The James Wilson Foundation on Natural Rights and the American Founding

“Is Conservative Jurisprudence Renouncing Moral Reasoning?”- Professor Hadley Arkes in The Catholic Thing

by James Wilson Institute on February 10, 2023

In this essay for The Catholic Thing and featured on Anchoring Truths, Professor Hadley Arkes argues in response to Professor David Forte that the failure of the majority in Dobbs to resolve the legal status of unborn life is indicative of a broader reluctance on the part of the conservative legal movement to consider the fundamental moral questions that underpin the legal debate surrounding abortion. In support of this, he cites how Justice Alito stopped short of affirming the humanity of unborn life in order to placate Justice Kavanaugh, who did not adopt a position on that question in his own writing. Rather, the Court opted to delegate the question of abortion (and therefore the question of fetal personhood) to the legislative process and the voters.

Below are some excerpts. Read the whole article here.

“What Professor Forte does not question was that the Court deliberately withheld that recognition of the child as a human being. That point was made decisively with the concurrence by Justice Kavanaugh. The Justice remarked there that “many pro-life advocates forcefully argue that a fetus is a human life’ – forcefully argue, as though there has been no long-settled, empirical truth on this matter, found in all of the textbooks of embryology. In other words, in this mode of conservative jurisprudence, the judges must affect not to know the plainest objective truth that bears on the practical judgment here – that judgment is to be reserved perhaps to others, in elective office.”

Since there is no truth to be known on these matters, it is to be left to the ‘value judgments’ of voters and legislators to gauge how much value they would give to recognizing the human standing of the child in the womb. Professor Forte was right: Kavanaugh’s concurrence establishes beyond doubt that the conservative majority did not recognize the human standing of the child, for if they had, they would have lost, in Kavanaugh, that fifth vote to overrule Roe v Wade. That was the price that Justice Alito had to pay for that fifth vote. But that concurrence damaged the majority opinion in other, telling ways.”

“The lawyers for Texas in Roe v Wade cited judgments, even by judges in liberal New York State, affirming the human standing of the child in womb as the ground for sustaining the laws on abortion. And now are we to be told that something in their theory of jurisprudence bars conservative judges, dealing with abortion, from the recognizing the most decisive objective truth that bears on their judgment?”

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