Updates: Footnote reference; medical pedagogy.
Justice Clarence Thomas devotes most of his short concurrence in Dobbs v. Jackson to revisiting his longstanding opposition to substantive due process. Here is his third reason for “jettisoning the doctrine entirely”:
Third, substantive due process is often wielded to “disastrous ends.” For instance, in Dred Scott v. Sandford, the Court invoked a species of substantive due process to announce that Congress was powerless to emancipate slaves brought into the federal territories. While Dred Scott “was overruled on the battlefields of the Civil War and by constitutional amendment after Appomattox,” that overruling was “[p]urchased at the price of immeasurable human suffering,” Now today, the Court rightly overrules Roe and Casey—two of this Court’s “most notoriously incorrect” substantive due process decisions—after more than 63 million abortions have been performed. The harm caused by this Court’s forays into substantive due process remains immeasurable.Thomas, Dobbs v. Jackson, Concurring, pp. 6–7; internal references removed
The comparison is neither new nor as misplaced an equivalence as the interwebs suggest.* Apart from the juridical connection Thomas highlights, both decisions failed to recognize and act on behalf of the personal dignity of vulnerable and victimized human beings. Both dulled the conscience of the nation’s soul to its sins. Both were overturned only after a great loss of life.
Both had to be and will have to be followed by great periods of restoration. What will this require? Both a restoration of reason and a restoration of culture. In what follows, I principally consider the former, which is intimately and mutually connected to the latter.
The majority opinion goes to great lengths to “set the record straight” (p. 16) about the history of abortion in common law and in the United States, including a lengthy appendix of State laws pre-Roe. The Dobbs dissent “is very candid that it cannot show that a constitutional right to abortion has any foundation” or contend with the long legal history against abortion (p. 35), and its “failure to engage with this long tradition is devastating to its position” (pp. 35–36). Instead, the “predictably hysterical” (Helen Alvaré, “Roe Overturned: A Wonderful Day for Democracy,” NCRegister) argument of the dissent highlights by its avoidance of them the core truths that have always been at the heart of this debate.
To be human means to be rational, that is, to have the innate capacity to be set free by the successful search for the truth. And the truth is a cause universal in its power. Its presence illuminates a veritable cosmos just as its absence or occlusion leaves a black hole in the midst of the intelligibilities of human life. Roe and Casey jointly enabled a core set of lies about the good of family life while propounding another set of lies about the meaning of our country’s political order. To remove the lies means to restore the possibility of receiving the core truths opposed to those lies, yet the lies have held sway for so long that many are at a loss for real understanding, albeit not at a loss for the words in which to express it.
How can we understand being at a loss for understanding? Philosophers of science sometimes discuss “paradigm shifts,” a term of art that is now a bit cliché even outside of academia. But the insight captured is this: the loss of one system of explanation, which once intelligibly organized a large set of phenomena into a coherent whole, along with its replacement by another system. The terms of the new system are unfamiliar and may be unclearly connected to and even partially untranslatable into the old vocabulary. One famous paradigm shift in the history of science is from geocentric astronomy to heliocentric astronomy—Donne’s line “’Tis all in pieces, all coherence gone, / All just supply, and all relation” captures this well. A paradigm rests upon a set of insights, first principles, which enable the work of organizing the system which one—accurately and adequately or not—thought to be the truth. To cast falsely taken first principles into doubt can be to introduce truthful incoherence into the geocentric theory about one’s mental universe. One is thereby at a loss for understanding, but not at a loss for words, even if those words have lost their old points of reference.
Our post-Roe-and-Casey nation is now in such a position. True, there is now more heat than light, but the light is new—or rather, an old one mistaken for new. We are trying to assimilate what has happened, reorient our political bearings, and reorganize and retain our old explanations. Just as 17th century scientists expounding the new heliocentrism sometimes fell into the old ways of speaking, so too there are many—by no means all—on both right and left that have yet to hear what the new terms of engagement really mean. After all, when entering into a new system of explanation enabled by new principles, it takes time—even generations worth of time—not just to assimilate those principles but also to restore the strength and familiarity with the new paradigm as one had enjoyed in the old.
