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.

Friday, October 31, 2008

A Further Response to Cafardi, Kaveny and Kmiec (Part 1) –The Purported Inability to Overturn Roe as a Self-Fulfilling Prophecy

George Weigel is more than capable of defending himself in print, and he recently published an excellent reply (here) to Nick Cafardi, Cathy Kaveny and Doug Kmiec’s response (here) to his original Newsweek essay (here) criticizing self-identified pro-life Catholic support for Obama.  Several MOJ commentators have also usefully contributed to this discussion.  I believe, however, that several points deserve more attention than they have received.  I propose to address these points in this and in two subsequent posts.

Cafardi, Kaveny and Kmiec say that they “have no objection” to efforts to overturn Roe v. Wade, but they clearly see this as a futile exercise.  They assure us that “[t]he legal path has not worked to date, and it may never work.”  They fail to acknowledge, however, how their support for Senator Obama will turn this prediction into a self-fulfilling prophecy.

If Cafardi, Kaveny and Kmiec were honest in their assessment of Senator Obama, they would acknowledge that his pro-choice credentials go far beyond not being “the perfect pro-life candidate.”  He is thoroughly committed to an expansive reading of the abortion license and as president will certainly make appointments to the Supreme Court that will continue to frustrate efforts to overturn Roe and its progeny.

While it is possible that legal challenges to Roe may never succeed, the faith teaches us to be hopeful, and history gives us reason to be optimistic.

It took fifty-eight years to overturn the doctrine of “separate but equal” established by the Court in Plessy v. Ferguson.  So we should not be discouraged that thirty-five years out, Roe v. Wade remains the law of the land.  Like the NAACP’s litigation against state-sponsored segregation, the pro-life movement’s legal challenges to the abortion regime have enjoyed their share of successes along the way, but the path from Plessy to Brown v. Board can hardly be described as a straight line.  (For an excellent source on this matter, see the documentary The Road to Brown).  We should expect a similar winding route from Roe to its eventual reversal.  That the Court is a more politicized institution now than it was in 1954 will make this goal even more difficult to realize, but not unattainable.  Indeed, when the Court says, as it did in Casey, that it must sustain its precedent because it is precedent (and not because of the merits of the original decision), the ultimate collapse of the Court’s abortion jurisprudence can already be glimpsed.

Many point out that the demise of Roe will “only” return the issue to the states.  At this stage the fight over abortion will turn from a largely legal battle to a largely political one.  Still, overturning Roe is a necessary first step in the larger process that seeks to end the practice of abortion in this country.  Cafardi, Kaveny and Kmiec’s support for Obama and (at least implicitly) his pro-choice Supreme Court nominees promises to delay this process for years to come.


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