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Feature 05.19.2022 10 minutes

A Human Event

Supreme Court Justices Samuel Alito And Elena Kagan Testify Before The House Appropriations Committee

The consummate statecraft of Justice Alito's leaked abortion opinion.

I must confess that when the news broke last night and I read Justice Alito’s careful, exhaustive, impressive opinion, I fell into a mild despair. For the Justice preserved, as one of the defining strands of his opinion, that the human standing of the child in the womb would be left as a matter merely of belief.  And as one justice put it a while back, the people in the States may simply be invited to mull over their “value judgment” on when that child in the womb becomes human—and how much they would “value” the protection of that child.

But it became clearer to me last night that any disappointment was overborne by the vast good that Samuel Alito accomplishes here. I think that the Straussian reading here would be the right one, and that is how it will be read by the opposition. They will say what Strauss said of Machiavelli in The Prince: that there was a façade of moderation covering a radical interior. Samuel Alito showed us here how a demanding moral reasoning on this matter would have to be tempered in what could only be called a consummate act of statecraft.

Alito does what I’ve complained for years that White and Rehnquist, the dissenters in Roe, never did: he draws upon the precise facts about the development of that small human being in the womb. Indeed, he supplied almost all of the substantive arguments that I’d want the Court to make. But he covered them over with the persistent “concession” that a large portion of “opinion” in this country did not exactly see things in this way—that the objective, inescapable human standing of the child in the womb was still a matter of “belief,” with no claim to be accepted by anyone who doesn’t share that belief. And so he sought to give them this assurance: that the very reason that the Constitution does not confer rights to abortion “does not undermine them in any way.”

At almost every point a decision was made to turn away from the moral point that offered the most decisive judgment. And so, on the matter of “viability”: The point at the root is that a person does not lose his standing as a human being, and a bearer of rights, when he becomes weaker and more dependent on the care of others. That is simply another version of “might makes right.” But when the Justice turned to viability, his first response was to say that “viability is heavily dependent on factors that have nothing to do with the characteristics of a fetus,” such as the “state of neonatal care at a particular point in time.” With improved technology, the point of “viability” has been pushed further back in time. And yes, he might have said, we don’t want to make the standing of any human life depend on the current state of the art in incubator science. Still, why turn away from the decisive moral point that should govern the judgment?

On the matter of “liberty” and its restrictions, the main question will always be on the difference between liberty and license, the wrongful use of liberty. Liberty finds its limit when it is directed to wrongful things, done to others and oneself. In other words, as Lincoln said, there cannot be a “right to do a wrong.” But when Justice Alito turned to that question his first response was to say that liberty will face an array of “competing interests.” In this case it is a matter, as he says, of balancing the “interests of a woman who wants abortion and the interest of what [some people have] termed ‘potential’ life.” There is a turn away from a possible “wrong” in taking an innocent life, and merely giving us a conflict between two plausibly legitimate interests, between a full-fledged person and a “potential life.” In other words, at every point there is a move to turn away from the more compelling moral argument. But all of this seems evidently done with the purpose of softening the moral edges of the argument.

And so what was the purpose of writing in this way? The firestorm of opposition is bound to inflame with the non-truth that this decision will do away with the right to abortion throughout the country. The justice is trying to write strongly to make the point that it does not. In the meantime, he has provided all the evidence and most of the reasoning to show why it is untenable to claim that this offspring in the womb is anything other than a human being from its first moments. He leaves us then to draw the conclusion that should be obvious, to those with eyes to see: that this child in the womb deserves the protection we would accord to all other human lives under the laws on homicide. We would leave it then to the States to determine just how quickly, or fully, that protection is extended.

The apt comparison comes with Macauley’s memorable account of the Toleration Act in England:

The sound principle undoubtedly is, that mere theological error ought not to be punished by the civil magistrate. This principle the Toleration Act not only does not recognize, but positively disclaims. Not a single one of the cruel laws enacted against nonconformists by the Tudors or the Stuarts is repealed. Persecution continues to be the general rule. Toleration is the exception. . . These are some of the obvious faults which must strike every person who examines the Toleration Act by that standard of just reason which is the same in all countries and in all ages… That the provisions which have been recapitulated are cumbersome, puerile, inconsistent with each other, inconsistent with the true theory of religious liberty, must be acknowledged. All that can be said in their defense is this; that they removed a vast mass of evil without shocking the vast mass of prejudice.

Samuel Alito’s crafted opinion strikes at a vast body of evil—a lethal evil, massive in its scale—but at the same time it holds out an assurance that this “right,” which some people see as bound up with nothing less than their personal freedom, will remain secure for them, at least in the States where they wish to live. But when people came out in pro-life marches in the worst weather in Washington, they were registering their opposition to the poisoning or dismembering of babies in the womb. They never thought that they were arguing for a license to keep engaging in that killing on a massive scale, so long as it was done in Blue States.

The reaction from the defenders of abortion will come in a firestorm. And what else would we expect from the people who portray a law in Florida, supporting parents, trying to shelter small children from a bewildering instruction in gender identity, as an attack on children and the transgendered?  These people will not be modified by a carefully crafted opinion, taking a generous posture of tolerance. But the willingness to make that gesture in a carefully written and judicious opinion does as much as the very gravity of the situation–and the politically combustible state of the country—would have us pray that the judges do.

Still, the willingness to step away, in prudence, from the more demanding moral arguments may impart some lingering doubts. The opposition, we know, will not be placated, or drawn by Alito’s moderation. And the media will not report the reasoning; they will report the box score of the vote and the bottom line—that the right to abortion is indeed being removed now as a constitutional right that people don’t lose when they shift their residence from one state to another.

But in that case we may plausibly ask, If the teaching of moderation will induce no reciprocating moderation, then why turn away from an opinion that gives a more lasting, morally coherent account of what the Court is doing? That kind of account would not only affect the way we understand ourselves at this moment. It would also establish the firmer ground for the Congress, as well the pro-life movement in the States, if we seek now to take the next step and seek to extend those protections of the law for the unborn child.

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