Roe Overruled: The American Proposition Revived and Changed?
By David Wemhoff
“We end this opinion where we began. Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”
With those words, Justice Samuel Alito concluded the majority opinion in Dobbs v Jackson Women’s Health Organization on Friday, June 24, 2022.
The Constitutionally protected right to an abortion was found to be baseless. The entire abortion question was kicked down to the States where the legislatures and the democratic processes are to deal with it. It was Federalism in practice but if you are Catholic a fundamental flaw in the Constitution remained. Dobbs seemed to offer a way to bring Catholicism into the public sphere as a basis of public policy, yet I, and many others, remain deeply skeptical. In this article, I shall briefly examine the Dobbs decision, a fundamental flaw in the US Constitution, the significance of this decision, and where we go from here.
The Decision
The majority opinion in Dobbs effectively destroyed the holdings and bases of the Roe and Casey v. Planned Parenthood decisions. Roe found the right to an abortion as stemming from a right to privacy which that court said was one of the ordered liberties in existence at the founding. Casey upheld Roe but substituted the trimester approach with an undue burden approach and relocated the right to an abortion as a liberty interest protected by the Fourteenth Amendment’s Due Process Clause (referred to as Substantive Due Process).
Essential to Justice Alito’s analysis was a review of the Constitutional text, legal traditions, and American history. The majority did not find a basis for a right to abortion under either the doctrines of Substantive Due Process or ordered liberty. Neither the Constitutional texts nor the legal traditions nor history supported such a right. The claim of stare decisis, or binding precedent, was also dispatched by the majority after its categorical review of the key factors for determining whether or not to uphold the Roe and Casey precedents.[1]
Justices Clarence Thomas and Brett Kavanaugh wrote concurring opinions in which they questioned Substantive Due Process and opened the door to revisiting a lot of decisions such as those that struck down laws criminalizing or banning same sex marriage, homosexual acts, interracial marriage, and more. A theme ran throughout the majority and concurring opinions which was the Court was not supposed to act as a super-legislator and thereby short-circuit the democratic process. The Court was not to substitute its wishes or values for those of the people’s elected representatives. Dobbs’ Constitutional jurisprudence keeps some continuity and tradition in American life and preserves to some extend the Natural Law that was once more evident in American.
Listening to the oral arguments in December, 2021, it was clear that Roe was in trouble, but signs of its impending demise appeared long before. Roe had not only divided the country, but it lead to the rise of Donald Trump, someone the Establishment, or the plutocracy, simply did not like. He brought with him a renewed sense of traditional American identity, and that roiled the societal elites. State legislatures were acting in disregard of Roe and Casey as they passed trigger laws and more to weaken the right to an abortion. The pro-lifers were relentless, determined and cohesive. They just did not go away and so the Catholic leadership, including the prelates, increasingly came to their aid. The pro-life grand strategy of voting for pro-life politicians and especially pro-life presidents who would choose acceptable members of the Supreme Court, ultimately proved effective though it took a while and losses were heavy.
The Catholic elites had long ago turned to supporting abortion as their correspondence from the 1960s shows. When the University of Notre Dame through President John Jenkins announced in September, 2009 that Notre Dame would be joining the annual March for Life, that was a clear signal things were changing. Notre Dame had more than 40 years earlier gone to a lay board of trustees who reflected the values, for the most part, of the socio-economic elites, and so such an announcement presaged a shift by at least some elites away from support for Roe. The approval or support of societal elites is essential to effecting change, and hence their conversion is important. When the Church leadership gets behind a grass roots movement, it can effect real change for the better. The Catholic Church, though it may appear inert or worse, is actually quite powerful when its leaders want it to be.
The Constitution’s Nature
Dobbs should cause us to reflect on the nature of the American system. Power and power relations are the things that the United States Constitution concerns itself with and always has. The Constitution, at least to this point, deals with power without any guiding morality, and Constitutional jurisprudence is a complex of rules that are supposed to regulate power so as to mediate conflicting interests in society. When conflicting interests reach a certain level of importance, the Supreme Court will address the issue. Two important points need to be made at this time.
