Decided in an era when Supreme Court Justices were rationalizing their decisions by searching “penumbras” that were “formed by emanations from” explicit constitutional guarantees, the 1973 decision in Roe v. Wade created a constitutional barrier to state action to protect human life. We can envision the Roe majority not in conference but in séance, searching penumbras and emanations to locate a basis for their decision. Not all Justices were impressed when the decision issued, a disquiet shared by some of their successors. Years later Justice Clarence Thomas would hang a sign in his chambers: “Please don’t emanate in the penumbras.” And the search goes on. Is that right to abortion based on privacy? Equal protection? Gender equality? Liberty? Autonomy? Something else? After all, penumbras by definition are only partially illuminated; they are shadowed and shady. The best explanation continues to be that of Justice Byron White in dissent: the establishment of a constitutional right to abortion was no more than “an exercise of raw judicial power, … an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.”

A slightly different way to view the underlying basis for Roe is through the lens of the 1992 decision in Planned Parenthood v. Casey which reasoned that the right to abort a child sprung from the “the liberty protected by the Fourteenth Amendment.” And, “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.” That statement, of course, has been widely mocked, notably by Justice Antonin Scalia who said the “famed sweet-mystery-of-life passage” may be “the passage that ate the rule of law.” Indeed, the majority’s position in Casey is self-damning. Seen through the lens of Casey, the constitutional right to abortion is no more than the majority of the Court defining and imposing its own concept of meaning on the Constitution—truth and reality be damned. It is consistent with Justice William O. Douglas’s autobiography in which he confected a life he had not lived. Douglas of course was the first to discover penumbras and emanations when he wrote the 1965 decision in Griswold v. Connecticut holding that a constitutional right to privacy forbids state bans on contraception, and he was in the majority in Roe. Although viewing Roe through the lens of Casey provides a different perspective, ultimately it leads to and reinforces Justice White’s insight: the imposition of a constitutional right to abortion was no more than “an exercise of raw judicial power.”

In the immediate aftermath of Roe v. Wade, I was a law clerk to a federal district court judge in Boston. A naturalized citizen born in Italy, he was a practicing Catholic. He was assigned to a three judge panel hearing a case filed by Bill Baird challenging a Massachusetts statute requiring parental consent for an abortion on a minor. The appellate judge on the panel was a Boston Brahmin, who the Associated Press once noted was “a member of one of America’s old, wealthy families.” The other district court judge was Jewish, a former mayor. From the moment the panel was named, the attorneys for the parties likely realized what the vote would be. In chambers, the only question was whether there would even be a trial. The other two judges wanted to rule on the filings without testimony, but relented after my judge threatened a scathing dissent if they did so.

On the first day of the trial, the other two judges and their law clerks were already in the vesting room when my judge entered with me carrying his robe. Uncharacteristically, the three judges immediately went at each other sharply before realizing the law clerks were still present and excusing us. During trial a law clerk for the other district judge was recused when his hallway discussions with counsel for the plaintiffs led to a job offer. After trial, the court issued its 2-1 ruling enjoining enforcement of the statute, but the dissent was based on a fuller record than would have existed in a summary proceeding. The case later resulted in two Supreme Court decisions.

On December 1, 2021 the Supreme Court heard argument in Dobbs v. Jackson Women’s Health Organization, the case challenging Mississippi’s ban on abortions after 15 weeks’ gestation. Assuming the Court followed its usual practice, the Justices then met two days later to reach a preliminary decision about its outcome. Before the Court issued its procedural ruling on December 10 in Whole Woman’s Health v. Jackson, the challenge to Texas’ statute that prohibits abortion after a fetal heartbeat is detected, the Justices knew with almost complete certainty what the ruling on the merits in Dobbs will be (though there’s always a possibility that a Justice’s vote could change as they draft opinions). The opinions in Whole Woman’s Health therefore provide a window into what will occur in Dobbs, especially when coupled with the statements of the Justices at oral argument in Dobbs.

In broad terms, Dobbs could reaffirm Roe, overturn it, or limit its application. Mississippi has asked the Court to overturn Roe, but if that is not done, to uphold its ban on abortions after 15 weeks of pregnancy, which would limit Roe and perhaps green-light other limitations

What is abortion and why should it be banned or limited? The answer is straightforward, but hardly ever mentioned. Abortion is the direct intended killing of a human being in the womb. Abortion is murder in the womb. Why is this obscured? Why the obfuscation?

President Joe Biden, for example, says “I respect them, those who believe life begins at the moment of conception and all, I respect that. Don’t agree, but I respect that.” Why do you disagree, Joe? When does a human life begin if not at the moment of conception when 23 chromosomes from a man’s sperm and 23 chromosomes from a woman’s egg unite? That union results in a living human being—a human who exists, who has being. There is no other marker for the beginning of a human life, no other point where something that is not a human being suddenly becomes one.

Similarly, while questioning the Solicitor General of Mississippi during oral argument in Dobbs, Justice Sonia Sotomayor called the question of when a life begins a religious issue:
“The issue of when life begins has been hotly debated by philosophers since the beginning of time. It’s still debated in religions. So, when you say this is the only right that takes away from the state the ability to protect a life, that’s a religious view, isn’t it, because it assumes that a fetus’s life at—when? You’re not drawing—you’re— when do you suggest we begin that life? Putting it aside from religion.”

When do you say a human life begins, Justice Sotomayor? What’s religion or philosophy got to do with that question? Hasn’t science established that it begins at conception? Barack Obama famously smirked that the answer’s “above my pay grade.” Are you too pleading ignorance?

Though no one can validly dispute the science on when a human life begins, religions differ on whether the child in the womb may be killed. This was captured vividly when Sarah Marian Seltzer, executive editor of Lilith Magazine, recently tweeted “a friendly reminder that banning abortion violates Jewish women’s ability to practice our religion.” Does that make it anti-Semitic to oppose aborting Jewish babies? If a religion were to allow ritual child sacrifice, rape of children, genocide, or any number of other moral atrocities, no court would allow those practices on the ground that a difference of opinion among religions renders it a religious question. Much less would it enshrine those practices in the Constitution. Jewish acceptance of abortion is no reason to enshrine murder in the womb, nor a bar to banning it.

During the 2020 hearings on Justice Amy Coney Barrett’s nomination to the Court, Sen. Amy Klobuchar, an abortion advocate, grilled Barrett about a law review article she had written listing seven Supreme Court cases generally viewed as “super precedent,” including Marbury v. Madison, the 1803 decision that established the principle of judicial review pursuant to which courts can strike unconstitutional laws, and Brown v. Board of Education, the 1954 unanimous ruling that racial segregation of children in public schools pursuant to laws requiring or permitting it was unconstitutional, in effect overturning the 1896 decision in Plessy v. Ferguson, in which the Court had reasoned that facilities could be segregated as long as they were equal. Klobuchar wanted to know how Barrett would define super precedent. As defined in scholarly literature, Barrett replied, it means cases that are so well settled that no one calls for them to be overruled. Roe v. Wade “doesn’t fall in that category” because there are still calls for it to be overruled, she said.

Brown v. Board of Education was a controversial decision, in part because it infringed on the political and legislative process by writing new law. But that controversy has died with the passage of time. One way to view Brown is: the political and legislative process had run its course for years without remedying the affront to human dignity inherent in racial segregation, and it showed no promise of remedying it in the immediate future, so the Court stepped in. How is this different from the exercise of raw judicial power in Roe? Perhaps…

[…] This is just an excerpt from the February 2022 Issue of Culture Wars magazine. To read the full article, please purchase a digital download of the magazine, or become a subscriber!

(Endnotes Available by Request)