Writing in The Catholic Thing, Prof. Arkes critiques the mainstream conservative jural response to abortion. Only when judges and legislators are past the empty formulas of what is considered “conservative jurisprudence” can they deal with the moral substance of the issue.
“The drift of opinion [on the supposed right to abortion] has also exposed the poverty of ‘conservative jurisprudence’ as the most serious critique that conservative lawyers and judges could mount in explaining the wrong of Roe v. Wade in our constitutional order. As the argument has run, the Constitution says nothing about a right to abortion. Therefore, there is no ground on which federal judges can proclaim a new federal right, embedded in the Constitution, and sweep away the laws on abortion in the States. The remedy then is to overturn Roe, and return the matter to the political arena, to legislatures and to the people who elect them.”
“‘Conservative jurisprudence’ railed against Roe v. Wade for the sin of moving beyond the text and engaging in moral reasoning about the substance of the law on abortion in Texas. It was bad moral reasoning, quite detached from the facts of embryology and the discipline of principled reasoning. But in the genius of conservative jurisprudence, the best way to avoid bad moral reasoning is to avoid moral reasoning altogether about the moral substance of the law – as though the law, and the enterprise of judging, could indeed be detached from reasoning about the things rightful and wrongful, justified or unjustified.”
“Once the sense of the unchallengeable rightness of abortion has permeated the land, we are past the point of finding the remedy in overruling Roe. The remedy can only come through a series of measures, passed in Congress and the States and engaging, step by step, the moral assent of the public – that it would indeed be rightful, say, to stop the killing of babies with a beating heart.”
Read the whole piece here.