First, the form of government is the most obvious aspect of power dynamics, and it is what most concerns intellectuals, commentators and writers. The basis of the public policies or societal rules is of greater importance. With abortion as a moral issue, as recognized by Catholic theology, Justice Alito and the Dobbs majority, the most important question is, Whose morality – if any can or will — inform the laws of the fifty states of the US? The answer to this question is not so clear because Catholics and supporters of some form of the natural law are pushing back with some success. The media and entertainment industries are constitutionally protected, pervasive and influential, but not all powerful. The Supreme Court in Lawrence v Texas (2003) was openly hostile to Christianity as the basis of public policy and said that religious and moral concerns cannot be the sole basis of the laws.[2] It is to this point that that Justice Alito’s comments as noted above seem to be addressed. The First Amendment’s Disestablishment Clause with all of its jurisprudence remains the fundamental law of the land and even with the application of the Dobbs reasoning, it is unlikely that clause would be removed without a constitutional amendment. However, could that clause be somehow limited to only the federal government? This may be an important inquiry and area of study and perhaps another front of conflict, though the Fourteenth Amendment seems to pose a very firm barrier to allowing state churches.
Second, the conflicting interests the American Founders were most concerned about regulating were the varying economic interests in America. They knew there where enormous natural resources lying before them, a commercial or merchant class was firmly established, the value of invention and technology was recognized, and they inhabited very favorable geopolitical terrain given their separation from the warring states of Europe and the absence of any serious opposition to expansion across the North American continent. This theme comes forth again and again in the writings of the Founders and especially in James Madison’s Federalist X.
The Constitution is an eminently practical document, one that deals with and serves material values and processes, avoids the mention of God, and promotes no religion. Part of that was due to an ideology the Founders adopted and that allowed them to garner the support for independence and a new government from a diverse group of people who were members of a number of Protestant sects. Some of these people came to America to avoid persecution, yes, but as set forth in Simon Targett and John Butman’s New World, Inc.: The Making of America by England’s Merchant Adventurers, the main driving force for the establishment of the thirteen colonies was economic. To get such support, the Founders had to avoid antagonizing the groups which included avoiding the promotion of rivalries and jealousies of things tangential to what was important.
The Founders’ primary concern was the creation of the institutions and processes that were strong enough and flexible enough to enable and promote a certain political economy. These men did not want a Government too strong to interfere with their businesses nor did they want a mob to rule with all the uncertainty and loss that brings. They did not want interference with their business and commercial enterprises from forces, groups, and dynamics not of their making as Amintore Fanfani explained in Catholicism, Protestantism and Capitalism and as confirmed by B School economics. The Founders understood, as anyone with any intelligence understands, that in chaos there is opportunity, that one can best achieve one’s own goals by providing something of value to others, that cooperation and even manipulation can bring great material rewards.
The American Founders were practical men, and pragmatism has characterized the American experience from the beginning as Carl Schmitt observed in The Nomos of the Earth. Pragmatism is often devoid of principle other than what works to achieve the goals set forth by the actor, and that pragmatism, with a unique system of social organization, has resulted in the rise of powerful private interests, or what I term a plutocracy, that exerted and exerts inordinate influence on culture, government, and even religion.
The Constitution is a shock absorber, a mediator of conflicts and is not beholden to Catholicism. Roe and Casey were overruled because the justices clearly applied American jurisprudence, not a moral code, at a critical time to a critical issue. Even though six of the justices are Catholics or Christian, nowhere in the decision is there mention of their religion or of a religious basis of the decision. Their thinking and analysis was clear, precise and detailed, and they acted with courage.
Timing and Reaction
There was a qualitative difference in the land when we awoke on Saturday, June 25. This great darkness known as Roe was gone, and America once again seemed to be a good place, the kind of place we grew up in or would want to grow up in. We all owe a debt of great gratitude to all of those who worked, prayed, and suffered over the years to overturn Roe. May God bless you abundantly.
The World took notice. America still leads and influences much of the world. What we do affects billions.
Dobbs comes at a very important time. First, the defections from the American experiment were accelerating especially given the perception, if not also the reality, of a rigged presidential election in November 2020; the entire Covid 19 response by the Government and industry; the growing data on negative consequences of the experimental vaccine; Big Tech and industry signaling their disdain for the little guy by suppressing speech, supporting the “social justice” riots of the Summer of 2020, while promoting Critical Race Theory and LGBTQ rights; and the Democrats’ actions which amount to political repression through the January 6 Commission and grand jury indictments of key Trump officials. Prior to all of this, the key social issues (same sex marriage, homosexual acts) were pulled away from the people and were being decided by a Supreme Court that substituted someone else’s morality for those of the legislators. Most importantly, many Catholics were deserting The American Proposition.
Second, the US and Western Europe are engaged in a global conflict with Russia and China. These are formidable powers. The ruling elites need everybody on board, and the Dobbs decision makes sure that the core population of America has their faith renewed in America as a good land, a good country and that the American ideology works for them. At least for a while.
