Roe v. Wade Reconsidered

The Supreme Court’s decision to hear an appeal from Mississippi’s restrictive abortion law raises questions and concerns related to the longstanding desire among conservative justices, politicians, and religious groups to overturn the Court’s 1973 Roe v. Wade opinion. That opinion constrained the power of States to infringe upon a woman’s due-process “right” to choose abortion. Reconsideration of Roe by the Court’s present “conservative” majority could upend nearly fifty years of deftly circumscribed individual liberty by granting States greater latitude—as Mississippi’s attorneys assert—to “promote women’s health and preserve the dignity and sanctity of life” by restricting abortion beyond present limits.

The Court once again will pit the legal rule of stare decisis against jurisprudential and moral claims that Roe was falsely reasoned and wrongly decided. Two opposing concepts of individual liberty are at issue: (i) former Justice Kennedy’s obliquely classical-liberal dictum in Planned Parenthood v. Casey, 505 U.S. 833, 851 (1992): “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”; and (ii) conservative Justice Barrett’s curiously progressive characterization of aborted fetuses as “unborn victims.”

The Court consistently has held that Roe is settled law; ergo no compelling reason exists for overturning it. The Casey opinion further noted the Court’s holding in Roe is consistent with related opinions that afford “constitutional protection to personal decisions relating to protecting the inherent liberties of marriage, procreation, contraception, family relationships, child-rearing, and education.” Conservative justices add, however, that abortion cannot be a constitutionally protected liberty because (i) neither the Constitution nor the 14^th Amendment mentions it, and (ii) longstanding State laws and traditions specifically prohibited it. By this test, a democratic majority (or plurality) of State voters retain the power to set limits on abortion.

The late legal scholar and federal appellate judge Robert Bork disparaged Justice Kennedy’s “heart of liberty” dictum as being indicative of airy “New Age jurisprudence.” Yet, Bork also conceded that political majorities govern in such matters for no better reason than that they happen to be majorities. The law-and-economics scholar, and co-founder (with Nobelist James Buchanan) of economics’ Public Choice program, skeptically wondered why individuals—whether behind or before a Rawlsian veil of ignorance—would either choose or consent to have the most intimate and consequential choices of their lives controlled by a majority of strangers who lack a material stake in the outcome of their votes.

Mississippi’s assertion that its abortion restrictions “preserve the dignity and sanctity of life” smacks of political opportunism wrapped in moral certitude. Anti-abortion sentiments often are grounded upon theological values; here, by comparison, they are characterized as being purely secular values. If theological, then Mississippi’s law could be judged unconstitutional under prevailing 1^st Amendment theory and doctrine, which prohibits Congress and States from enacting laws respecting the establishment and practice of religion. Constitutional protection does not apply if “the dignity and sanctity of life” are merely secular values.

Consider, however, that theological and secular moral values are merely alternative, interchangeable kernels around which self-interested social and political factions form. The Court’s “establishment” and “practice” opinions presently are predicated on the view, as expressed in Wallace v. Jaffree, 472 U.S. 38, 53–54 (1989), that “religious beliefs worthy of respect are the product of free and voluntary choice by the faithful.” Voluntary secular religious beliefs and values, like their theological counterparts, are worthy of respect. However, the involuntary imposition of secular-religious values upon opposed minorities is not. No principled basis exists for distinguishing between theological and secular moral dogma. Both forms are innately religious, and both undermine protected rights and liberties.

Lest the concept of “secular religion” be mistaken for solecism, consider theologian Paul Tillich’s observation, in Systematic Theology: Reason and Revelation, Being and God (1973, I:221), that everything secular can enter the realm of the holy and that the holy can be secularized. On one hand, this means that secular things, events, and realms can become matters of ultimate concern, [i.e., they can] become divine powers; and, on the other hand, this means that divine powers can be reduced to secular objects, [and so can] lose their religious character. Both types of movements can be observed throughout the entire history of religion and culture, which indicates that there is an essential unity of the holy and the secular, in spite of their existential separation.

Consider also economist Robert Nelson’s conclusion, in The New Holy Wars: Economic Religion vs. Environmental Religion in Contemporary America (2010, 348–349), that “the leading secular movements of our times are essentially religious in character, drawing on the various Christian traditions that produced Western Civilization. … It is time to take secular religion seriously. It is real religion. In the twentieth century, it showed greater energy, won more converts, and had more impact on the Western world than the traditional institutional forms of Christianity.” These points weigh heavily upon the abortion question.

The 1^st Amendment protects not only religious liberty against infringement, but also the closely related liberties of speech, press, and assembly. The Court held in Gitlow v. New York, 208 U.S. 652, 666 (1925) that the “freedom of speech and of the press—which is protected by the 1^st Amendment from abridgment by Congress—are among the fundamental personal rights and liberties protected by the due process clause of the 14^th Amendment from impairment by the states.” Extending this doctrine to encompass the 1^st Amendment’s religious clauses would provide a settled constitutional basis for protecting individuals against the coercive imposition of all moral religious dogma, regardless of its origin.

If the Court were to adopt this reasoning, then it’s holding in Roe could be preserved, States could retain jurisdiction over legitimate health concerns, and at least some objections to Roe’s legal reasoning could be mitigated. Otherwise, the jurisprudential foundations of the Court’s opinions regarding the constitutional status of theological religion must be questioned.

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