Amy Coney Barrett’s confirmation process for the United States Supreme Court will be the most contentious political event of this century. The political right will sell its base the line that Barrett’s nomination will represent the nail in abortion’s coffin. The political left will sell its base the line that women will lose their most important right: the right to have an abortion. The result? Mutual unhinged and irrational hysteria by ill-informed political actors and their supporters.
Here’s a piece of reality. Even if Amy Coney Barrett is confirmed to the Supreme Court and it overrules Roe v. Wade and Planned Parenthood v. Casey, its decision will not spell the end of abortion in the United States.
Fundamental to both Roe and Casey‘s holdings is the principle that a state has a compelling interest in protecting life. Relying on its privacy precedents, the Supreme Court essentially established that an individual – male or female – has a non-absolute federal constitutional right to make medical decisions concerning his or her own body. To reconcile the state’s interest and the individual’s right, the Supreme Court made two attempts to establish some sort of constitutional criteria for when life can properly be said to begin, overruling its first attempt (Roe) in Casey.
The Supreme Court’s endeavor to determine when life can properly be said to begin is really an endeavor for all of us, not nine people clad with black robes. In other words, there is no constitutional criteria for when life begins.
The American people, however, don’t like dealing in non-absolutes. Their political parties have crafted an ill-informed narrative that the overruling of Roe and Casey would end abortion for good in the United States. Indeed, there are some conservative scholars who argue quite coherently for such an outcome as a matter of constitutional law. I, however, don’t see the overwhelming majority of the American legal community including Amy Coney Barrett adopting such a view, and I myself remain unpersuaded that such an absolute result would be consistent with the federal constitution. I am even more sure that such a view could not find five votes on the United States Supreme Court even if Barrett is confirmed.
Overruling Roe and Casey really restarts the endeavor of determining, as a society in the state legislative or state constitutional processes, where life can properly said to begin. Some states such as Alabama have already made that determination in anticipation of the hoped-for day when the Supreme Court overrules Roe and Casey. Most states have not made that hopeful determination. Consequently, our society would have to resolve that question with painful labor through the state legislative or constitutional processes, and, until that question is resolved by the states, abortion would likely remain legal as state executive branches are unlikely to spend the massive resources necessary to initiate and complete infanticide prosecutions under existing criminal procedures.
Rational assessments of reality, however, are politically inconvenient because they do not stir the intense passions necessary to compel people to part with their money and speak up on political issues. Political convenience requires all-or-nothing absolutes. Amy Coney Barrett’s confirmation process will be framed in all-or-nothing absolutes by both political sides with the primary issue being abortion. Unhinged and irrational hysteria will dominate. She’ll likely be confirmed, and the battle lines will reform on the next all-or-nothing absolute.
In conclusion, I am a Christian. I believe that life begins at the moment of conception and that abortion is murder. I don’t believe in any exceptions to that principle. At the same time as Saint Thomas Aquinas pointed out, religion and logic are not mutually exclusive. I am a thinker and a constitutional scholar. I have absolutely no delusions of finding a constitutional right to life for the unborn in the Fourteenth Amendment just as I think it is misguided to find that the Fourteenth Amendment’s protections for liberty guarantee a right to an abortion.
Where life begins is truly a legislative issue, and no amount of irrational or misguided hysteria will change that. If the future Justice Barrett and her colleagues vote to overrule Roe and Casey, their decision won’t end anything. It will simply return the issue to the states and, ultimately, the legislative process where it rightfully belongs.