Five words

A few days ago, Professor Cass Sunstein, now of Harvard Law School, published an opinion essay in The Boston Globe [HERE] on the fate of Roe v. Wade. The first five words of his piece tell a great deal: “The right to reproductive freedom…” In short, Professor Sunstein raises his concern in this published opinion that the fate of Roe and other unnamed but “countless principles in constitutional law” are hanging in the balance if the Republicans win. Nothing is inferred about what would happen should the Democratic party prevail in the upcoming presidential election. In fairness to Professor Sunstein, he is self-identified as an unofficial advisor to Senator Obama.

As the Mirror of Justice is a web log dedicated to the development of Catholic legal theory and is not a forum for political commentary by itself, let me confine my remarks to Sunstein’s juridical claim about “the right to reproductive freedom.” He explains that Roe is vulnerable to being returned to the individual states and then to being “overturned” judicially or legislatively. But this, in his estimation, is unwise because Roe has become a part of the legal and political culture of the United States for thirty-five years. In making this claim, he appears to suggest that Roe, in spite of its legal insufficiency that he acknowledges (Roe “was far from a model of legal reasoning”), cannot be altered even though it can be criticized. Well, does not criticism lead to a reexamination of laws that exist but ought not to?

Professor Sunstein competently puts forth the stare decisis argument for preserving Roe. But, in fact, judicial precedents that are stare decisis have come and gone in our nation’s legal history. I again raise a question that I have posed before: what makes Roe inviolable knowing that its legal reasoning is deficient? Surely it is not because it saves human life. His argument that “American constitutional law is stable only because of the principle of stare decisis” is also lacking because it is patent that for over two centuries precedents that were wrongly conceived should not stand but have whereas some that were well formed were overturned by the stroke of a fifth justice’s pen.

Sunstein gets to the heart of the matter quickly. It’s not about overturning precedent, its about disruption of a thirty-five year old culture of death to which powerful political groups are inextricably attached but that has not only minimized but dismissed the lives of forty million young Americans. As I have pointed out previously [HERE], the alternative to Roe v. Wade does not have to be “jail sentences and criminal fines” as Professor Sunstein contends but needs to be remedial legislation that saves mothers, fathers, and, yes, their yet-unborn children. His claim that a decision that has been allowed to persist for three and one half decades cannot be overturned because “an established domain of human liberty” will be put into turmoil is unpersuasive. Turmoil for whom? Surely not for those whose lives will be snuffed out; and sure not for the mothers who may be legally entitled to kill their children because they have not been made aware of alternatives that can and, in some cases, do exist right now.

Again, as I have argued in the past, we as a nation—including its lawyers—can do a lot better for all whose lives are threatened by the political and legal issue of abortion. Sadly, Professor Sunstein and like minded individuals have been satisfied that only some lives are threatened should the Roe precedent be compromised, but this belief, in fact, is not true.

RJA sj