“Abortion and the Court Without Scalia” -Prof. Arkes in The Catholic Thing

On March 2, the Supreme Court heard oral argument in Whole Woman’s Health v. Hellerstedt, a case concerning the constitutionality of new health and safety regulations on abortion in Texas. Amidst the backdrop of this, the first major case since the passing of Justice  Antonin Scalia, Prof. Hadley Arkes calls for pro-life lawyers and judges to review their strategy in defending the unborn in a regime which still protects the practice of abortion.  In a piece for The Catholic Thing, Prof. Arkes argues abortion must be considered for what it is: not an inalienable right which is similar to other kinds of operations, but a horrifying procedure which takes an innocent life. Some excerpts:

“The case of involved a scheme of legislation in Texas that enhanced the regulations of safety for facilities in which abortions were performed. Of this scheme, two points were being contested: (a) a requirement that the people practicing these surgeries had admitting privileges to a hospital within thirty miles of the place where the abortions were being performed, and (b) that abortion clinics come under the same, more exacting regulations that are applied to other ‘ambulatory service centers.”

“The Solicitor General of Texas pointed out that the decision on abortion still rested in the hands of the woman mulling over the surgery. But the jural genius would now be concentrated on the question of whether the need to drive as much as 150-200 miles and possibly stay overnight in a motel was just too much of a discouragement.”

“The question never asked, of course, is whether any of these requirements were too much of a burden for people who were setting out to kill an innocent being for the sake of their own private interests.”

“And yet we may ask: Why need the advocates before the bar make themselves complicit in this charade? Why would it not be possible to speak in this way:

“May it please the Court, the case law on this subject cannot admit the possibility that the life extinguished in abortion has never been anything less than human and innocent from its first moments.  that premise cannot be woven into our case law as it now stands.  But the strictures of our positive law cannot compel people to blind themselves to the truths taught in every textbook on embryology, or to bar themselves from thinking or speaking the truth that everyone knows about the small lives being poisoned or dismembered in these surgeries.  I reserve the right to speak that truth to myself even as I take up this argument in the only language this Court will now hear.” 

Read the whole piece “Abortion and the Court Without Scalia” here.