The old system of explanation also possesses a type of intellectual inertia. Its momentum is buffered in the protected fluid flow of culture and custom. Even when a new impetus deals it a blow that will eventually send it irreparably off course, its prior momentum carries it forward. Not only that, but the shifting ground beneath the old paradigm only slowly affects the broader constellation linked to the technical core of meanings in the paradigm itself. The scientific elements of geocentrism were affected first, but how long until art and poetry incorporated the changes? or, ordinary language? (Don’t we still say that the sun rises and sets?) The new insight is not like reformatting a hard drive. Rather, its causality is subtler. It is new code as yet unexecuted, a pattern or form of thought, a matrix of principles serving as background, illumination, and focal points for everything that we have looked at—yet it has now been taken away and replaced with something new. The phoropter goes click! to a new setting. Our eyes take time to regain their focus and see the world’s old fixtures in an unfamiliar daylight.
This is the harsh new daylight: The constitutional right to abortion was never really there. Roe-and-Casey constitutional geocentrism was never true. “Roe was egregiously wrong from the start” (Dobbs, p. 6). “The Dobbs majority essentially calls Roe and Casey junk—irrational, nonlegal nonsense.” (Alvaré, ibid.)
However, there are other geocentrisms to uncover. Are those on the right or who count themselves conservatives really ready for a post-Roe-and-Casey nation? (David French: No, not at all, yet …; Ross Douthat: Well, yes, however …) Time, and action, will tell.
Again, what is required in the post-Roe-and-Casey era? A full reception of the core truths at the heart of the debate—the principles, ever old as new, that can now organize the moral-and-political universe in our country more adequately—is required for an era of restoration post-Roe-and-Casey.
In what follows, let us look out at that alternate universe a bit more. The core truths network a wide array of effects, integral pieces of family and public life that can now be set free from the old slaveries that Roe and Casey imposed. Again, this network, this system of connected truths, is real and effective because it flows from the implications of those core truths about the goods of family and political order. Causes universal in power have a universe of effects.
We can anticipate these possible effects by looking back at all the pressure points where the old illegal holds had previously been applied. Untie the (illogical) knots and slowly feel freedom of movement returning in limbs long numb. The Roe-and-Casey tractor beam is gone, but the power of that old set of lies, the black hole in the midst of our culture, is still present.
Rhetoric. Just as the old ways of speaking from the old theory overstay their welcome, so too will the rhetoric of the abortion wars. The pro-life movement and its pro-abortion opponents have built up extensive rhetorical “arsenals” in the “battle for life” (i.e., the “war on women”) but this strategic terminological proliferation was in part a function of the high stakes: overturning a Supreme Court decision. Marches had to be inspired and elections had to be won, all to achieve a nearly impossible goal. Conversely, public opinion had to be massaged and manufactured to protect it.
But now, there is no such focal point. Hysterical rhetoric reacting in defense of an ex nihilo constitutional right or springing forth to attack it and its allies can ring ever more hollow and reveal itself more easily for what it is. A rhetorical disarmament is now possible in ways it was not before. Rather, the rhetoric can and should be diffused and redirected. Social media should be consciously and responsibly used for such an ennobled end. It was easy to shout slogans or put up with insults at the first Walk for Life in San Francisco, it is not as easy to employ true rhetoric to convince your neighbors of what should be next after Roe.
Of course there are still great goals to be achieved in building a culture of life—people will need inspiration: “Word is the shadow of deed,” and rhetoric with its characteristic “linguistics, imagery, and story affect the way we think, believe, vote, and live.” Yet the modality of our language no longer need be pinned about a now non-existent centripetal point.
The alliances inked in treaties to share rhetorical vocabulary were also signed and sealed by Roe-and-Casey. “You speak like us, and with feeling—you are on our side.” Rhetoric shaped and confirmed the sides: of argument, of explanation, of evidence, of law and policy, party purpose, and more.
