The James Wilson Foundation on Natural Rights and the American Founding

The Court: Looking for the Low Door under the Wall – Prof. Hadley Arkes at The Catholic Thing

by James Wilson Institute on June 15, 2021

In his column for The Catholic Thing, JWI Founder and Director Prof. Hadley Arkes expresses worry that the Supreme Court might seek to take the easy way out of the ultimate question haunting our jurisprudence: should the Court overturn Roe v. Wade? Prof. Arkes suggests that the Court, under the guise of prudence, may invent a new judiciable standard, ruling that the state has a strong interest in minimizing fetal pain. However, Prof. Arkes reminds the reader that this line, or any conceivable threshold, would be beside the fundamental point: the fetus is a human being from the point of conception and fully deserves all natural rights.

Some excerpts from the piece:

For the Court simply to sustain this statute would be taken as a ‘limited’ decision. And yet, as I wrote last time, this decision would indeed be seen as a move to put Roe v. Wade ‘in the course of ultimate extinction.’ The defenders of abortion will surely treat the decision as, in effect, the overturning of Roe.  The Court may look then for the ‘low door under the wall’: a means of sustaining the statute without setting off alarms.

“The one strand that the Court might latch onto is the issue of pain: The State sought to argue that a limit of 15 weeks stands a better chance of sparing the fetus the excruciating pain of being poisoned or dismembered.”

To uphold the statute out of a concern for fetal pain may be enough to avert a political storm; and yet five of the justices will know that the issue of pain is essentially beside the point.  If a storm will come in either case, they may decide then to end the moral charade and make, finally, the most coherent judgment they can make. But it will be no easy test of prudence.

View the full article in The Catholic Thing here.

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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