In an essay titled, “Another Pro-Life Victory?,” published at First Things, Professor Hadley Arkes probes the logic of the recent Supreme Court ruling in NIFLA v. Becerra. In doing so, he finds the conservative justices achieving yet another laudable outcome this term: a victory for the right of pro-life pregnancy centers to refuse to comply with a California law that mandated the advertisement of state-funded free or “low-cost” services, including abortion, in the workplace. He finds a deeper incoherence in the logic of the conservative cohort, namely their longstanding commitment to a positivist approach to cases arising under jurisprudence concerning abortion. This stance–which refuses to even gesture toward the substantive disagreement at hand concerning the rightness or wrongness of abortion being classified as any other “medical procedure”–can provide no solid foundation, Arkes argues, for a jurisprudence that is adequately tethered to a moral account of our rights.
Excerpts from “Another Pro-life Victory?”:
“Many hope that the decision in NIFLA will have an influence beyond clinics on abortion. The holding may offer protection to people who are put upon to obey the new political orthodoxies of same-sex marriage and the homosexual life. It may plausibly cover florists and bakers who find their freedom of expression compromised, say, by the demand that they perform their arts and lend their endorsement to same-sex marriage. The logic of the NIFLA ruling extends, then, well beyond abortion. But the irony is that the opinions in the case are quite bereft of any premise or reasoning that would help to plant or even support the pro-life argument.”
“Justice Scalia himself said that if legislatures were to make abortion thoroughly legal, he would be obliged as a judge to enforce that law. The conservative justices have never found in the Constitution, or in the principles of moral reasoning lying behind the Constitution, any ground for placing constitutional protections on the child in the womb. The classic conservative response to Roe v. Wade has held that we must remove the “constitutional right to abortion” and send the matter back to the states. Scalia was also clear that state legislatures had a traditional authority to shape the morals of the local population, as by barring prostitution and lewd entertainments. He was not entirely convinced that any objective moral truths lay behind those policies and justified them. He was convinced mainly that local majorities had authority to make judgments that reflected the moral sentiments of their communities. But if we follow this reasoning, then the policy chosen by the State of California in NIFLA simply reflected the moral judgment of that community—in this case, that abortion is a thoroughly legitimate medical procedure, and that women should suffer no discouragement from choosing it. That would have been quite enough to sustain the law. But the even more sobering recognition is that nothing in the majority holding in NIFLA would be altered even if Roe v. Wade were overruled tomorrow. By the reigning consensus in conservative jurisprudence, the question would be returned to the states and the Court would presume in favor of the “value judgment” enacted by the California legislature.”
“When Roe v. Wade was decided, the dissenting opinions by Justices Rehnquist and Byron White were grounded in the mechanistic, positivist argument that abortion was nowhere mentioned in the text of the Constitution. Neither justice drew upon the rich briefs offered in the case, weaving embryology with principled reasoning and dealing with the very substance of abortion. And so we may be moved by NIFLA to wonder now: Have the conservative judges become so settled within the premises of that argument, so anchored in the positive law, that they can no longer see beyond it?”