Reflecting on the recent 8th Circuit ruling that calls for the Supreme Court to reevaluate its abortion precedent, Prof. Hadley Arkes discusses “Fetal Heartbeat and the Judicial Imagination” in The Catholic Thing. Some excerpts:
“These Bush appointees, with their evident pro-life sympathies, were making an earnest plea to reconsider the jurisprudence on abortion; but they were doing that after they had explained that the reigning doctrines of the Court compelled them now to strike down this bill barring abortions after the detection of a fetal heartbeat. In that judgment, I’m afraid that these men, of fine repute, revealed the cardinal points of emptiness in what passes these days as ‘conservative jurisprudence.’”
“The stumbling block was the matter of ‘viability.’ The Supreme Court has taken viability to occur around 24 weeks of pregnancy. And yet, not so long ago, that figure was thought to be around 28 weeks. The conservative judges here had the wit to ask, ‘How is it consistent …that the same fetus would be deserving of protection in one year but undeserving of state protection in another…?’ The Supreme Court, they said, had ‘tied a state’s interest in unborn children to developments in obstetrics not to developments in the unborn.’ Or to put it another way: The Court had made the definition of a human being hinge on the current state of the art in incubator science.”
“My hunch is that the conservative judges came through their hearings on confirmation pledging to respect the rulings of the Supreme Court on abortion, and abjuring the temptation to become—gasp!—activists! That is to say, they pledged to purge from themselves the moral imagination and nerve shown every day even by their dimmest liberal counterparts, and even forgo the more demanding reason they practice in other parts of their lives.”
Read the whole piece here.