It has been a year since the celebrated Dobbs decision overturning the infamous Roe v. Wade ruling that found a legal “right” to procured abortion in the U.S. Constitution. Many are now asking what comes after Dobbs as the abortion issue weaves its way through the states. Some conservative states are all but eliminating the murder of the innocent, while liberal states are enshrining it into their laws even until birth.
Dobbs did not resolve the abortion crisis but merely returned the decision to the states. The road ahead must address exactly this double application of law that comes to radically different conclusions. This terrible contradiction affirms that an identical act can be considered murderous in Mississippi yet benign in California.
Law cannot be determined on geographic accidents, especially in such serious matters. There must be some standard measures that help resolve this illogical absurdity.
Mere Natural Law
One answer to this question can be found in the commentaries of Hadley Arkes in his new book, Mere Natural Law: Originalism and the Anchoring Truths of the Constitution. In the final chapter of this impressive tome, he outlines the insufficiency of originalism to deal with the abortion issue. He rightly says that there must come a “Natural Law Moment.”
While Dobbs was a tremendous psychological victory for the pro-life side, the majority opinion justices kept strictly to the letter of the law. They made no moral decisions and even took pride in not declaring whether procured abortion is right or wrong. They only concluded that “nothing in the text of the Constitution had even hinted at a right to kill infants in the womb.” Roe was an exercise of “raw judicial power.” Justice Alito, writing the majority opinion, correctly asserted, “Roe was egregiously wrong from the start” because it misinterpreted the words of the Constitution.
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The justices further avoided the controversy by returning the issue to the voters, who would make decisions based on their own “value judgments” on the matter. Indeed, the conservative court declared that whether an unborn child is a human life cannot be determined from a legal perspective since views differ. It can only be decided by the strict interpretation of the words of the law—the originalist position.
Reformulating Law
The originalist justices used the Nietzschean formulation of “value judgment” to dethrone moral truth and replace it with those opinions that people value and that sociology and science can validate. Such interpretations strip law of its metaphysical and moral character.
The debate is thus reduced to “a contest between two groups animated by clashing value judgments, each trying to use the powers of law to impose their beliefs on other people.”
Indeed, Dr. Arkes rightly affirms that under such circumstances, there can be no resolution of the abortion issue. It will become a “might equals right” determination based on who can outshout the other. The pro-life side cannot win under such unsound positivist foundations.
Doubling Down on Moral Truth
The way to win is to double down on the moral truths that have energized the pro-life movement from the beginning. This uncompromising affirmation of human life from conception, valid for all times and peoples, will enable the movement to prevail in more battles as it prepares to win the war.
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Only a natural law moment can be the way forward. Law must return to its original proclamation of truth. It must embrace, not avoid, the determination of moral right and wrong. The reason for the law is not the establishment of arbitrary rules but rather to pursue a passion for justice. Legal justice induces people to render to society its due in view of the common good.
Natural law takes on a special attraction in these postmodern times, where certainties and narratives are deconstructed. People crave these lost certainties since they give meaning and purpose to their lives. Thus, natural law theory has experienced a rebirth, with people flocking to this simple explanation of how there is an objective law that governs human nature that Saint Paul says is “written in their hearts” (Rom. 2:15). Prof. J. Budziszewski claims this law is so obvious that you “can’t not know” it.
Natural law is an anchor of truth to guide law to its purpose of pursuing a passion for justice. As Dr. Arkes says, it’s not complicated; anyone can understand it. It’s mere natural law.
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