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.

Monday, July 2, 2018

A Pro-Life Ripple in a Sea of Pro-Choice Academic Commentary

With the retirement of Justice Kennedy from the Supreme Court, law professors have been speculating how constitutional law may change with a new member of the Court. At the forefront of concern for many is the continued viability of Roe v. Wade, the decision that announced a nearly-absolute right to abortion of a pregnancy.

Given the ideological and political homogeneity of law professors generally and of constitutional law professors in particular, online discussions not surprisingly have been dominated by those who bemoan this possibility. Professorial posts typically frame the question in stark terms between, on the one hand, support for women's rights and gender equality, and on the other side, disrespect for women or even the design to undermine the progress of women toward professional and cultural equality. Indeed, on a general “listserv” of constitutional law professors, posts tend to assume that everyone is on the same page, to the point of outlining the strategy for preserving abortion rights by legal and political action and cheering the various advocates and organizations that champion “reproductive rights.” That anyone in the legal academy might disagree or that another value – such as protection of unborn life – might play a role in the debate appears not to have occurred to many or at least is seldom acknowledged.

While I have become mostly a reader and not poster on internet discussions in recent years, I was unable to resist this time, given the blessings of life that have washed over me recently, as explained below. And so into the "conlaw" professors’ discussion, I interjected this message last week:

Friends, just as a reminder, lest this become a pro-choice echo chamber as we see too often on abortion in the legal academy, tens of millions of Americans regard protecting the life of the unborn to be the most important civil rights movement of our time.  One could as readily list many local pro-life organizations, simultaneously compassionate and passionate, who are dedicated to helping pregnant women avoid the Faustian bargain of abortion.  I have had the opportunity to observe and provide support to families involved with these organizations, who have sacrificed greatly to bring into their homes new-borns of all races, backgrounds, and disability status.

More than half-a-century ago, my 15-year-old birth mother placed me for adoption after she had broken up with her high school classmate who was my birth father.  That loving choice was the spark of multiple blessings to my adoptive family, including my parents who could not have children of their own and obviously to me in the opportunities I have had.  Within just the past two weeks, I’ve learned the identity of my birth mother (from her participation in one of the DNA companies).  That in turn has opened doors for me now to learn of five more sisters and two more brothers, as well as more than a dozen nieces and nephews.  In the past two weeks, the joyful exchanges by phone, on email, and through Facebook have been overwhelming, moving me to tears nearly daily.  I know I will be blessed by building relationships now with my larger family, unknown to me for nearly all my life.

While I genuinely do not believe that any member of the list or anyone who has posted has anything but positive motives, everyone should understand that the predominant and apparently unquestioned assumption that this issue is only about the birth mother and not about the unborn child is distressing and even horrifying to many of us.  Again, I know that no one intends to send the message this way, but it is difficult at times for someone like me not to perceive it as suggesting that it would have been better to have liberal abortion laws in the early 60s so that I and others like me could have been disposed of as medical waste rather than carried to birth.

As selfish as it may be, I will insist that I have just as much a right to be alive as anyone else.  And I cannot in good conscience be silent and fail to speak up for those still in womb who deserve the same rights and blessings that have been mine.

I am not sanguine that Roe v. Wade truly will be overruled, whatever the makeup of the Supreme Court.  But if it were, that would not prevent a single abortion in this country.  Instead, it would mean that all voices – including those of us who speak for the unborn – would have to be listened to in a public debate that is no longer restricted to lawyers and judges.

*             *             *

The response to such a message in the legal academy tends to fall into a regular pattern. One or two hearty souls may post a supportive endorsement or highlight a dissenting voice. Several more will contact me offline to thank me for the contribution. But the dominant pro-choice academic crowd will, mostly, suddenly fall silent. A post such as mine is much more likely to serve as an end to the thread, rather than provoking a more engaged and balanced discussion.

I cannot deny that this conventional approach among law professors of avoiding or ignoring pro-life voices can be discouraging. Instead, today, I want to emphasize that there are significant exceptions to this pattern. For example, on the occasion of the post above, one participant responded immediately to insist that, in the pro-choice circles she works within, the question of life is not neglected. As another example, on a prior occasion, a pro-choice law professor engaged me in a positive and respectful exchange, both on- and off-list. For me, and I believe for her, the exchange resulted in greater understanding, respect, and even affection. So rather than seeing that the academic glass is half-empty (alright, perhaps 95 percent empty), I choose to be heartened by the exceptions that display the possibility of civil engagement across political lines in our fractured society.

As I said in the above post, I think it doubtful that Roe v. Wade will be overruled any time soon, if at all. Instead, I predict that bold efforts to outlaw abortion in a state or two will be quickly shot down in the lower courts, after which the Supreme Court will decline to grant further review. But even the possibility that abortion may be downgraded from a near-absolute constitutional right to a debate about morality and social justice may open the door to greater attention in even elite and academic circles to the multiplicity of concerns and values raised by abortion – including both gender equality and human life. As a part of the discourse, hearts and minds may be changed, even by degree, even if the law is not. Any movement away from worshipful reliance on a judicial decree may provide breathing room for a culture of life.


Sisk, Greg | Permalink