Conversation, discussion, and argument. If it is surprising to some how little the arguments have changed, it is surprising to none how tired we have grown of making and hearing them. Yet by removing the falsity at the heart of the debate, the chocks of Roe and Casey, reason is set free—it totters and stumbles, to be sure, but this should give us hope:
Dobbs will “send a message” to his [Fr. Nicanor Austriaco’s] students and challenge them to think through the ins-and-outs of the abortion debate since he suggested they will no longer be able to rely on Roe’s premise that abortion is a constitutional right. “I think Roe v. Wade was a conversation stopper,” he said. “I think that once it returns to the states, arguments are going to have to be made on both sides of this discussion. My students therefore will have to be challenged to consider the reasons for one side or the other, not simply take it for granted the judicial fiat, that is what it is.” Approaching the issue from what he said was a pro-life perspective, Austriaco added: “Whenever we move to an arena where reasons are considered, I’m incredibly hopeful because I believe that the pro-life position is a reasonable one, not necessarily a religious conviction.”NCReporter, “As Court overturns Roe v. Wade, Catholics react with joy, anger, trepidation”
Frequently, discussions or debates in the Roe-and-Casey shadow were unreal conversations. Those pro-abortion had little to no skin in the game, for power was truly and authority apparently theirs, an ever-present logical failsafe: SCOTUS locuta, causa finita est. Even many scholarly disputes—as honest and as erudite as may be—were still academic, living in counterfactuals. But no more.
This cuts both ways, of course. How many on the pro-life side have asked in their hearts: “How can I take someone seriously who doesn’t even think to question Roe? to see its damning flaws?”
Indeed, too many on the pro-abortion side—and, yes, too many on the pro-life side—of the debate seem to be exploring their opponent’s mental universe as if for the first time. All the more so have they not explored the alternate, post-Roe-and-Casey universe far enough. There are some pro-abortion supporters suddenly making connections that are common sense to readers of Pope Paul VI’s Humanae Vitae. Yet some pro-life advocates still scoff at links that are old news to lectors of Cardinal Bernardin’s “seamless garment” speech.
To be human means to be rational, to have the innate capacity to be set free by the successful search for the truth. This often requires true argument, the work of following out reasons to their end and fullest extent. Our shrill public discourse emotes and runs us mentally ragged; as a consequence we suspect someone who claims to propose arguments. Sometimes, this is because it demands too many intellectual resources to translate their framework into our own so as to understand their points; at other times it is because we look for and find their agenda, what colors their world view, to which intellectual tribe they belong. We then write them off. After all, we have been burned by arguments before, just as people have let us down, and especially people purveying arguments (see Plato, Phaedo, 89d et seq.).
Intellectual tribalism is an easier argumentative position to defend—one always seems to have the high ground. In such circumstances, those arguing that rational arguments are not mere power plays risk losing the argument due to exclusion, disinterest or boredom, irrelevance, lack of time, but increasingly, a sort of violation of what it means to be human, a violence against our innate capacity to be set free by the truth if we search for it. We have become misologists. We capitulate and no longer play the argument game in public because we have forgotten what “the argument game” originally meant, the chance to live out a fully human life. That is, it is not a game; it cannot be “won” because the victorious argument achieves the truth, and the truth cannot be privatized.
It follows that, as arguments were biased by a false premise, we can trace the effects through the post-Roe-and-Casey world by looking to other areas animated by the spirit of argument, discussion, and debate: from science and policy to neighborhood civics.
Presentation of science; medical training. Rhetoric and argument marshalled to defend post facto a rootless court decision often had to distort, to misrepresent, to mute, and to skirt around truths of biology, embryology, gestation, obstetrics and gynecology, and even general medical terminology. Is that a heart? Does it have a heartbeat? (“Abortion Opponents Hear a ‘Heartbeat.’ Most Experts Hear Something Else,” New York Times) Is a human fetus also a human child? When is the unborn child capable of feeling pain? When is the unborn child viable outside the womb?
Of course, bioethical discourse was affected as well. What genetic and congenital defects or gestational mishaps medically diminish “quality of life”? When and for what price can his or her remains be legally sold to laboratories? What is the moral difference between a direct and an indirect abortion—if such a distinction is meaningful at all? Medical pedagogy, training, and requirements placed upon students were also shaped accordingly: How could someone honestly and “conscientiously” refuse training in an area of legal medical care?
