Good Analysis of Responses to Roe v. Wade

A few days ago (July 22nd) in NationalReview.com, Edward Whelan, a former Supreme Court law clerk, wrote a good analysis of the situation concerning Roe.

Whelan listed three ways to classify the attitude of a Supreme Court candidate toward Roe:

1. Pro-Abortion: someone who believes that the Constitution contains a right to abortion. Someone with this view would continue to uphold Roe.

2. Pro-Life: someone who believes that the Constitution requires recognizing the unborn child as a legal person entitled to full protection from abortion. In my view, this legal position, as concisely described by Whelan, is indeed correct. I have argued for this view at length in my own book Unpopular Catholic Truths, parts of which you can read at Amazon.com. As Whelan points out, the scientific and genetic evidence supports this view. Obviously, a person in this category would vote to reverse Roe.

3. Substantively Neutral: someone who believes that the Constitution does not address the abortion issue and that abortion should thus be left for the states to resolve. Whelan characterizes Rehnquist, Thomas, and Scalia as falling within this category, meaning that they would vote to reverse Roe v. Wade.

From what I gather, Whelan favors the so-called "Substantively Neutral" position and classifies Supreme Court nominee John G. Roberts in this category. I can see why he does so, but I think the "substantively neutral" label can be misleading. By this label, Whelan means that someone in the "substantively neutral" category views the Constitution as neutral on abortion. But certainly someone in this category is not himself neutral or deferential toward Roe v. Wade. Everyone in the "substantively neutral" category would vote to reverse Roe v. Wade.

The bottom line is that Judge Roberts will, from all indications, vote to reverse Roe v. Wade, under whatever category he eventually fits. As far as I am concerned, voting to reverse Roe under whatever label is effectively pro-life. In other words, Whelan's "pro-life" and "substantively neutral" categories are both really pro-life. My own view is that a passionate and excellent advocate arguing before the Supreme Court will one day have a very good chance of persuading a majority of the Court to adopt the straightforward "substantively pro-life" legal position: the scientific and genetic evidence demonstrates that the unborn child is a person entitled to constitutional protection from murder. As a lawyer, I firmly believe that this "substantively pro-life" position is indeed the correct legal position that can be ignored only by ignoring science which continues and will continue to demonstrate the personhood of the unborn. But, in the meantime, I will be enormously delighted to have a so-called "substantively neutral" majority simply reverse Roe and turn the abortion issue back to the state legislatures and so end the Court-imposed dictatorial regime of abortion on demand.

Note: In the body of Whelan's article, there is a link to his own passionate testimony before the Senate Judiciary Committee that is well worth reading.