The oral argument yesterday morning in the Dobbs case on abortion was not exactly a moment to celebrate for either side. One side, we might say, was “morally challenged” or imbecilic, and the other side wasn’t sure just which fork to use. The liberal side, as ever, could not explain what was “justified” in the guideline of viability, just as it couldn’t explain why the decision in Roe was justified in the first place: Why exactly was it wrong for the laws to cast their protection over small human lives, vibrant and growing in the womb?
But on the other side, the redoubtable Scott Stewart, the solicitor general of Mississippi, was compelled to argue with one hand tied behind him. As smart and resilient a lawyer as he is, he was compelled to work within the standard forms of conservative jurisprudence, repeating the mantra of “text, structure and history.” But those tests do not supply the standards of judgment that explain why Mississippi's law banning abortion after 15 weeks was justified. And so the style of the argument was to keep steering around the question of moral substance. Hence Stewart’s response when Justice Thomas led with the question of whether the constitutional ground for the right to abortion rested on the notions of “privacy” and “autonomy.” The most apt, common-sense response would have been that marked by Lincoln and Aquinas: that there can never be a “right to do a wrong.” Whenever we consider privacy, autonomy, or “liberty,” we must ask whether they are put in the service of ends rightful or wrongful. No notion of privacy, autonomy, or liberty ever entailed a right to take an innocent human life. But Stewart, playing by the book, simply argued that these terms had not been recognized in our history or tradition: “each of those [claims] starts to become a step removed from what's provided in the Constitution. Yes, the Constitution does provide certain—protect certain aspects of privacy, of autonomy, and the like, but [this right] is not how we traditionally, this Court traditionally, does due process analysis.”
Central to the case is the question of whether the Mississippi law was unconstitutional because it barred abortion at 15 weeks, before “viability.” Viability may set in around 24 weeks, but Chief Justice Roberts and Justice Alito pressed on the question of what gave that marker any moral significance. As Justice Alito said, if a woman has a right to rid herself of the pregnancy she believes to be encumbering her life, why would it make a difference if the child in the womb were larger and stronger? And on the other side, if the law protects human life, why should it not also protect the small life in the womb that has never been anything less than human from its first moments? There one came to the edge of the argument that should clear heads and dissolve perplexities on both sides: It cannot be tenable to say that any human being loses his claim to the protection of the law, or his standing as a rights-bearing being, when he suddenly becomes weak and infirm and needs the help of others. To deny that proposition is to back into nothing less than the Rule of the Strong or Might Makes Right. That argument runs back to texts old and widely taught, from classic philosophy and the Bible. It is unthinkable that the lawyers and judges on either side have never heard that classic teaching. The question then is why these accomplished people on either side feel constrained not to invoke this common-sense axiom of moral reasoning.
Justice Sotomayor exceeded herself in the string of fallacies she was able to put together in just one case. No, Justice Sotomayor, Chief Justice Marshall never claimed in Marbury v. Madison that judges alone, among the officers in the government, have an obligation to consider whether the measures coming under their hand for judgment, whether bills or statutes, are compatible with the “fundamental law” of the Constitution. Nor did he ever claim that the Court is the Final authority on any of these questions. The scholar Louis Fisher has shown what a false claim that is in his compelling book, Reconsidering Judicial Finality.
And no, Justice Sotomayor, it is not at all true that fetuses cannot feel pain before there is a developed cortex. That claim was exploded 36 years ago in the hearings before the Senate Judiciary Committee on “fetal pain.” Professor Daniel Robinson, a highly published figure in the neural sciences, made one doctor from the Yale School of Medicine retreat from the claim that fetuses cannot feel pain before 12 weeks of gestation. As Robinson noted, “pain is surely one of the most primitive of sensations found in the animal kingdom,” and it does not depend on the “cerebral cortex.” The “specific pathways carrying ‘pain’ information,” he said, are all “subcortical.” He recalled the cases of brain cancers in which “an entire hemisphere is removed. Hemicortectomized human patients do not lose pain sensation. The thesis that there is some connection between cortical functioning and pain is simply naïve.” The reaction to pain, as he said, was reflexive; it was not “syllogistic in nature.”
Nor have seasons of scholarship and moral reflection managed to divert Sotomayor from using the emptiest cliché in the arguments over abortion: that the beginning of human life must ever be a “religious” question. The Senate Judiciary Committee, in those same hearings in the ’80s, took a survey of the leading textbooks on embryology and obstetric gynecology, and found no scientific disagreement on the beginning of human life. About 10 years ago, Ryan Anderson took another survey that showed that the scientific consensus remained unimpaired: Human life begins with the merging of a male and female gamete to form an entirely new being—which is to say, at conception. If there is a pregnancy, there must be something growing in the womb. The creature must then be “living”; if not, an abortion is no more relevant than a tonsillectomy. And if it is a live, growing thing, there can be no question of its species. It can be nothing other than a small human being from its first moments as a zygote—no larger, as we used to say, than the period at the end of this sentence.
One expected General Stewart to reply to Justice Sotomayor's challenge simply by appealing to these unimpeachable secular sources, in the medical texbooks, to remind us that the beginning of human life is not an inscrutable “religious” question. And yet General Stewart, for some reason, did not take that path. He conceded to Justice Sotomayor that this is one of those baffling questions, stirring heated arguments: “They're hard, they've been debated, they're important, and these are all reasons to return this to the people because the people should get to debate these hard issues.”
I know Scott Stewart for the remarkable person and lawyer he is. But he was arguing under the constraints of conservative jurisprudence (“text, structure, history”). And in that mode, he steered around the questions of moral substance. Those were to be left to the moral judgments of people in the separate states. But a Court that sends things back to the states in that way, without saying anything on the question of moral substance, is a Court that will leave us with no coherent sense of what this warring argument over 50 years has really been about.
My own guess is that the conservative majority on the Court will find some way of sustaining the law in Mississippi. They may even summon the nerve to overturn Roe v. Wade altogether. But if so, it will confirm the worst clichés, believed by the left and resisted by the conservatives: that the reasoning of jurisprudence is essentially beside the point. For reasons of their own, the judges will do what they wish to do.
Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College and the Founder/Director of the James Wilson Institute on Natural Rights & the American Founding in Washington, D.C.
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