The James Wilson Foundation on Natural Rights and the American Founding

The Court Sets Off Tremors – Again: Hadley Arkes in The Catholic Thing

by James Wilson Institute on June 2, 2021

In his column for The Catholic Thing, JWI Founder and Director Prof. Hadley Arkes comments on the Supreme Court decision to hear Dobbs v. Jackson Women’s Health Organization, a case about a Mississippi law that bans abortion after 15 weeks of pregnancy. Prof. Arkes speaks to the motivations behind the outrage from the pro-choice side over this case. Even if the conservative majority on the Court decides to not overturn Roe v. Wade “in a single, major stroke,” any decision that undermines the viability precedent held in Planned Parenthood v. Casey represents a grave threat to the pro-choice position. Overturning that precedent would instantiate a new principle in the law, one that declares the unborn child has rights and is entitled to legal protection.

Some excerpts from the piece:

“There is a difference, then, of only about eight weeks, and yet that has been enough to stoke the fears and warnings that Roe v. Wade could now be overruled.  But once again, that shift in eight weeks does not mark anything different, anything less than human, in the baby being aborted.   Nor would it make a difference if we traced matters back 15 days, or even 15 or 20 weeks back to the point in the pregnancy when the very same being was an embryo.   She has never been anything less than human, and never merely a part of her mother’s body.”

“But the Court has firmed up “viability” as the critical marker, for as the judges persist in saying in a convention of imbecility, the State may act then to protect “potential life.” Potential life? A pregnancy test marks the fact that something is indeed alive and growing in the womb. If there were not, an abortion would be no more apt than a tonsillectomy.  But if there were something alive and growing there – and not a tumor – it could be nothing other than a child in the making. That embryo may be a “potential outfielder” or “potential stockbroker,” but he has never been merely a “potential human child.”

“For they see the principle that lies at the heart of thing:  once the child in the womb is recognized as a human being, on a plane no less than theirs, with a claim to the protections of the law, there is no obvious marker, in age or development, that separates that child from the rest of us. In other words, the fierce defenders of Roe see their whole position unraveling, with no stopping point.”

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