The pro-life legal strategy has wrongly aimed to make the question of abortion determinable by the democratic process within the states. It is now evident that the pro-life legal movement suffers from a deep ambiguity in its opposition towards Roe v. Wade: Do pro-lifers object to Roe because it violated a fundamental and non-negotiable precept of the natural law? Or do they object because it was decided undemocratically by the Supreme Court, rather than left to the democratic decisions of the individual states?
I’ve argued in the Church Life Journal, in “Abortion Tests the Limits of Liberalism,” that we should object to abortion because it violates the natural law. Writing here in the Catholic Herald, in an article titled “The Illiberal Project Will Fail,” Fr James Rooney, OP, disagreed.
Fr Rooney and Justice Scalia Disagree
He drew several objections to my argument, and made a number of unfortunate caricatures that I must pass over, for reasons of space. But I would like to highlight a couple of central points here.
Writing in First Things, the philosopher John Finnis argued that the Supreme Court should not only reverse Roe v. Wade, but rule abortion to be unconstitutional, according to an originalist interpretation of the personhood clause of the 14th amendment. Such a ruling would take all the power of settling the question of abortion out of the hands of the states and their democratic processes. A controversy followed.
The pro-life legal strategy to date ultimately hails from Justice Antonin Scalia’s dissent in Planned Parenthood v. Casey, where he asserted: “The States may, if they wish, permit abortion on demand, but the Constitution does not require them to do so. The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.”
In other words, Scalia — and pro-lifers after him — thought that abortion was wrongly decided by the Court. Consequently, the goals of pro-life strategy have been limited to undoing Roe v. Wade and returning the question of abortion to the democratic process of the states. The legal approach to abortion appears to have little to do with whether abortion in itself is morally wrong. It is limited to a question of democratic procedure.
Abortion is Unconstitutional
John Finnis is right: Abortion should be declared unconstitutional, independently of the democratic process. But not for the reasons he proposes. Abortion should be declared unconstitutional because it is simply contrary to the natural law. No amount of democratic negotiation should be allowed to decide otherwise.
At this point, Fr. Rooney’s criticisms become relevant. First of all, he failed to address the authority of John Paul II in this question. The teaching of the pope on this matter is clearly stated in Evangelium Vitae: In politics and government, ”the original and inalienable right to life is questioned or denied on the basis of a parliamentary vote or the will of one part of the people — even if it is the majority.”
This, he continued, “is the sinister result of a relativism which reigns unopposed: the “right” ceases to be such, because it is no longer firmly founded on 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.”
John Paul’s words do not strictly apply to Roe v. Wade, but they do apply to the approach of pro-life advocates who seek to allow individual states to decide the question of abortion democratically. Fr. Rooney writes that “the strongest case to be made against Roe v. Wade is that it was a highly illiberal decision. The reason for the embittered fights in the US over abortion is precisely because a group imposed, by undemocratic means, a significant culturally-loaded piece of legislation through a court decision and not through liberal democratic processes.”
This misses the entire point: Roe v. Wade was a bad decision not because it was illiberal or undemocratic, but because it contradicted the natural law and condoned the slaughter of millions of unborn children. It would be no improvement on Roe to allow the same decision to have been reached democratically.
A Greater Evil Than Abortion
When Fr. Rooney writes the following, I would respectfully suggest that he (perhaps inadvertently) runs afoul of the teaching of John Paul II: “The claim appears to be that a regime should have political or legal mechanisms that do not allow legislation contrary to the right moral norms. I find this puzzling: while I agree a constitution should not be amended to allow abortions, I don’t quite see how we could implement a legal mechanism for making it impossible to do so without seriously bad consequences.”
In other words: undemocratic authoritarianism, even regarding just the issue of abortion, is a greater evil than abortion itself. Abortion, though evil, may be tolerated for the sake of preserving liberal democracy.
But according to John Paul II, such an approach tragically confuses moral priorities. The question of abortion should not even be on the table for democratic debate. It should be constitutionally not an option. To let it be decided by the democratic process is to reopen the door to a deadly form of relativism and totalitarianism that pays no respect to the dignity of human life.
Such a democracy would in fact be a greater evil than the “authoritarianism” that condemned abortion absolutely and irrevocably. As I said at the end of my article, democracy is simply not worth the unborn lives who might be lost because of it.
The Correct Goal
What then should be the correct goal of pro-life activism? Finnis’ relatively modest proposal is a good place to start.
Adrian Vermeule, of Harvard Law School, has proposed a broader model of “common-good constitutionalism,” In this approach, “just authority in rulers can be exercised for the good of subjects, if necessary even against the subjects’ own perceptions of what is best for them — perceptions that may change over time anyway, as the law teaches, habituates, and re-forms them.” His more scholarly writing lays out more concrete options that would be necessary for common-good constitutionalism to truly take effect.
Pro-life activism cannot be separated from these larger, long-term goals of constitutional reform. These goals can generally be described as the re-inscription of the natural law into the effective constitution of a given regime, and the explicit reorientation of that regime towards the common good.
Liberalism purports to aim only at the maximization of individual rights and liberties, a goal that is nebulous enough to warrant highly divergent moral interpretations, due to the variable preferences of men. Fr. Rooney is right to point out that liberalism is not exactly “amoral,” but the morality of liberalism is liable to change (as indeed it has), since the rights of individuals serve as no stable measure of morality absent the unswerving standard of the natural law.
The Church’s Approach
Nor is such an approach naive, for it is the approach taken by the Church herself, as is abundantly clear from the teaching of Evangelium Vitae. The proponents of such an approach need not expect, as Fr Rooney seems to think we do, that “their friends will be the ones in charge” anytime soon. They are, however, required to hope that the Christ will one day be universally acknowledged as King over all society.
Fr Rooney is right that this is highly improbable. That doesn’t matter. The Church always takes a much longer view of the direction of history than any human eye could see: faith motivates us to work tirelessly for the construction of the kingdom of God on earth, even if such a goal lies beyond all visible horizons.
Jonathan Culbreath is a graduate of Thomas Aquinas College and has studied philosophy at the University of Leuven in Belgium. He currently teaches at a Catholic high school in southern California. He also serves as an assistant editor for The Josias, a site dedicated to Catholic Social Teaching.
The picture is of the Battle of Naseby in 1645, from an engraving by E Radclyffe after P G Cattermole. (Photo by Hulton Archive/Getty Images)