Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Thursday, August 26, 2004

Thoughts re Rick's Comments

I'm grateful to Rick for his thoughtful comments on my recent America essay. I'm in fundamental agreement with everything that he's said in his posting. My reference to abortion as a matter of constitutional right was meant only to note the current state of constitutional doctrine and the limits it places on what pro-life public officials are capable of doing through legislative efforts. As a matter of constitutional jurisprudence, I would agree with Rick that our current constitutional law on abortion is a profound mistake, and, given the gravity of the moral issue involved, it is a profoundly tragic mistake. I would certainly welcome the appointment of judges who are open to permitting legislatures to meaningfully regulate abortion. Our hope for such a doctrinal development, though, has to be tempered by the recognition that predicting what judges will do once they are appointed to the federal bench is not an exact science. Moreover, I think the way in which both parties at the national level can make a judge's position on Roe a litmus test can itself polarize and paralyze the appointment process in ways that may have detrimental implications for the common good. In a related vein, central as the abortion issue no doubt is, it is only one aspect of the courts' business, and it's possible that a judge who might look like a sure vote to correct the Court's mistakes in Roe and Casey might distort other areas of doctrine. Working for a change in constitutional doctrine is certainly an essential part of a pro-life jurisprudential strategy, but in light of the uncertainties that surround the prospects for such doctrinal change anytime soon, I simply think it's crucial to think about what it means to be a pro-life public official in a broader moral-political-legal context.


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