When Justice Harry Blackmun and his Supreme Court colleagues delivered up Roe v. Wade 30 years ago, they seem to have believed that judicialization would tame the abortion controversy. Removing the debate from the heat of the political arena to the cool deliberation of the courtroom would clarify the issues and calm people down. The right to abort, the justices thought, was too important to be left to the politicians.
But those who contrived this little strategem failed to give an adequate accounting of the tiny creature who is the victim of abortion. That is why the abortion question remains as unsettled today as it was three decades ago. The Supreme Court’s abortion jurisprudence has been a powerful demonstration of judicial fiat; it has been utterly unavailing in its powers of persuasion.
Roe‘s legal logic works only if you don’t care whether the right to abortion is rooted in constitutional text or tradition. Its moral logic works only if you’re willing to pretend that the pregnant woman’s rights are the only thing in issue. Once the reality of the unborn child is admitted onto the legal stage, the pretense vanishes, and the woman’s claim to do as she likes must be offset by the claims of another.
Judges wishing to uphold the right to abortion have twisted themselves into pretzels to avoid addressing the obvious question: Who or what is killed during an abortion? Judges fall back on terms like “reproductive material,” “conceptus,” “the products of conception,” or (in later stages of pregnancy) “fetus.” But the use of clinical terminology to dehumanize the unborn child cannot alter the moral character of the deed that ends its life.
Thirty-three years ago, the editors of California Medicine, the journal of the California Medical Association, brilliantly described the psychology of pro-abortion rhetoric. In a much-quoted editorial, they discussed the erosion of the old Judeo-Christian medical ethic and its displacement by a new ethos dominated by utilitarian considerations. Nowhere was this transition more apparent, the editors suggested, than on the question of abortion:
Since the old ethic has not yet been fully displaced, it has been necessary to separate the idea of abortion from the idea of killing, which continues to be socially abhorrent. The result has been a curious avoidance of scientific fact, which everyone really knows, that human life begins at conception and is continuous whether intra- or extra-uterine until death. The very considerable semantic gymnastics which are required to rationalize abortion as anything but taking a human life would be ludicrous if they were not often put forth under socially impeccable auspices.
Although the editorial appeared nearly three years before Roe v. Wade, it perfectly anticipated Harry Blackmun’s semantic gymnastics, which have dominated judicial consideration of the problem ever since. Like those who praised the emperor’s storied new clothes, sophisticated thinkers quickly applauded Roe‘s curious denial of a universally known reality. But that can go on only so long.
No pregnant woman who intends to bear her child will ever tell her friends that she is carrying a “conceptus” or a “fetus.” She will tell them—and anyone else who cares to listen—that she is going to have “a baby.” That is the way women have talked since the beginning of time and, one supposes, that is how most of them will talk until the human race is no more. Because they will continue to talk that way, legalizing abortion will always remain a volatile and divisive issue, no matter what the courts say. As philosopher J. Budziszewski argues in his most recent book, there are certain things “we can’t not know.”
True, facts have never fully controlled the abortion controversy. Yet they remain stubborn obstacles to abortion advocates. Although available biological evidence failed to instruct or to move six justices in 1973, prenatal technology has grown by leaps and bounds in the interim. Today, we have (among other demonstrations) the remarkable 3-D/4-D sonograms that dramatically confirm the palpable personality of the unborn child (see the December 2002 CRISIS). The courts may yet cling to Roe‘s outmoded and altogether unsatisfactory reasoning, but in the face of such new evidence, they cannot do so forever.