More than sixty million abortions have been performed in America since Roe v. Wade was decided in 1973. Now, perhaps, the way is clear to stop the slaughter of the innocents. Justice Anthony Kennedy has announced his retirement. When it comes to engraving the sexual revolution into our basic law, Justice Kennedy has provided the key votes, and often the rationales. Now he is leaving.
I’m guardedly optimistic. In October 2016, in the final presidential debate, moderator Chris Wallace challenged Donald Trump: Did he want Roe to be overturned? Trump did not equivocate. “I am pro-life,” he said, “and I will be appointing pro-life judges.” Characteristically shunning the usual circumlocutions, Trump swatted away the legal complexities, saying that with one or two appointments of pro-life judges, overturning Roe “will happen automatically, in my opinion.”
Overly schematic, perhaps, but essentially true. Abortion has always been a moral issue, not a legal one. The Roe decision appealed to a mysterious constitutional right to privacy. The later Casey decision (1992), which cemented Roe into place, likewise appealed to mystery. As Justice Kennedy wrote in the majority opinion: “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.” But in each case, what actually drove the outcome was a concern about the equality of women. Why should women bear the burdensome consequences of the unwanted outcomes of sexual intercourse? This question had become especially pressing as no-fault divorce and the sexual revolution released men from any responsibility toward the women they might impregnate and the progeny they might sire.
Likewise, resistance to Roe’s abortion license has always had a moral basis. We have a large body of literature about the flimsy constitutional reasoning behind Roe. But there is plenty of shoddy reasoning in our legal regime. People protest in front of abortion clinics not because they are constitutional originalists, but because of the moral wrongness of abortion. In fact, the overwhelming majority of people who know the term “originalism” know it because of abortion. As a legal philosophy, originalism has captured the public imagination almost entirely because of its salience as a rationale for what is in essence a moral project: overturning Roe.
Legal scholars play an important role in maintaining the intellectual integrity of our legal system. We need legal coherence, and our judges should accept the discipline of close attention to the law as written and make their decisions under the proper authority of precedent. But abortion is not and never has been a strictly legal or even constitutional matter, in the way so many other high matters of legal debate are. Citizens United (2010), which judged restrictions on corporate donations to political campaigns a violation of free speech, remains a case that stirs passions among liberals. It was, perhaps, poorly decided. It may lead to bad consequences in our political system. But it does not touch upon the singular moral questions of life and death as Roe does.
Social progress does not come gradually. Pressure builds, unexpected events occur, free decisions are made—and what seems eternal suddenly dissolves, what seems fixed in place sheers away. Rachel MacNair notes in our pages that even as Roe has remained unaltered, attitudes toward abortion have changed a great deal over the decades. Many, perhaps most, who support Roe now avert their eyes from its reality. The glamor of evil has faded. In the popular imagination, abortion has become ugly. In these circumstances—our circumstances—a good appointment, moral clarity, and a smidge of courage can turn the Supreme Court.
The worst of the 1960s was actually the 1970s. In that decade, idealistic hedonism gave way to a hedonism that was cynical and me-centered. Roe was a landmark of that slouching decade, and it remains a stain on our national heritage, a festering wound in our body politic.
The time has come to cleanse that stain and heal that wound. Now is the time to demand that Trump remain true to his campaign promise. The next Justice of the Supreme Court needs to be unequivocally pro-life. Now is not the time for compromise or worries about breaking the peace that Roe has brought us. It was always a corrupt, immoral peace, which is not a peace worth preserving.
Let’s head into the nomination process for Justice Kennedy’s successor with the words of a former president in mind: “Yes we can.”