As one reads the latest chapter in the horror novel that is the Supreme Court’s abortion jurisprudence, one is reminded of Ronald Reagan’s famous line in his 1980 presidential debate against Jimmy Carter: “There you go again.” Just as Reagan’s opponent deliberately distorted the record to appeal to his listeners’ subrational drives, so the Court in its Hellerstedt decision peddles the abortion industry’s tactics of disinformation and appeal to Americans’ passions, interests, and prejudices.
The Court argues that the two challenged portions of Texas H.B. 2, which require that abortion providers have admitting privileges to nearby hospitals and abortion facilities maintain the safety standards of ambulatory surgical centers, violate the Constitution. After a long-winded attempt to persuade us that the pro-abortion activists’ suit is not precluded by res judicata—the legal doctrine that is supposed to prevent sore losers from re-litigating ad infinitum—the Court arrives at the substance of its decision. The Court contends that neither requirement advances the state’s legitimate interest in women’s health, but that they unduly burden access to abortion by causing the closure of several abortion facilities.
Both of these contentions are false. The Court presents no new arguments or evidence in favor of its contentions. The Court does little more than repackage the District Court’s arguments. But it does add one rather dull bit of ribbon to the wrapping when it invokes “common sense” to argue against the dissent’s carefully reasoned suggestion that the nine abortion mega-facilities currently operative in Texas would have the capacity to provide abortions at the current average rate.
Appealing Not to Common Sense, But to Fear
We are a long way from what Alexander Hamilton referred to in The Federalist as the “natural and unsophisticated dictates of common sense.”
As Hamilton points out, in disquisitions of all kinds there are first principles from which follow conclusions that command assent, which are blocked in the subject only from some bodily dysfunction or by some strong passion, interest, or prejudice. Common-sense morality, then, includes the first principles of natural law and their immediate corollaries. This view of common sense animated the Hippocratic Oath, which enjoined the first principles of benefitting patients and doing no harm, followed by specific corollaries, such as refusing to perform abortions. It was this classic notion of common sense that animated the majority of democratically elected representatives in Texas when they acted on their publicly stated belief that requiring higher standards of care furthered its legitimate interest in women’s health and the well-being of the unborn.
Our Constitution decrees that the legislature holds the power and responsibility to translate moral first principles into positive law. Unfortunately, the current Court has arrogated the office of legislation under the guise of interpretation and masquerades its passion, prejudice, and interest as “common sense.”
In its appeal to the passion of fear, the Court imitates the industry for which it seeks to provide legal cover. Abortion profiteers trade on men’s and women’s fears about having children. “You will never graduate from college if you have this child.” “Your parents are going to be so mad at you.” “You cannot afford to have a baby right now.” “He will never love you if you carry it to term.” So the Court: Texas will make you travel long distances to facilities that are crammed to capacity.
But Texas does no such thing. It is abortion providers themselves who are refusing to upgrade their facilities or build more facilities that are up to par.
Appeals to Financial Interest and Prejudice
Following its appeal to fear, the majority makes its appeal to interest. Justices Breyer, Kagan, Sotomayor, Kennedy, and Ginsburg signed onto an opinion that cites the cost of compliance as a reason to rule against the common sense of the people of Texas. These justices have made it clear that they have adopted the financial interests of the abortion industry as their own. But even if we accepted that the profit margin of one of the parties to a case like this is a reason to rule in their favor, the simple fact is that the abortion industry, subsidized by taxpayer dollars, is millions of dollars in the black already.
The majority’s prejudice then comes out in a most striking way. They cite the Kermit Gosnell scandal—the abortion house of horrors—as an episode that Texas legislators might reasonably have wanted to forestall occurring in their own state. The liberal wing of the Court then says: “there is no reason to believe that an extra layer of regulation would have affected [Gosnell’s] behavior.”
The wing of the Court that would twist the Constitution and statutory law into origamis in order to justify behavior-altering state regulations of healthcare, power plants, marijuana, firearms, marriage, and campaign finance (to name just a handful) now downplays the force of law to alter human behavior. But it would be wrong to say that the majority is being disingenuous. Rather, I submit that they are so deeply prejudiced in their belief that abortion is a positive good for women, that they must see the Gosnell episode as anomalous and look askance at any state regulation in this area. Perhaps, as Justice Thomas’s dissent suggests, this case is a signal that a stricter scrutiny standard à la Roe will be in an ascendant liberal majority’s future.
Make no mistake: this is a significant setback for women and the unborn. Similar regulations across the states will fall. This is the green light given by Justice Ginsburg’s concurrence.
My Generation Must End Abortion
In a 1984 presidential debate against Walter Mondale, Ronald Reagan delivered another famous zinger. After it was suggested that he was getting too old for the presidency, he responded, “I will not make age an issue of this campaign. I am not going to exploit, for political purposes, my opponent’s youth and inexperience.” He went on to make a less-remembered comment: that the elders in a polity must correct the mistakes of the young.
On the issue of abortion, the opposite is true. The young have inherited a legal and cultural regime stained with the blood of sixty million unborn children. It is up to them to correct the mistakes of their elders. There are signs to give us hope that my generation is up to the task. In the short term, we must continue to offer compassionate alternatives to abortion. When faced with legal setbacks, we also do well to acknowledge the limitations of law. While we must surely continue to fight for sound public policy and constitutional interpretation, we also need to confront the cultural fear at the root of abortion.
Love is the cause of fear, because fear is a movement of the appetite away from some future object that is considered to be an evil, and such perceived evils can only be understood in relation to beloved goods we have (and don’t want to lose) or goods we hope for (and don’t want to despair of). We therefore need to recover an understanding of an order of love, where the final cause of love is not the self. This is the root cause of the fear of having children: disordered self-love. The only lasting remedy will be a renewal of the idea of love as gift of self. Renewal of this understanding of love will not come from the legislative pen, but from the witness of how we choose to live in our homes, families, churches, and communities. This is how my generation will end abortion.