment which hands down categorical decisions about good and evil. [Emphasis added.]²⁷

In advocating a prenatal life right—although on Originalist grounds only—Professors Finnis and George have necessarily abolished Casey’s freedom, an abolition that can only be justified on religiously based moral grounds, even if those grounds are not explicitly stated. But Daniel Dreisbach, professor of law at American University, has pointed out that America lives in the presence of a First Amendment “wall of separation,” which “not only prohibits the civil state from intruding upon the religious domain, but also prohibits religion [or its moral mandates] from influencing the conduct of civil government.” Today “the ‘wall of separation’ is the sacred icon of a strict separationist dogma intolerant of religious [or its moral mandates] influences in the public arena. It has been used to silence religious views in the public marketplace of ideas and to segregate faith communities behind a restrictive barrier.”²⁸

However, Professors Finnis and George have managed to avoid the “wall of separation” by not advocating an articulated moral basis against either abortion or the liberty that has allowed it.²⁹ Rather, their advocacy is based only upon the “sources marshalled” in their amicus and enhanced amicus briefs. From these sources they make the case that the unborn child—for the relevant time periods prior to ratification of the Fourteenth Amendment—has been historically recognized in American law as a proper object of the law’s protection. This is evidenced by their research that, not only has the unborn child’s civil interests been recognized and protected in law, the American criminal law has also provided recognition and protection of these interests by rendering punishment for injuries and death suffered from intentional acts prior to birth. In effect, they have argued that the unborn child, but for the abortion cases, has always been recognized as a legal “person,” its interests having been protected in law solely by virtue of its humanity. In doing so, and also without explicitly saying so, they make the points that Casey’s and now Dobbs’ existential liberty has never had a proper place in American law, that our law has always recognized the human dignity of the unborn, and that that recognition must now be extended to the Constitution—the “original public meaning” of the word “person” having encompassed unborn life in 1868. Using Originalist principles, they have successfully avoided the “wall of separation” sub silentio, in the process defending a foundational national cultural identity, the inalienable character of the right to life.

It might be said that Professors Finnis and George are attempting to redefine Originalism, in the process presenting a new and possibly powerful force in the evolution of America’s abortion laws. And as might be expected, their advocacy—at least initially—will not be well received, not only by abortion’s advocates, but also by those within the Originalist community. As to the latter, we have seen that Justice Scalia and Judge Bork disagreed with the case for a prenatal due process life right according to “conservative” Originalist interpretations. Other commentators have disagreed as well. Paul Linton, in his Summer 2007 Human Life Review article entitled “Sacred Cows, Whole Hogs and Golden Calves,” described its pursuit as a “counsel of despair dressed up in the guise of a false hope,” his disagreement being that its practical realization is unlikely given current law and judicial leanings.

But in parting ways with Originalism’s solely “conservative” character on the issue, Professors Finnis and George are recasting the theory on the more general basis that America has historically recognized the “universal moral law” is the only legitimate basis of public authority. This paves the way on principled legal grounds for what can be called progress; the extension of constitutional protection to unborn life; and the practical realization of America’s ideal of life through fidelity to that “universal moral law.”

We might describe America’s steps on its journey to the Truth of Life by way of metaphor. In his work America’s Constitution: A Biography, Yale Law School Professor Akhil Reed Amar described America’s pursuit of a more perfect union in terms of the Great Seal of the United States. He wrote: “That Seal contains a giant yet perpetually unfinished pyramid, gesturing upward with a blank space through the apex.”³⁰ That blank space is constantly added to as America pursues perfection. With all credit to Professors Finnis and George, the next addition to that pyramid might one day be the practical realization of the inalienable character of the right to life by bringing unborn life within the scope of constitutional protection. That expansion, an acknowledgment of God’s “messaging” of the source of human life spoken of by Dr. LeJeune and the obligation to it spoken of by John Paul II, could well be called progress: progress by returning to values long lost in the abortion cases; progress as C. S. Lewis might see it: “We all want progress, but if we are on the wrong road, progress means doing an about-turn and walking back to the right road; in that case, the man who turns back soonest is the most progressive.”

