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On Abortion, Put Not Your Faith in Judges

On Abortion, Put Not Your Faith in Judges

Pro-life activists pray in front of the U.S. Supreme Court in Washington, DC. (photo: Chip Somodevilla / Getty )


EDITORIAL: Ultimately, our faith — when it comes to bringing an to end to legal abortion — shouldn’t rest in any branch of government.

The outcome of last week’s U.S. Supreme Court case regarding the U.S. Food and Drug Administration’s (FDA) approval of the abortion drug mifepristone was highly disappointing. Yet it was also extremely instructive for faithful Catholics, in terms of how we should view the fight against legal abortion in the post-Dobbs era.

First, though, some heartening news about the unfavorable outcome: The unanimous decision by the court’s nine justices, dismissing the pro-life challenge to the regulatory process, was made on narrow procedural grounds. It held that the plaintiffs in the case lacked legal standing to mount such a challenge.

This means that the FDA approval could be challenged in the future if another party with the required legal standing initiates a similar lawsuit against the flawed process by which the federal government has authorized use of the drug as a tool to kill unborn babies.

While that’s true, the justices’ unanimous rejection of the case remains a pointed reminder that the court’s dominant conservative wing — composed almost entirely of brilliant Catholic legal minds — does not regard itself as an agent of the pro-life cause.

In fact, previous justices who shared their legal outlook also didn’t position themselves that way. The late Antonin Scalia, the intellectual forerunner of the conservatives now serving on the Supreme Court, is the most relevant example.

As a properly formed Catholic, Justice Scalia abhorred abortion because it’s the intentional killing of a completely defenseless human being. As a renowned jurist, he abhorred the disastrous Roe v. Wade decision that constitutionalized abortion in 1973 — but for a profoundly different reason. He detested Roe because it made a mockery of the constitutional and democratic foundations of the American republic by manufacturing a supposed “right” to abortion out of thin air via an egregious misinterpretation of the 14th Amendment.

It was on this basis, and not his personal convictions as a Christian, that Scalia opposed constitutionalized abortion as a judge. Given that the Constitution says “absolutely nothing” about abortion, “The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting,” he stated at the conclusion of his scathing dissent against the Supreme Court’s 1992 Planned Parenthood v. Casey decision, which upheld Roe’s central finding.

This sound originalist legal logic similarly informs the thinking of the conservative justices currently serving on the court. Like Scalia, they collectively understand it’s not their responsibility to rewrite the Constitution with respect to abortion, or anything else. Indeed, this was the specific reasoning that animated Justice Samuel Alito’s landmark June 2022 Dobbs decision that struck down Roe and returned abortion law to the authority of individual states.

Alito and his originalist colleagues know their job is to uphold the Constitution, not undermine it. Equally, it’s not their role as Supreme Court justices to legislate from the bench, thereby usurping the constitutional authority of Congress and state legislators to frame new laws. Their job is to support the democratic process, not subvert it.

Understanding these facts, we can see why it’s a mistake to expect the Supreme Court to put an end to the scandal of legal abortion all by itself. Certainly the pro-life movement will continue to sponsor legal challenges that, if successful, can greatly reduce the current scope of legal abortion. And those court challenges will include more lawsuits directed against distribution of the dangerous and deadly abortion pill. Such legal actions, however, should be understood as stopgaps, not permanent solutions.

At the same time, we need to realize the limitations of the democratic process itself as a means of attaining the ultimate goal of ending legal abortion. Pope St. John Paul II was a democratic champion throughout his 26-year papacy, yet he also cautioned repeatedly about the need to anchor democracy in sound moral norms. As he proclaimed in his pro-life encyclical Evangelium Vitae, “The value of a democracy stands or falls with the values which it embodies and promotes.”

Since Dobbs, pro-lifers have been on the losing side of every abortion-related measure on state ballots. While entrenched pro-abortion media biases have played a role in these unfavorable results, they nonetheless communicate that a very large percentage of U.S. voters have become blind to the moral realities in play with abortion.

And what about the executive branch, the third component of the federal system of government? Under the Biden administration, this bureaucratic behemoth has been wielded as a brutal cudgel against the vulnerable unborn. Federal agencies have been mobilized across the board to advance abortion rights and to undermine the conscience rights of medical professionals who object to participating directly or indirectly with abortions. These unceasing attacks on conscience rights provoked the Supreme Court to warn, in its dismissal of the abortion-pill lawsuit, that “federal conscience laws definitively protect doctors from being required to perform abortions or to provide other treatment that violates their consciences.”

In summary, our ultimate faith — when it comes to bringing an end to legal abortion — shouldn’t rest in any branch of government. This is a final victory that can only be delivered by living out our faith in God privately as well as publicly, converting hearts and minds through a constant witness of love and proclaiming as disciples of Christ that his gospel of life applies to every human being in every place — including babies who are still living in their mothers’ wombs.


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