Is This the Last Anti-Roe v. Wade Protest?

During the weekend of 21-23 January, defenders of unborn human life will make their annual trek to Washington D.C. to express their opposition to Roe v. Wade, the 1973 Supreme Court decision that struck down States’ laws restricting or reasonably regulating abortion. Unlike the prior 47 years, however, this year’s National March for Life will be invigorated by a realistic hope that it will be the last. In oral argument for the December 2021 Supreme Court case, Dobbs v. Jackson Women’s Health Organization, a majority of the nine justices seemed inclined to strictly limit the scope of Roe if not vacate it altogether. 

This would be a sea change in American abortion law. Since Roe, States have been consistently frustrated in their attempts to pass legislation protecting unborn life, despite the will of overwhelming majorities of the populations and legislative assemblies of those States. Nor, under the subsequent 1993 case, Planned Parenthood of Pennsylvania v. Casey, have States even been able to pass reasonable restrictions on abortion if those restrictions violated the highly malleable and impossibly vague standard of “undue burden” on the woman seeking the abortion. Dobbs may put an end both to the extreme implications of Roe and the irrational standard of Casey.

But while reversing Roe would signal the end of the National March for Life, it would spawn annual rallies in the capital cities of all 50 U.S. States. This is because a reversal of Roe would send the issue of abortion access and restriction back to the Sates, where rigorous public-policy debate belongs, and which the Roe court usurped in 1973. Many States, including California, New York, and Illinois, will replace Roe’s protection of abortion access with their own laws, essentially replicating the abortion-on-demand regime of Roe. Others, such as Ohio, Texas, and Mississippi, will implement or enforce strong protections of unborn life, possibly with some narrowly-drafted exceptions. Activists on both sides, of course, will marshal resources either to preserve or reverse these laws.

This is an excellent opportunity for Catholic defenders of unborn human life to re-examine the language we use to express our moral opposition to abortion. By and large we Catholic opponents of abortion have adopted the same moral framework as the pro-abortion camp. Both sides express their positions in terms of individual “rights,” broadly understood as private assertions of claims against everyone else. Thus, abortion proponents claim the “right” to privacy and bodily autonomy; abortion opponents assert the “right” to life of the developing child. In using this language, abortion opponents set themselves up to lose the moral argument, because it assumes a foundation more suited to pro-abortion advocates.

Individual “rights” language is born of, and probably inseparable from, a moral anthropology in which all moral decisions are privatized, and in which moral deliberation fails to consider the good of the other. And it offers no rational principle to adjudicate between competing rights claims.

While this is a rough-and-ready description, rights language springs from a subjectivist moral foundation that is more consistent with the claims of bodily autonomy that underwrite abortion than it is with arguments against it. Rights language is more likely to undercut anti-abortion arguments than it is to support them. Assertions of individual rights, whether claimed on behalf of a pregnant woman or the child in her womb, are rooted in a highly individualist, atomistic, and privatized theory of morality. Thus, when it comes down to competing private claims (the lingua franca of the abortion debate), rights language is conducive to the pro-abortion argument and corrosive of the pro-life position. By adopting this language, we lose the particular moral argument about abortion before it even begins.

As Catholic Christians, we have a richer, more hopeful moral language upon which to draw. Rooted in a tradition of justice and common good, this is a language that begins with the natural social nature of the human person and, thus, the social nature of all moral decision making. Rather than individual rights, we should frame the moral argument in terms of social justice. Related to abortion, the principle is that it is unjust to form the intention to take, and to take, an innocent human life. The corollary is that we have an obligation to uphold the justice of protecting innocent human life (and to oppose taking that life), for the good of all persons. Thinking this way shifts the onus to those who would make an exception to the principle, forcing abortion proponents to “defend” injustice. 

In contrast if we assume the language of competing individual rights, we abortion opponents are always on the back foot, having to explain why the principle of bodily autonomy should be suspended. If Roe v. Wade is vacated, it’s not enough to celebrate a legal triumph. We must re-assess our own arguments so that we can begin to take the offensive for a moral victory, and thus offer a more persuasive case against killing unborn human beings.