In anticipation of the Dobbs v Jackson Woman’s Health Organization oral argument, JWI Founder and Director, Hadley Arkes opines on the real possibility the Supreme Court issues an opinion reshaping its jurisprudence on abortion in the print edition of National Review. Arkes, joined by Robert George, Ramesh Ponnuru, Michael Brendan Dougherty, and Carter Snead, contributed entries to a noteworthy symposium on “why Roe must go.”
But infanticide could cease being a big deal only if homicide itself were no longer a big deal. And yet homicide cannot cease to be a big deal unless the “human person” himself has ceased to be that creature who elicits our special concern and reverence as a rights-bearing being, especially as seen through the lens of our religious tradition. As Lincoln had it: “Nothing stamped with the Divine image and likeness was sent into the world to be trodden on, and degraded, and imbruted by its fellows.” But now we find judges and politicians feigning deep puzzlement over the question of who exactly constitutes a human being and when that life begins. In a telling contrast, James Wilson, among the American founders, saw that if we have “natural rights,” they must begin as soon as we begin to be. Which is why, as he said, the law casts its protection over the unborn child “when the infant is first able to stir in the womb.”
“The Republicans have become, then, through the years, ever more cohesive on the pro-life side; but in curious contrast, it is the conservative judges who have been obtuse. They have not yet even caught up with the rich, substantive argument that had been made by the lawyers in Roe v. Wade, when the Court first installed this new “right” to abortion. The lawyers for Texas had drawn on the most updated findings in embryology, and they made the case that the child in the womb has been nothing less than human from its first moments; that the embryo or fetus is not really a part of the mother; and that the laws on homicide must ever be indifferent to the size and age of the victim. In this way, the lawyers sought to show that the legislature was amply justified in casting the protections of the law over the child in the womb. And yet no dissenter in Roe — and no conservative justice since then — has drawn on that compelling brief.“
Read the whole entry here.