These and more were not questions posed in abstracto. Quite often, their framing and terminology revolved around the driving assumption of Roe-and-Casey geocentrism. Since that assumption had to be true, the science had to conform, to add a few epicycles, to save the phenomena of a right to abortion. Expert opinions called in to shape laws about abortion were subject to the scientific and medical versions of the abortion distortion. In the rhetorical firefights calling for the long-range artillery of “Science!”, it was the case that both sides were willing to bend the rules of engagement (albeit one side more than the other, and of course you know which side I mean, right?).
Yet even Dobbs, despite removing the false constitutional framing of the issue, did not take its bearing from the real philosophical gravity-well at the center of it all: the ontology of fetal life, the existence of the human child in the womb. Even Scalia, when dissenting in Casey, wrote that “there is of course no way to determine that as a legal matter; it is in fact a value judgment.” (Hadley Arkes, “The End of the Beginning of the End of Abortion,” First Things) But Dobbs does open the door to such public settlements, especially if one correctly navigates “the intellectual vacuum that is the Kavanaugh concurrence” (Vermeule, “How to Read Dobbs,” Ius et Iustitium and cf. Twitter), due to “his morally curious claim that the Constitution is ‘neutral’ on abortion” (Arkes, ibid.).
Juridical and legislative practice. The decision in Dobbs itself comments on what Justice Sandra Day O’Connor once called “the abortion distortion” in judicial matters (Anderson and DeSanctis, “Roe Was Wrong the Day it Was Decided,” Newsweek). As Alito argues (Dobbs, pp. 56, 60–63), Roe-and-Casey geocentrism created a novel version of stare decisis, proposed unworkable standards for appelate courts, and wreaked havoc on legislation: “No legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion” (Dobbs, p. 62, citing O’Connor). Thomas adds that “substantive due process distorts other areas of constitutional law” (Thomas in Dobbs, Concurring, p. 5). Finally:
The Court’s abortion cases have diluted the strict standard for facial constitutional challenges. They have ignored the Court’s third-party standing doctrine. They have disregarded standard res judicata principles. They have flouted the ordinary rules on the severability of unconstitutional provisions, as well as the rule that statutes should be read where possible to avoid unconstitutionality. And they have distorted First Amendment doctrines.Dobbs, p. 63
At the same time, in the absence of the focal point of overturning Roe and Casey, there need be no more efforts on trying to find the shinier silver bullet or better legislative trial balloon to steer judicial activism in such a direction, no more time spent on litmus tests whether a candidate will defend or attack Roe. There will still be long legal cases; there will still be litmus tests. But the relevance of their purpose has been reframed by the new paradigm, one which is far more open-ended and favorable to the long-languishing goods of republican, civic, and family life, and the good of children.
Democracy and party allegiances. Do you know the name of your most local pro-life Democrat? What about the nearest pro-choice Republican? Have they ever bothered to really try to change your mind on this issue? Some effects of Roe-and-Casey geocentrism are not automatic or mechanical. Rather, some are shaped by the general form of thought induced by the enabling falsehood. It distorts not just thought, language, and terms of argument, but how we understand our desires, devotions, and allegiances.
Historically, as both defense of and opposition to Roe and Casey grew in a scheme of mutually assured destruction, fewer compromises became available or thinkable. In turn, these allegiances and party lines marked the outer limits and inner contours of what was deemed possible in the legislative and judicial arena. Yet that limitation is gone. With the forced reason for unity gone, deeper and truer reasons can be found. If the medical field and the courts suffered from “abortion distortion,” how much more did law and policy have to dance to the Roe-and-Casey big band? Artificial pacts, incidental allegiances, and “hold-your-nose-and-vote” pacts can sit that song out now.
