Gerard V. Bradley, Faculty Contributor

Abortion is the great civil rights issue of our time because it raises—uniquely and compellingly—the foundational question about law and justice which every society faces.  It is the question: Who is the law for? For whose benefit do we plan and build and apply this vast apparatus we call the “rule of law?”   The question is foundational because it is prior, in status and importance, to the question: What shall the law be?  It is foundational because answering it correctly is essential to justice. Anyone can see that even the most refined arrangement of legal rights and duties counts for naught, if the strong can with impunity manipulate the foundational question, and deny the benefits of law to those they wish to exploit.

Jurists as far back as Justinian in the sixth century correctly saw that law is for persons, not the other way around.   Persons are the point of law; law is their servant.  Persons are not for the state, or for the fatherland, or for the glory of the common law.  These beneficiaries—these persons—are not entities identified through policy analysis.  They are not the sums of interests balanced, the deliverables of a vast progressive agenda. The older jurists saw, too, that the question of “personhood” could not be an intra-systemic riddle, solved by a feat of technical legal reasoning, and answered with a legal fiction, or term of art—as if the law could be as impervious to the reality of persons as Chancery was to justice in Jaundice v. Jaundice.

Being prior to law and indispensable to justice, the foundational question must be answered according to the truth of matter: everyone who really is a person, counts in law as one.

Seeing the parity here is not perforce to see the truth.  To ask the right question is not straightaway to get the right answer.  Serious and good people have been wrong about when persons begin, for example, due to their misunderstanding of human reproduction.  (Knowing nothing of egg and sperm, Thomas Aquinas famously thought that people began about forty days into a pregnancy when movement within the womb is first detected.) Their societies sanctioned injustices, for which these misguided people bore no subjective guilt and which their openness to truth permitted them to eventually correct.  It is entirely another matter to say that the law is opaque to, and even uninterested in, the truth about who counts as a person.  This is the sin of Roe v. Wade, as it was of Dred Scott v. Sandford.

Clear-headed jurists through the centuries would have gasped, therefore, at Ronald Dworkin’s view that the question—who counts as a person?—is like a membership application to the Rotary Club.  Do those who already count want to open up the rolls? As if justice was not demanding anything of us. They would have been staggered by John Rawls’ argument that the “just” abortion policy for America is that which respects the right of everyone in the argument to be heard respectfully—already subordinating a fundamental issue of justice to a secondary one (protecting persons’ lives to “civil discourse.”) They would naturally have rejected President Obama’s message on the 2012 anniversary of Roe, when he said that we must “continue our efforts to ensure that our daughters have the same rights, freedoms, and opportunities as our sons to fulfill their dreams.”  The President spoke utterly without irony only, of course, about sons and daughters who survived the womb.  Besides, no one’s son has anything like the “rights, freedom, and opportunities” of everyone’s daughters, when it come to the life or death of their child.

Justinian and his successors would have been horrified by the pettifoggery of the Roe Court, which set upon the foundational question about persons with the zeal of a clerk, and with the charity of a highway robber.  I shall shortly unpack this sad operation, and identify its three components.  For the moment it suffices to say that the Court undertook to authorize the use of deadly force upon a class of beings without ever concluding that the victims were not really persons.  The Court tried, in other words, to suppress the foundational question—as Dworkin, Rawls, Obama and so many others have tried to do.

It is the great accomplishment of the pro-life movement to have resisted this suppression, to have kept alive the spirit of justice and to have promoted, in season and out of season, a willingness to face unafraid its demands.  The fruits of this effort, along with the revelations of neo-natal and genetic science and some signal legal successes, provide an opportunity to exploit a portentous flaw in Roe’s jerry-rigged edifice.

The protagonist of the possibly epic Supreme Court reconsideration of Roe will not be a Good Samaritan or a heroic state official.  He will be a bad man, one who has killed his own unborn son or daughter, a man like Scott Peterson, who currently resides on Death Row in San Quentin Prison. This protagonist’s aim will not be the aim which brings many thousands to march in Washington every year at this time.  He is no champion of human rights.  He simply wants his conviction reversed.  But his constitutional arguments would nonetheless force the Justices to confront, as they never have before, the foundational question they suppressed in 1973.

