Lucy always pulls the football away from Charlie Brown, and the Supreme Court always steals victory from pro-lifers. Despite years of promises, Republican judicial appointees have yet to overturn, or even significantly restrain, the regime of abortion on demand established in 1973 by Roe v. Wade. The latest betrayal was by Chief Justice John Roberts, who abandoned his legal arguments of only a few years ago in order to strike down Louisiana abortion regulations.
In response, Missouri Republican Sen. Josh Hawley has declared he will “vote only for those Supreme Court nominees who have explicitly acknowledged that Roe v. Wade was wrongly decided.” This stance has produced a backlash, not only from abortion proponents, but also from abortion foes.
People I like and respect, such as Carrie Severino of the Judicial Crisis Network, have critiqued Hawley, suggesting his stance is impractical and intemperate. She prefers looking for originalist judges who have shown courage, even if they have not commented on Roe.
Severino is correct that courage matters and that past criticism of Roe is not dispositive for how a justice will rule on abortion cases. Furthermore, outspoken criticism of Roe will make the confirmation process more difficult in a narrowly divided Senate. Nonetheless, Hawley is right that it is time to insist on nominees who have clearly repudiated Roe. The benefits of keeping quiet are not worth the costs.
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Conservative Nominees Keep Quiet
After the smearing of Robert Bork, there were tactical reasons for potential nominees to keep a low profile, especially regarding Roe. But the demise of the judicial filibuster lowers the votes needed to confirm appointees from 60 to a bare majority. This reduces the need to conciliate abortion supporters in the Senate, a pragmatic necessity that exacted a toll over the decades.
Generations of conservative lawyers were trained to be stealth candidates for judicial appointments, signaling their loyalties without ever going on record with them. Roberts was the paragon of this sort of nominee.
Years of ducking controversy vitiates courage, so by the time they reach the bench, many ostensibly conservative lawyers have lost their principles, especially on controversial social issues. They see their role not as ruling based on the law and the Constitution, but as managing social conservatives’ surrender. Roberts is the prime example.
Even judicial nominees with more presumptive backbone appear furtive when they repeat that Roe is a settled precedent, even though everyone knows their supporters expect them to unsettle it. Nominees who take this approach seem duplicitous and ashamed of their conservative convictions. Opposition to Roe and the abortion regime it established seems like something that has to be smuggled into the federal judiciary, a dispiriting spectacle for pro-life voters.
Yet many Republican leaders prefer it this way. The GOP needs pro-life voters, but many party elites would like to give them little to nothing in return. Leaving the issue tied up in the courts allows them to forever promise to be pro-life without being held responsible for never delivering. Hawley’s pledge puts pressure on the rest of his party to take a stand, and then to produce results.
Conservatives Should Follow Hawley’s Lead
Hawley is also giving ambitious legal conservatives reasons to resist the prejudices of their peers. As he points out, “When justices enact their views, they inevitably enact the views of a certain social class.” Roberts’ concerns about the court’s legitimacy are driven by a very narrow slice of America, which is consequently able to bully him.
On abortion, as with so much else, the much-derided Georgetown cocktail parties should be taken seriously, though not literally; like everyone else, elite conservative lawyers crave the approval of their social and professional peers. It might not be a coincidence that the court’s staunchest originalist, Justice Clarence Thomas, grew up poor and spends his summers traveling the country in an RV.
The tactical benefits of conservative reticence on Roe have been tied to a strategic disaster: a legal culture in which the legitimacy and future longevity of Roe is presumed, especially in the elite legal circles in which conservative justices (present and future) work and live. Conservatives have a few legal groups, most notably the Federalist Society, which is still fairly heterogeneous. The left has the law schools, the journals, and most of the big law firms.
Lawyers who take an open stand against abortion receive quiet encouragement, and pro-life legal groups receive donations from closet pro-life lawyers. Lawyers who litigate against abortion are unemployable at most major law firms, however, and judges such as Bill Pryor, Kyle Duncan, and Matt Kacsmaryk are presumed to be unconfirmable to the Supreme Court.
Conservatives ought to follow Hawley’s example and change this by boldly standing against Roe, which is a legal and moral abomination. As Hawley put it, Roe is “an illegitimate decision. It has no basis in the Constitution. None. It has no basis in the law. … It is a brazen power grab by unelected justices imposing their moral and social views on the nation.”
He’s right. Upholding Roe and subsequent decisions such as Planned Parenthood v. Casey is not judicial restraint, but defiant support for a judicial coup.
Roe Hasn’t Solved Any of Our Problems
Worse still, this has been done to perpetrate crimes against humanity. Abortion is an atrocity, and we all know it. The ultrasound pictures we post on our fridges and Facebook condemn us for the violence we permit and commit against developing human lives.
As always, there are excuses and justifications. We are told abortion is necessary for equality, for self-determination, for protection against the unwelcome responsibility of caring for a child. Contraception is imperfect and imperfectly used, and people want their fun now without being stuck with a baby who changes their future plans. After all, the victims are very small, and we don’t have to see them.
Evil deeds, however, tend to poison the good we hope to gain by them. The devil might promise the world in exchange for our souls, but he aims to give us nothing but misery. Thus, abortion has failed to keep its promises and has even made things worse.
The apparent utility of abortion is deceptive. It makes death the solution to the problem of an unwanted human being, thereby corrupting and hardening hearts. Abortion breaks the fundamental bonds of society, violates our most basic duties to each other, and turns the most primordial human relationships into power struggles. It substitutes selfishness and violence for the love and responsibility that should characterize the union of man and woman and the begetting of new human life.
This is why Roe, and the tens of millions of abortions that followed it, have not solved any of our problems. Abortion makes us worse. It is a crime against humanity, sanctioned by our Supreme Court, which has removed it from the democratic process.
Against such evil, it is not enough to articulate general principles of constitutional theory. Roe must be condemned directly, on both legal and moral grounds. Overturning Roe will not end abortion, but it will at least allow the American people and their representatives to vote on whether to continue down the path to perdition.