I have to confess that when the news broke last night and I read that careful, exhaustive, impressive opinion from Justice Alito, my eye moved to those key points for which I was looking, and there I fell into a mild despair. For the Justice preserved, as one of the defining strands of his opinion, that the human standing of the child in the womb would be left as a matter merely of belief. And as one justice put it a while back, the people in the States may simply be invited to mull over their “value judgment” on when that child in the womb becomes human—and how much they would “value” the protection of that child.
But it became clearer to me last night that any disappointment of mine should be overborne by the vast good that Samuel Alito accomplishes here. Alito has carefully crafted his opinion within a cast moderation, which should diminish the anxieties of people on the other side that a decision overruling Roe would sweep away in a stroke that right to abortion they have come to see as one of the “first freedoms” in their lives.
Samuel Alito showed us here how a demanding moral reasoning on this matter would have to be tempered in what could only be called a consummate act of statecraft. Alito does what I’ve complained for years that White and Rehnquist, the dissenters in Roe. never did: he draws upon the precise facts about the development of that small human being in the womb.
Indeed, he supplied almost all of the substantive arguments that I’d want the Court to make. But he covered them over with the persistent concession that a large portion of opinion in this country did not exactly see things in this way—that the objective, inescapable human standing of the child in the womb was still a matter of “belief,” with no claim to be accepted by anyone who doesn’t share that belief.
And so what was the dominant purpose of writing in this way?: The firestorm of opposition is bound to inflame with the non-truth that this decision will do away with the right to abortion throughout the country. The justice is trying to write strongly to make the point that it does not.
In the meantime, he has provided all of the evidence and most of the reasoning to show why it is utterly untenable to claim that this offspring in the womb is anything other than a human being from its first moments. He leaves us then to draw the conclusion that should be obvious, to those open to seeing: that this child in the womb deserves the protection we would accord to all other human lives under the laws on homicide. We would leave it then to the States to determine just how quickly, or fully, that protection is extended….
The above comes from a May 4 posting by Hadley Arkes in The Catholic Thing.