. . . But say there hadn’t been a media leak from the vicinity of the U.S. Supreme Court, and say we didn’t know, or couldn’t intuit, how the Court means to rule this summer on Roe v. Wade’s constitutional sanctity, or lack of it. That would have meant . . . what, exactly, in a public sense? Not a cotton-picking thing, I want to suggest, save the absence from the streets this week of demonstrators making known their views on the decision and scandalized media figures tearing the decision apart.
The frenzy we’re now seeing, in other words, would be going on in June or July rather than May. The leak, morally deplorable as it is, as a breach of professional trust and a needless stirring of emotional pots, puts in front of us the thing we were in for sooner or later. There was no way under heaven that Roe was going to go quietly. In highly visible ways, Roe and its subject matter, which is of course the control of life and death, is the arch-problem of modern times. You don’t settle an arch-problem with a judicial edict, as the Supreme Court ought to have known but conspicuously didn’t in 1973.
The Court’s approach in 1973—Roe v. Wade and Doe v. Bolton—was of the weak-school-principal variety: Out to recess, everybody. Don’t forget to come back. The court majority turned the playground over to those who might have been considered pupils requiring a little moral and humane schooling as to the custodianship of human life—always a grand and sacred thing.
“Sacred”—well, that wasn’t going to fly in 1973! America, which G. K. Chesterton had called “a nation with the soul of a church,” had been slowly weaning itself from considerations stemming from belief in an Author of Life. Human life had formerly been a moral question: how to lead it, how to protect it. Natural law gave some guidance, but the main thing to be kept in mind was the human/divine connection. “And the Lord God formed man of the dust of the ground . . .” See!?—It said so right there in the Book of Genesis! That meant, well, some attention was due the Lord’s intentions. Figuring out the worth of human lives wasn’t up to individuals.
To whom was it up, then? A complex question. But in a representative democracy such as the United States of America, if the people were going to speak, they were going to do it after democratic deliberation. And where was all that deliberation to take place? Where it generally took place—in duly constituted and elected bodies. A court hardly qualified as an elective body, save perhaps at the courthouse level. A court isn’t bound (though it may informally bind itself) to consider and put into effect popular assumptions. The legislature does that. And so, with respect to human life, legislatures elected by the sovereign people weighed in on the question of abortion. In the civilized world, which included the United States, legislatures responsible to the voters—that is, to the people—put in place safeguards for unborn life, which safeguards might interfere with the wishes of particular mothers but inferentially reflected the will of the people at large.
From this model of resolution, the High Court, in Roe v. Wade, pretended to rescue Americans without rescuing them at all. Excuse us, excuse us, the justices said in effect. That old stuff? We’re not there anymore. To which grand and uninvited assertion millions of Americans replied, and still do: Oh, yeah, buster? That was in part because theoretically, in a democratic republic, the constituted authorities don’t just announce something new and say, there! They ask first. Legislators, not being judges, know this. Judges, not being legislators, don’t care. Roe v. Wade is what might be called a so’s-your-old-man opinion. A nose-thumbing exercise. A yawn in the face of contradictory viewpoints.
My friends, that’s not how you do business in America. Anyway, it didn’t use to be. You ask first. That was once the American spirit. Perhaps it can be again. If Roe indeed falls, as seems all the likelier now that the draft opinion is on view, that means the people, through their legislatures, regain the right to weigh in on the value of unborn life.
Pace the New York Times columnist Bret Stephens (May 3) the human life question isn’t a constitutional question compelling acquiescence in “established laws and common expectations,” thus compelling us to go along with a 49-year-old precedent. It’s a moral question: a moral-theological question of the kind that good citizens sort out in their hearts and minds. This they undertake through the democratic processes compromised or denied by hoity-toity jurists intent on retailoring, as they see it, frayed moral norms.
The sorting-out process will be uglier than necessary thanks to the Roe court’s gratuitous intervention, but it’s begun—the yelling, the placarding and blackguarding we saw on May 3 all over the country. One could wish that weren’t the case, but it is. Seven busybody jurists made it so. On with the show. On with—let us hope—the partial restoration of moral and democratic understandings too long trodden into the dust.