NOTES

1. C.S. Lewis for the Third Millennium, Kreeft, Ignatius Press (1994) at 47.

2. The Due Process Clause of the Fourteenth Amendment reads: “. . . nor shall any State deprive any ‘person’ of life, liberty, or property without Due Process of law . . .” [Emphasis added.]

3. Fides et Ratio, N. 7.

4. The author was Alex Loce’s attorney. For a description of the Loce case and the issues presented, see Mullaney, “State of New Jersey v. Alex Loce: A Father’s Trial and the Case for Personhood,” Human Life Review, Spring 2001.

5. Cardinal Fiorenza Angelini of the Pontifical Academy for Life proposed Dr. LeJeune for beatification on February 20, 2004. Paris Archbishop Andre Vingt-Trois commenced the process in April 2007. Dr. LeJeune was declared Venerable by Pope Francis on January 21, 2021.

6. See “Pope John Paul II and the Dignity of the Human Being,” Rev. John J. Coughlin, O.F.M. 27 Harv. J. L. and Pub. Pol., 65 (2003–2004).

7. See Natural Law and Natural Rights, Chapter IX, “Authority,” Chapter X, “Law,” John Finnis, Clarendon Press, Oxford (1980).

8. City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983); see also Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 477 (1986).

9. Webster v. Missouri Reproductive Health Services, 492 U.S. 490 (1989).

10. Planned Parenthood of Southeast, PA v. Casey, 505 U.S. 833 (1992).

11. Dobbs v. Jackson’s Women’s Health Organization, 597 U.S. 215 (2022).

12. White, Ronald C., Lincoln in Private (Random House). See also “Lincoln in Private Review: Confidential Ruminations,” Bookshelf, Wall Street Journal, Page A15 (May 4, 2021).

13. See Antonin Scalia, “Originalism: The Lesser of Two Evils,” 57 U.Cin. Law Rev. (1989).

14. At the time of Judge Bork’s 2003 First Things article, the Originalist standard of constitutional protection was the intent of the proponents and ratifiers as opposed to today’s original public meaning.

15. CBS News, Justice Scalia, On The Record (Apr. 24, 2008), http.//www-cbsnews.com/news/justice scalia-on-the-record.

16. 15 Harv. J. L. and Pub. Pol., 928-1031 (2022).

17. Id. at 942.

18. Id. at 948.

19. Id. at 965.

20. Id. at 969.

21. Readers are referred to Equal Protection of the Unborn Child: A Dobbs Brief for the analysis undertaken and the conclusions drawn by Professors Finnis and George, which are beyond the scope of this article.

22. Id. at 931-932.

23. Id. at 1030-1031.

24. 40 Harv. J. L. and Pub. Pol. 539 (2017).

25. Planned Parenthood of Southeast, PA v. Casey, 505 U.S. 833 at 852 (1992).

26. Veritas splendor, N. 12.

27. Ibid., N. 32.

28. See First Things December, 2006, P. 67.

29. It might be noted that as the Loce case made its way to the United States Supreme Court in 1993, some 170 friends of the Court from 70 nations around the world joined in its effort to see the unborn child’s recognition as a constitutional “person.” One such amicus was Mother Teresa of Calcutta. In her amicus brief, Mother Teresa noted that America’s fidelity to its ideals of equality, life and liberty, more than its wealth or military might, have made it “an inspiration to all mankind.” Urging a further fidelity, she requested:

the Court to take this opportunity [the Loce case] . . . to consider the fundamental question of when human life begins and . . . to declare without equivocation the inalienable rights which it possesses.

Mother Teresa’s attorney in 1993 was Professor Robert George, then assisted by his able colleague, William Porth. To date, more than 30 years later, the same Professor George (now working with Professor Finnis) continues to make the same points and the same requests, this time not in the simple words of Mother Teresa, but in the academic language of Originalism.

30. America’s Constitution: A Biography, P. 406, Amar, Random House (20025).

 

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Original Bio:

 

Patrick Mullaney is a New Jersey attorney who represented Alexander Loce from 1990 through 1994. Mr. Mullaney considers his pro-life efforts the best use he’s managed to make of the talents the good Lord has given him.