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NRL News
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Supreme Court and Reasonable Hope Editor’s note. Fr. Richard John Neuhaus will speak at the banquet that closes NRLC 2007, the three-day convention which will take place in Kansas City June 14–16. He is president of the Institute on Religion and Public Life and editor-in-chief of the institute’s publication, First Things: A Monthly Journal of Religion, Culture, and Public Life. In a survey of national leadership, U.S. News and World Report named Fr. Neuhaus one of 32 “most influential intellectuals in America.” In a 2005 cover story, Time magazine named Fr. Neuhaus one of the most influential religious leaders in America. The following excerpt is from an entry Fr. Neuhaus wrote for the blog that appears on the FirstThings.com web site. Justice Kennedy’s 5–4 majority opinion is notable for accenting the society’s legitimate, indeed imperative, interest in protecting innocent human life. That interest had received lip service in Roe and its judicial offspring, but this time it is an operative, albeit not a controlling, concern. President Bush hailed Carhart as bringing us closer to the goal of “a society in which every child is welcomed in life and protected in law.” A very little bit closer to a goal still painfully far away. ... It seems to me that there is another question that should be pretty much settled now. Back in the 1990s, there was considerable argument among pro-life leaders about the wisdom of focusing on partial-birth abortion. It was a strategic decision. Pro-lifers opposed to it contended that partial-birth abortions accounted for only a few thousand abortions per year, and getting rid of that procedure would do nothing to protect the million and more other children killed by abortion each year. This was another instance of the familiar disagreement over the advocacy of incremental changes or frontal challenges to the abortion regime of Roe. Obviously, one would prefer a frontal challenge that would result in the overturning of that infamous 1973 decision. But it will not work, at least not now. Quite apart from specific decisions of the Court, the focus on partial-birth abortion has been a great success in educating the public to the reality of unborn life and the horror of abortion. In the dissent, Justice Ginsburg objects that the moral repugnance triggered by partial-birth abortion is true of all abortions. Precisely. ... The Ginsburg dissent is right: In previous decisions, especially those dealing with abortion, the Court said there was no place in law for the “imposing” of moral judgments. Carhart, by way of contrast, evidences a respect for moral discernment, especially as expressed by the legislature. Every law of consequence reflects a moral judgment. The abortion license imposed by Roe previously enjoyed a most particular exemption from moral inquiry. Carhart quite clearly says that that exemption is now expiring. It is nonetheless the case that, as Mike Uhlmann points out [elsewhere on the FirstThings.com blog], the ban on partial-birth abortion leaves the abortion license itself in place. The only question addressed is whether the ban is an “undue burden” on the exercise of the license. As Ginsburg delicately says of the ban, “The law saves not a single fetus from destruction.” The Kennedy opinion is careful to point out that, even in cases when the child has reached full term, abortionists can avoid violating the ban by giving the baby an injection that kills it and then removing the corpse in pieces. So it is true that the unlimited abortion license, defined as the right to kill a baby at any point before live birth, remains unlimited. It is also true, however, that the majority opinion is careful to say that the unlimited license rests on existing abortion precedents of the Court. Kennedy underscores that the present decision does not overturn those precedents. But Ginsburg is, from her perspective, rightly alarmed that the opinion is very careful not to affirm those precedents. If it had affirmed them, it would not have been a majority opinion, since Justices Thomas and Scalia once again make clear in their concurring opinion that they believe the abortion license is without foundation in the Constitution. … In reporting Carhart, the New York Times lede declared that the Court “reverses course” on abortion. That is true in a limited sense. Justice Ginsburg is correct about the differences between this decision and prior decisions in which the Court upheld pitifully minor regulations in the exercise of the abortion license. To be sure, there are no guarantees, but Carhart gives reason to think that Ginsburg’s fears may be vindicated and the abortion regime may be on its way, a painfully slow way, toward extinction. While the carnage continues, there is no place for false hopes or counsels of despair. It is not, I believe, a false hope to think that this week’s decision has brought us a little closer to the goal—never to be realized fully within the limits of history—of a society in which every child is welcomed in life and protected in law. There will always be some abortions, as there will always be other forms of homicide, along with rapes, child abuse, and similarly grievous crimes. But the law—in its pedagogical, protective, and punitive functions—can discourage and prevent such great evils. Carhart has made that prospect a little more visible on the still distant horizon. |