Of course, this logically implies that the major parties have lost an element of unity. Democrats, to maintain the momentum of the ancien régime, will have to double down on abortion itself, shorn of its constitutionally geocentric support. Republicans, to retain the votes of pro-life individuals in favor of “liberal” family support, will have to reconsider the received wisdom of economic policies and performance that have themselves been systemically affected by the assumption that both halves of the reproducing workforce were freed by a constitutional right from parental obligations impairing productivity.
The illegal hold of Roe-and-Casey now called foul, partisanship has regained a point of freedom. Other parties, third parties, real and deeper bi-partisan alliances, now become more thinkable and thus more achievable.
Christianity, public life, and the Church in America. In no other area does this seem as clear than in the life of Christians in the public square, and especially Americans in the Catholic Church.
Ross Douthat rightly cautioned that “the vicissitudes of politics and its own compromises have linked the anti-abortion cause to various toxic forces on the right—some libertine and hyperindividualist, others simply hostile to synthesis, conciliation and majoritarian politics.” That’s true, but it doesn’t go far enough. The vicissitudes of politics haven’t just linked the anti-abortion cause to various toxic forces on the right, they’ve transformed parts of the anti-abortion movement, making many of its members as toxic as their “libertine and hyperindividualist” allies.David French, “Roe is Reversed, and the Right Isn’t Ready,” The Dispatch: French Press; referencing Douthat, “The End of Roe is Just the Beginning,” New York Times
One may debate the extensional scope of Douthat’s or French’s claims, but it is difficult to doubt their intensional accuracy. How many are thus affected is not as important as that enough, in fact, are. Indeed, links to political extremism, ideology, and partisanship on the left and the right has long exacerbated post-Vatican II divisions among Catholics in America. Again, our eyes must adjust to see the world’s old fixtures in an unfamiliar daylight. Once this is done, it is not necessary that the same theologico-political alliances be drawn up for the reason of maintaining or disrupting the Roe-and-Casey status quo.
For example, the editors of the National Catholic Reporter phrase their advice in the standard rhetorical terminology of the old paradigm: “In wake of Dobbs decision, it’s time for anti-abortion Catholics to become truly pro-life.” The op-ed of Fr. Thomas Reese, SJ, advises the US bishops along similar lines (“After winning on abortion, it’s time for Catholic bishops to switch parties,” NCReporter). The contents of both reflect the strategies, tactics, and confrontations of the past fifty years not simply over abortion, but abortion as defined by a Roe-and-Casey regime. Yet that regime is no longer in play, only the cultural forces that have lost their guiding star.
The alliances between American Catholics and the Democratic or Republican parties must be recognized for what they are: contingencies. Roe-and-Casey geocentrism made them seem like absolute and not hypothetical necessities. This has long distorted, to ever greater degrees, American Catholics’s understanding of doctrine surrounding the dignity of life, socio-economic teaching on the family, and conscience.
Take the last of these. (The false “primacy of conscience” paradigm in theology and the counterfeit version of conscience in which too many Catholics believe are topics for another day.) Such distortions empower Prof. Steven Millies to argue that the Church’s teaching on religious liberty and the liberty of conscience militates against enacting laws banning abortion: “The Catholic case for Roe has nothing to do with abortion and everything to do with the rights of non-Catholics to exercise their consciences under a constitutional system meant for everyone. … The Catholic case (for Roe) against Dobbs has nothing at all to do with abortion. Of course Catholics oppose abortion. But Catholics also are meant to support free consciences and civil peace. Because I do, I cannot support Dobbs.” (“A Catholic Case (for Roe) against Dobbs,” Considerations Substack).
This is an old argument—and its clear mistake concerning natural law and non-religious based morality even older but still prevalent—that hinders the adequate grasp of truth on many fronts thought incompatible: seamless garment; consistent life ethic; the preeminent issue. The argument concerning conscience has been proposed by many Catholics in the Roe-and-Casey regime before the Biden’s or Pelosi’s: “We know that the price of seeking to force our beliefs on others is that they might some day force theirs on us. … The Supreme Court has established a woman’s constitutional right to abortion” (Mario Cuomo, “Religious Belief and Public Morality: A Catholic Governor’s Perspective” A Report on Religion). The origin of the “personally opposed, but publicly …” view predates Roe (see Jonsen, The Birth of Bioethics, pp. 290–291).