Dobbs is likely to lead to an increasing tendency towards geographic segregation of opposing world views in America. With economic disparities and demographic differences, this dynamic, while compartmentalizing cultural and ideological differences at the state and local level, may also increase the chances of civil war.
The American left, like Rep. Maxine Waters, said “The hell with the Supreme Court. We will defy them.” In doing so, she repudiated the Supreme Court’s decision and with it the entire American idea of Constitutional government, and American jurisprudence. Michigan Attorney General Dana Nessel said she would not enforce Michigan’s ban on abortions. Joe Biden promised federal legislation to codify the right to an abortion, and if the Democrats go through with that, it would reveal just how stupid and maniacal they are. Biden’s proposal would again shift the focus of the abortion debate on the national level fueling the rise of perhaps another Donald Trump. The hypocrisy of the American left and the globalist plutocracy they serve immediately became clear and dangerous.
Archbishop William Lori said that we must build a culture of life. The USCCB issued a statement that a welcoming society is needed for mothers and families with material resources made available to build families. The National Catholic Register reported that Archbishop Vincenzo Paglia of the Pontifical Academy for Life said Western society “is losing its passion for life” and that the Dobbs decision “is a powerful invitation to reflect together on the serious and urgent issue of human generativity and the conditions that make it possible.” The statement went on that the material needs of families and women had to be provided for and the entire issue of life removed from the ideological arena.[3]
Lessons and Forward
We will always remember where we were and what we were doing when the news reached us that Roe v Wade was overturned. Those of us who are old enough will remember where we were and what we were doing when Roe was announced as the law of the land. Many of us never thought that Roe would be overturned much like we never thought the Cold War would end, yet the end came, and Roe was assigned to the trash heap of history.
Through work, persistence, suffering, prayer, faith, and cohesion, the pro-lifers achieved a major objective of doing away with Roe. The relationship with the GOP, oftentimes one in which the pro-lifers were viewed with disdain, paid off with the election of Donald Trump as President, the one responsible for appointing three key justices to the Supreme Court of the United States.
The pro-life movement was a movement of the little people. Properly lead and supported by powerful institutions like the Catholic Church as well as some elites, these movements, with definite goals and determination, can effect change.
The Catholic Church is a powerful organization when its leadership acts. Even though it appears inert or worse, it can rouse itself and achieve its mission.
The plutocracy remains in place as do many evils in society. This plutocracy and the evils are in place due to a fundamental flaw that remains in the American system of social organization. That flaw allowed a decision like Roe (and many others) to come about and wreak havoc in society. That flaw is the refusal to base the public policy and statutes of the United States on the Divine Positive Law, to recognize Christ as King, and to give Jesus Christ His due. Such would allow for the full development of the person – both materially and spiritually – which is a fundamental part of the common good. As Catholics, we know this is the ideal form of social organization and it is known as the Social Kingship of Christ. It is the best we have to offer and it is offered to our fellow citizens and to our fatherland. Dobbs’ offer to bring Catholicism into the arena as a basis of public policy will be tested, but if it proves illusory, the damage will be very great.
In any event, the Catholic leadership must have a firm belief in the Truth and the rightness of our cause, and the need for conversions of the elites and our fellow citizens. This is the best way to achieve what is good for all, and that, I submit, is eminently practical.
[1] Of note, the Court did not consider societal reliance of the type mentioned by Dobbs and the Solicitor General as sufficient. In general, reliance by society on a decision does not seem to be sufficient to justify stare decisis. In support of the thesis that the Constitution serves primarily economic interests, the Court’s majority opinion that that there was “no reliance factor because the societal issues were not concrete reliance interests like those that develop in cases involving property and contract rights.”
[2] “It must be acknowledged, of course, that the Court in Bowers was making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. “Our obligation is to define the liberty of all, not to mandate our own moral code.” Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 850 (1992).
“Chief Justice Burger joined the opinion for the Court in Bowers and further explained his views as follows: “Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeao-Christian moral and ethical standards.” 478 U.S., at 196. As with Justice White’s assumptions about history, scholarship casts some doubt on the sweeping nature of the statement by Chief Justice Burger as it pertains to private homosexual conduct between consenting adults. See, e.g., Eskridge, Hardwick and Historiography, 1999 U. Ill. L.Rev. 631, 656. In all events we think that our laws and traditions in the past half century are of most relevance here. These references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex. “[H]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry.” County of Sacramento v. Lewis, 523 U.S. 833, 857 (1998) (Kennedy, J., concurring).” Lawrence, 539 US 558, 570-572
[3] Edward Pentin, “Vatican Official: US Abortion Decision ‘Challenges the Whole World’ to Protect Human Life,” June 25, 2022, National Catholic Register.