The protagonist might be Airman First Class Scott Boie.  Boie married his girlfriend shortly after learning that she carried their child, but he was never happy about the pregnancy.  Before long, Boie asked her to have an abortion.  When his wife refused, Boie bought some Misopristol, an abortifacient commonly used in lawful chemical abortions.  He ground the drug into a powder and secretly put some of it into his wife’s food and drink on four different occasions.  She soon miscarried.  After admitting what he had done during a secretly-recorded conversation with his wife, Boie pleaded guilty under the federal Unborn Victims of Violence Act to the lesser offense of attempting to kill his child.  Boie was dishonorably discharged, and sentenced to nearly ten years in prison.

Airman Boie says that it won’t do to declare that he is never justified in seeking to avoid these harms by doing what she is never even asked to justify, namely, killing their child yet unborn.  He argues that once the legislature has decided to treat the unborn as homicide victims, the law may not hold him responsible while completely exempting her for doing the same thing.  It is not, they could readily allow, that the presence of the child within the mother’s body makes no difference.  It does, and so if pregnancy itself threatens her life or presents a serious menace to her physical health, a pregnant woman would be legally, if not morally, justified in securing an abortion. Even so: Boie and cohort maintain that the pregnancy difference must too be subject to overarching principles of equal protection of the laws.

Airman Boie is right: the Roe abortion-on-demand regime is itself discriminatory, and violates the Constitution’s Equal Protection Clause.  His challenge—or the challenge of someone else convicted of “feticide”—threatens to undo Roe v. Wade itself.

It will be awkward (at least) for the Court to now take up the foundational question it has long suppressed.  But the Justices have no feasible alternative.  Airman Boie and the like raise Equal Protection challenges which go through the personhood matter.  These challenges deserve a conscientious response.

It may be scarcely imaginable that the Court could now declare that the unborn are not really persons, that human life deserving respect does not, in truth, begin until birth, and that these judgments are conclusive upon state legislatures and Congress.  It may be scarcely imaginable that the Court could escape the dilemma presented by Airman Boie by declaring the UVVA—and by implication, all its state counterparts—unconstitutional.  These laws and many others based upon the truth about unborn persons are permanent fixtures of our legal system.  Sonograms, pre-natal medical developments, DNA research, and a replenished commons sense all show that what the unborn are, we all once were.

To say “scarcely imaginable” is not to say “unimaginable.”  The pro-choice dogmatists on the Court might yet cling tenaciously to abortion rights.  They might venture into the deep and sweep away this latest threat to what they consider the non-negotiable demands of women’s equality.

Perhaps then the paradoxes of persons exposed by the feticide defendants have greater purchase upon the Court’s conservatives, upon those Justices who recognize the injustice of abortion and who have long regarded Roe as an albatross around their necks.  These men profess varying degrees of faithfulness to the original understanding of constitutional provisions.  They have, however, shown little inclination so far to take up the challenge which the plain meaning and original understanding of the Fourteenth Amendment squarely places in front of them: counting the unborn as constitutional persons because they are really persons.  Their characteristic philosophical reticence is usually well-founded.  But “usually” is not “always.”

Neither can this question of personhood be put off any longer. If not now, when?  For abortion is not only the great civil rights issue of our time.  It is the greatest human rights tragedy in America’s history.   It is now over 55 million dead by lawful abortion since Roe, and counting.  That is a hundred times the number of Americans killed in combat during World War II.  That is many millions more than all the persons enslaved in the course of American history.   In abortion, a person is killed outright.  Abortions victims never get to experience a mother’s love, to wonder at a sunset, to praise God—as slaves, could, and did.

This article is an excerpt from Bradley’s piece that appeared in full on Public Discourse on January 25 (http://www.thepublicdiscourse.com/2013/01/7735/), and is used with the permission of both the author and the Editor of Public Discourse. Gerard V. Bradley is a Professor of Law at Notre Dame.