Indeed, the result of the Roe decision was to confirm the dualism of public and private versions of Catholic truth (see Daniel K. Williams, Defenders of the Unborn, p. 8). The full clarity, consistency, coherence, and convicting proclamation of Catholic teaching no longer need suffer under “the law of the land,” for it was never law. This fundamental debate must now be had on the merits, in full view, out of the Roe-and-Casey shadow. Roe-and-Casey geocentrism is gone. Catholics can now focus on the substantive task of the restoration of a culture of life without that distraction and empowered by the full range of reason and Catholic truth.
It is clearer to many Republican Catholics or conservative, pro-life Christians where this implicates the pro-choice, liberal view. Yet it is less clear to them how it implicates themselves.
Employers and employment. As quickly as companies could volunteer to lower the costs of keeping their employees free of distractions from work did critics point out the self-serving nature of such “benefits.” Forced-birth leave safely avoided: “Feminism, which once envisioned alternatives to capitalism, is now invoked to justify capitalism’s present form” (Matthew Schmitz, “Handmaids of Capital,” Compact). Employers can ease their consciences with the thought that eliminating the workers’s burdens is “Ok!”
Kant was right when he said that “In the kingdom of ends everything has either a price or a dignity. What has a price can be replaced by something else as its equivalent; what on the other hand is raised above all price and therefore admits of no equivalent has a dignity” (Groundwork, 4:434). The value of a family is not fungible; it exceeds the margins of utility value because it is mired in real human relationships and not “set free” within a productive economic matrix. The Roe-and-Casey regime thus demanded families have neither price nor dignity, for dignity limits the desire to set a price on everything.
But haven’t we been legally free to formulate better family policies? Haven’t we been technically able to consider widespread maternity and paternity leave? to tie these benefits to dollar-for-dollar tax breaks for participating companies, or other inventive incentives? No, because Roe-and-Casey geocentrism set such freedoms akilter: “Because the courts had usurped decision-making on social issues, the GOP was relieved of the burden of having to legislate about them. Voters animated by social-conservative concerns became a reliable portion of the party’s base, delivering repeated victories while hoping for good judicial appointments in return.” (Gladdin Pappin, “Family Policy After Roe,” Compact) Indeed:
The end of Roe is the occasion for American Catholics to reassess their policy positions regarding a host of issues, including public subsidies for prenatal and neonatal health care, mandatory paid parental leave, publicly subsidized or underwritten childcare, and adoption reform. Are ones’ currently held positions formed by Catholic moral doctrine or partisan political loyalty? … A post-Roe America will demand even broader support for pregnant women, infants, children, and young families, which must include governmental policies and programs. As pro-life advocates, we Catholics must resist reflexively opposing such measures simply because they may not align with the current thought of our preferred political party. Our Catholic faith should relativize and subordinate everything else to itself.Kenneth Craycraft, “Abortion Politics and Practice After Roe,” Catholic Telegraph
A “pro-life Marshall plan” is needed because law is downstream from culture even as it is upstream of future culture. Family culture and family law must mutually assist the restoration after Roe-and-Casey.
Family life: Motherhood, fatherhood, childhood. The Roe-and-Casey regime has trained the entire political spectrum well to fear fertility for family reasons, to fear motherhood for career reasons, to fear fatherhood for financial reasons, to fear virtue for no good reason.
At the same time the pro-life movement’s many critics regard it as not merely conservative but as an embodiment of reaction at its worst—punitive and cruel and patriarchal, piling burdens on poor women and doing nothing to relieve them, putting unborn life ahead of the lives and health of women while pretending to hold them equal.
