The James Wilson Foundation on Natural Rights and the American Founding

“The Supreme Court: Evading Fetal Pain” —Prof. Hadley Arkes in The Catholic Thing

Writing in The Catholic Thing, Prof. Hadley Arkes discusses the reluctance of the Supreme Court to address fetal pain by failing to grant certiorari to a case challenging an Arizona law.

Some excerpts:

“The Supreme Court refused to review the decision of an appellate court that struck down the statute passed in Arizona to bar abortions after twenty weeks. That does not mean that the Court will not yet sustain a statute of that kind, passed in another state.  It requires the vote of four justices to grant certiorari, or review a case, and there are four solid pro-life votes on that Court. That meant that even one or two or more of the pro-life judges thought that this was not the moment to test this statute with their colleagues.”

“But then why wouldn’t four pro-life justices on the Supreme Court vote to review this statute?  My own surmise was that judges might have plausibly feared that Justice Anthony Kennedy, the swing judge, could have taken this line: Legislation restricting a “constitutional right” should be ‘narrowly tailored,’  and abortion is now a deep constitutional ‘right.’ If the concern, he might say, was really with the pain, then the legislature could have sought to deal with the pain without barring the abortion. The legislature could simply have required an anesthetic to be administered.”

“But we are always concerned that if we barred abortions, say, after ‘viability’ or later in pregnancy, we would foster the glib assumption that the baby, at that point, is somehow more ‘human.’ The point of caution for us is that the pro-lifers focus on the kinds of restrictions that cannot be detached from the recognition of the child we are seeking to protect.”

Read the whole piece here

Law and liberty cannot rationally become the objects of our love, unless they first become the objects of our knowledge.
— James Wilson, Lectures on Law, 1790