Imagine: no Roe v Wade

As the nine justices of the Supreme Court are currently preparing their briefs for their decision later this year on the Affordable Care Act and Mandate of the Department of Health and Human Services, it may be felicitous to consider another possibly similar scenario involving Roe v Wade (1973).

Christopher Ferrara, current president and Chief Council of the American Catholic Lawyers Association, in his much-neglected but highly-illuminating book, The Church and the Libertarian (2010), offers "A Thought Experiment" in changing history:

Let us suppose ... that tomorrow the five "conservative" Catholic justices of the United States Supreme Court (we will exclude Justic Sotomayor) come to their senses and join in a majority opinion overruling Roe v. Wade. Let us suppose that this opinion holds that the Fifth Amendment protection against the deprivation of life and liberty without due process of law, applied to the several States via the Fourteenth Amendment, extends to life in the womb. Let us suppose further that the opinion also holds that the Fourteenth Amendment itself, which provides that no State shall "deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws" applies to persons in utero. And let us suppose that in support of this conclusion the Court notes that feticide is already a crime in 37 states and that even federal law recognizes a child in utero as a legal victim if injured or killed during the commission of specified violent crimes. (This is a perfect indication of the insane moral incoherence of modern, post-Christian legal codes.) Finally, let us suppose that the five Catholid justices end their opinion with this astonishing declaration:

The Constitution was not drafted and ratified in a moral or theological vacuum. The Framers lived in a society whose common law tradition still recognized the Law of God, and in particular the "divine positive law" of the Ten Commandments, as the ultimate source of human positive law. The classic commentaries of William Blackstone place this historical conclusion beyond serious dispute. The justices of this very Court take an oath to God, and we deliver our opinions while sitting beneath a frieze depicting Moses the Lawgiver holding the tablets containing the Commandments.

We recall here Dr. Martin Luther King's historic declaration in his "Letter from a Birmingham Jail" in the midst of the civil rights movement of the 1960s. "One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that 'an unjust law is no law at all.'" For too long, the legal distortions created throughout the fabric of this nation by our unprecedented decision in Roe have placed conscientious Americans in the same position as Dr. King, writing from his jail cell. Indeed, Roe has given rise to a new civil rights movement and concomitant social turmoil that show no signs of abating nearly forty years after Roe divided this nation in a way not seen since the abolition movement that followed the everlasting embarrassment of our decision in Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1857).

But beyond a mere appeal to history, which provides the context for our textual interpretation, we hold today that the Consitution's morally freighted terms, "person," "life," and "liberty" cannot be considered apart from the same ultimate source of moral authority that Blackstone, our nation's common law tradition, and Dr. King had in view. As this Court observed in Zorach v. Clausen, 343 U.S. at 314, "We are a religious people whose institutions presuppose a Supreme Being." Men are creatures of that Supreme Being, bound by His law and accountable to Him for any human law that contravenes the natural law He has written on our hearts. Roe is such a human law. We overrule it today, not only in the name of our nation's history and tradition, but in the name of God.

What would happen upon the issuance of such an opinion? The mass media would of course erupt in an unprecedented storm of outrage. There would be calls for impeachment hearings to remove all five Catholic justices. But then, how could such hearing be conducted? What would be the impeachable offense -- that the five justices had violated their oaths to God by citing God's law in their opinion? Who in the Senate would be foolhardy enough to lead a prosecution of five sitting Supreme Court justices based on their adherence to God's law, supported moreover by references to history, tradition, an Saint Martin Luther King?

Consider the galvanizing effect such a decision would have on a nation whose population is still overwhelmingly at least nominally Christian. Surely, in response to the liberal onslaught, conservative talk radio and TV would hail the justices as heroes, as would evangelical Christian leaders and even many members of the ordinarily craven United States Conference of Catholic Bishops. The Pope would hail the decision, emboldened by the courageous witness of the justices, and Catholics around the world would join the Pope. Even certain orthodox Jewish leaders who have long allied themselves with Christians on moral and social issues would lend support to the justices as they come under attack by the media jackals and Congress. And what could the President do? Order up a firing squad? Or would he not be reduced to denunciations having no legal effect on the life tenure of the five justices, getting no further than FDR when he tried to pack the Supreme Court in order to prevent it from declaring his New Deal programs unconstitutional? The justices would hold on to their seats and the "separation of powers" that was supposed to characterize the American Republic would receive a tremendous vindication.(Ferrara, pp. 271-273)

Imagine! Unlike John Lennon's silly 1971 song by that title, which portrays a wistful fantasy Laputa-land with no relation to historical reality, Ferrara's imagined world is one tangibly connected to reality, history, tradition and legal precedent.

Related: Richard Aleman, "The Church and the Libertarian: A Review," The Distributist Review (March 14, 2011).