To win the long-term battle, to persuade the country’s vast disquieted middle, abortion opponents need models that prove this critique wrong. They need to show how abortion restrictions are compatible with the goods that abortion advocates accuse them of compromising—the health of the poorest women, the flourishing of their children, the dignity of motherhood even when it comes unexpectedly or amid great difficulty.Douthat, “The End of Roe is Just the Beginning,” New York Times
It is nearly ubiquitous, from nutpicking tweets to brainpicking thinkpieces, to speak of “the mother and child” or “the pregnant person and fetus” or some other descriptor of that procreative pairing. That focus, at times fairly and eloquently and at other times detrimentally, has received its due and will continue to do so.
Yet it seems that the Roe-and-Casey regime has worked itself in so deeply that fathers and men are as absent from our descriptions of the problems surrounding the perceived need for abortion as they are present to their origins. (Douthat’s op-ed mentions fathers zero times.) For it is a private affair, between the woman and her doctor—between the woman and the functionary, preferably conscience-less representative of technical power. Cut out and evacuated from this private affair are the persons involved, the persons required for procreation, a generative relationship ordered towards not a private good but the common good of the family.
It is therefore fathers too who can no longer be absent from this issue, it is men also who cannot be silenced. Fathers must care for the truth about the words used to describe the mothers of their children, show concern for the soundness of the arguments defending the dignity of their daughters and sons, be vigilant in public life and fervent in the proclamation of religious truth about the transcendent ends and goods of marriage and family. It is men and fathers who must stand up for the rights of working women and mothers, it is men and fathers too who must take their business and labor to markets that support the good of families.
* * *
Roe-and-Casey constitutional geocentrism was never true. Yet a successor theory must still recover and account for the same data inherited from the old paradigm. The areas of rhetoric, argument, science, law, politics, religion, economics, and a family’s life and dreams are still the planets whose true motions must be given a different center, now that the old focal point used to calculate their action and reaction is gone.
For argument, debate, and ideas are the forms and abstracts of deeper cultural forces at work. “The pro-life goal has been to make sure that unborn children are protected in law and welcomed in life. Our tactics in advancing that goal will have to adapt to the happy new circumstances” (Editors, “A Stain Erased,” National Review). Perhaps the deeper history of the movement itself could be a guide.
The need to adopt new tactics might even provide the chance to recall the true meaning and breadth of the overall strategy, so long distorted by Roe and Casey. What is at stake in the law? Should a federal abortion ban be pursued? Some are hopeful: “Dobbs shows that a majority accepts as sound all the main premises needed in future litigation to protect unborn babies from abortion just as if they are constitutional persons.” (Bradley, “Dobbs Decision: A Monumental Moment,” NCRegister) Others agree; others do not.
Dobbs has returned the issue to the states. Instead of fixating on the constitutional geocentrism of Roe and Casey, efforts can now be diversified and strengthened at a more local level in a manner condign to the propriety of the places in which we live. True propriety of place, for families and communities, is necessary to attain a fully human and integral ecology. Families (mothers, children, and fathers) must be “supported into life”, the “crisis of crisis pregnancies” averted; legal strategies must be refashioned; the interconnections of participated evil in our society redressed, and national division repaired:
With malice toward none, with charity for all, with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in, to bind up the nation’s wounds, to care for him who shall have borne the battle and for his widow and his orphan, to do all which may achieve and cherish a just and lasting peace among ourselves and with all nations.Lincoln, Second Inaugural Address
The cultural “wars” must be re-envisioned as restoration, its warriors redeployed as proponents and brokers of peace. The end of Roe and Casey is a necessary first step, for it lets the truth out into the open. To not be set free by the truth is to rest in discord, division, and to settle for violence. And this is unacceptable in a house so already divided.
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* Critics also insist that Justice Thomas was hypocritical when, in lining up a range of cases that could be reconsidered given their reliance upon substantive due process (ibid., p. 3), he failed to list Loving v. Virginia, which struck down laws prohibiting interracial marriage. It seems that both Loving’s central reliance upon the principle of equal protection of the laws and its understanding of marriage antecedent to reinterpretation by the very means of the substantive due process Thomas calls into question might partially explain Thomas’s apparent oversight. (back to text)
UPDATE: For an incisive analysis of the logical versus the moral implications of Thomas’s critique in Dobbs, see Vermeule’s “What the Left Gets Right About Dobbs,” Compact.