Towards a Culture of Life, Part 2

In Towards a Culture of Life, Part 1, I said I hoped for a new or recovered ethos in which human life, even unborn human life, would be held sacred. How do we get to that ethos? How do we scale that particular Mount Everest?

Having the Supreme Court overturn Roe v. Wade, it seems to me, amounts to no more than establishing a base camp on the lower slopes of the mountain. It's necessary, it's good — but it's not enough. From there, we have to actually lower the number of abortions, which may or may not be prohibited by law in the various states after Roe dies — if it dies. Ultimately, we have to change minds, hearts, and behaviors so that discretionary abortions on demand are no longer sought.

Quite a tall order.


Meanwhile, just gaining that Roe-less base camp will take a minor miracle. As Catholic ethicist George Weigel points out in this column from late 2004, the Supreme Court is not divided 5-4 in favor of letting Roe stand; it's divided 6-3. Only Justices Scalia and Thomas and Chief Justice Rehnquist can be counted on to overturn Roe. Even if Justice O'Connor's replacement is solidly anti-Roe, that only makes four votes in favor of overturning Roe and its follow-on, Casey v. Planned Parenthood, the case "which shifted the ground of the right [to have an abortion] from Roe’s 'privacy' to the Fourteenth Amendment’s 'liberty'."

To get to five votes against Roe, assuming an anti-Roe jurist replaces O'Connor, one of justices Breyer, Ginsburg, Kennedy, Souter, and Stevens would also have to retire and be succeeded by a justice who would overturn Roe. (And Rehnquist, if poor health ends his career, would have to receive an anti-Roe replacement.)

Moreover, a case which could conveivably be used to reverse Roe would have to find its way to the Supreme Court's docket. The docket for any current session is generally set at the end of the prior session. Then it can take up to a year for a case on the docket to be heard, and then an indeterminate time until it's decided.

Furthermore, Weigel says, there's no suitable case in the federal judicial "pipeline" even to be considered for the docket. It's not clear to me, no constitutional law scholar, what kind of case it could be, anyway. Who is entitled to sue on behalf of an unborn fetus whose life and liberty are threatened by legalized abortion?


Then there's the strategy question. Weigel is probably right to assume that Roe/Casey will have to be "hollowed out," to the extent possible, by means of state laws — clinic regulations, parental-notification statutes, informed-consent mandates, etc. — which circumscribe the availablity of abortions while not, in the eyes of the current Supreme Court, placing an "undue burden" on the supposed abortion "right" per se.

Weigel points out that Plessy v. Ferguson, the 1896 decision enshrining "separate but equal" treatment of Negroes and thwarting later civil rights advances, was never formally overturned — "it was gutted over time, in a series of cases, to the point where Brown v. Board of Education could administer the coup-de-grâce in 1954."

If the hollowing out process takes a lot of time, it may be years before Roe and Casey bite the dust. If they ever do.


If the states do regain the ability to outlaw abortion someday, it will be a sign that "base camp" has been reached, and all systems are go for an assault on "the peak." But at the end of the day, hearts and minds and the attitudes we take toward procreation, sex, and marriage will need to change. Then and only then can the "culture of life" pennant be planted proudly on the sacred mountaintop.

Overturning Roe and Casey, if it happens, would definitely get folks' attention. I'm hoping it would take our society to a "tipping point" such that a widespread embracing of a respect for human life becomes far easier than it has been for decades.

But resistance to the final tipping of this "tipping point" would be strong. What interests me even more than how this war can be won in a legal/constitutional sense is how it can be won in the hearts and minds of all of us.