It was a cloudy Epiphanytide morning, fifty-one years ago in our nation’s capital, in the year of our Lord 1973, when the Supreme Court announced its decision in Roe v. Wade. Leading American Catholic clerics judged with clarity, immediately. Terence Cardinal Cooke of New York denounced Roe v. Wade as “horrifying” and “shocking,” while John Cardinal Krol of Philadelphia called the decision an “unspeakable tragedy” for the United States.
The seven Supreme Court justices who handed down the ghastly Roe decision were a motley crew. Four had been nominated by previous presidents. Two were Eisenhower appointees. First was Potter “I-Know-It-When-I-See-It” Stewart, whose famous adage about identifying pornography encapsulated the emergent subjectivity of the age. And second was Justice William Brennan, who was probably the most formidable intellect on the Court in 1973. He was also one of the most radical progressives to ever serve on the Court, and President Eisenhower remembered his appointment as “one of my biggest mistakes.” Brennan’s fellow progressive and first African American justice, Thurgood Marshall, was an LBJ pick, and voted in virtual lockstep with Brennan. And William O. Douglas, the thrice-divorced architect of the revolutionary sexual privacy regime that Roe was built upon, was the senior justice and only FDR pick left on the Court.
Three justices in the Roe majority were very recent appointees of the sitting president, Richard Nixon, who had vowed to put strict constructionists on the Court: Chief Justice Warren Burger, Justice Lewis F. Powell, and the author Justice Harry Blackmun. Chief Justice Burger, a man known for his “mediocre” legal abilities, flipped his vote from striking down the laws to upholding them, only to eventually flip again a decade later when he realized that Roe had brought about an abortion-on-demand regime. Meanwhile Justice Powell, because he once had an employee whose girlfriend died after attempting a self-abortion, was thought to have desired a pro-choice outcome in his “gut,” despite its nonexistent constitutional grounds.
It was not constitutional law, and it gave “almost no sense of an obligation to try to be.”
The memos passed around the Court internally, as Justice Blackmun’s draft opinion was circulating, make for curious reading. The discussion sounds like one a super-legislature might have about where to draw the line permitting states to regulate and restrict abortion, and whose interests will be served by earlier and later lines (poor and uneducated women vs. women of education and means, etc.). The justices’ clerks, too, chimed in on these matters, opining what they felt to be the most important “practical policy considerations.” Indeed, the justices themselves sensed what was going on. In one memo, Justice Stewart worried that the trimester framework was “inflexibly ‘legislative.’”
As Blackmun sought to respond to Stewart’s and others’ suggestions, he reported to his brethren that proper judgment “proved for me both difficult and elusive.” He admitted that the trimester framework was “arbitrary.” Strikingly, he continued: “But perhaps any other selected point, such as quickening or viability, is equally arbitrary.” In the same memo, he concluded that the decision “will probably result in the Court’s being severely criticized.”
Blackmun thus seemed to intuit that he deserved criticism for having abandoned the province of a judge under our constitutional order, which is not to exercise the legislative powers of force and will, but only judgment. In one fell swoop, the Court had struck down abortion statutes in all fifty states and arrogated to itself the power to determine abortion policy for the entire nation. One of the leading constitutional scholars of the day, John Hart Ely (who was personally a pro-choice liberal), lambasted Roe because it was not constitutional law, and it gave “almost no sense of an obligation to try to be.” Importantly, Ely noticed this simply from reading the decision, without having read the internal correspondence of the Court, which should have disabused any remaining delusions that the Court was engaged in constitutional interpretation.
They ignore the constitutional bankruptcy of Roe because pro-abortion feelings don’t care about constitutional facts.
It took forty-nine-and-a-half years, but the criticisms of Roe birthed an entire political and constitutional movement that culminated in overturning Roe in Dobbs v. Jackson Health (2022).
So why did Joe Biden, the second Roman Catholic president of the United States, declare on Roe’s fiftieth anniversary that “the Court got Roe right 50 years ago”? We are not told which provision of the Constitution the Court got right. But we can only assume it was the constitutional provision the Court itself identified, the Fourteenth Amendment Due Process Clause. But one searches Roe in vain for any serious analysis of the text or logic or historical understanding of the Fourteenth Amendment Due Process Clause, which declares that States cannot deprive persons of liberty without due process of law. The Court literally said “we feel” that the right to abortion is located there.
That feeling—in this instance, a desire for something to be the case (that abortion is a constitutional right)—is not sufficient to tell us whether such a right claim has any basis in the Constitution’s text, logic, structure, or historical understanding. To be fair, the Court did attempt something resembling a historical argument for abortion being a common law liberty (which even if true would be insufficient to establish it as a constitutional right). But even that historical “argument” has been repeatedly debunked as motivated reasoning masquerading as history.
In recent years, the conservative commentator Ben Shapiro has popularized the motto “Facts don’t care about your feelings.” That is true enough. But Biden’s proclamation is evidence that sometimes the obverse is also true. Like Justice Powell’s “gut,” President Biden and his pro-abortion handlers doubtless harbor strong subrational pro-abortion emotions. They ignore the constitutional bankruptcy of Roe because pro-abortion feelings don’t care about constitutional facts.
Indeed, pro-abortion feelings don’t care about all sorts of facts. When the Roe Court feels that they “need not resolve the difficult question of when life begins,” they don’t care about the fact that their decision rendered it legally impermissible and therefore resolved that it was legally “false” to assume that life begins at conception. And when they felt that permitting the killing of unborn children on demand before viability would be merciful for poor women, they didn’t care about the fact that it is never just to do evil that good should come about.
When pro-abortion feelings latch onto women’s reproductive “equality,” they don’t care about the moral fact that permissive abortion regimes mandate inequality for the unborn, including unborn girls (sex is determined at conception). Nor do they care about the legal fact that fathers lack an equal right to determine whether their child lives or dies (nor a correlative legal right not to pay child support if the mother doesn’t choose abortion).
When they appeal to equal economic opportunity for women to participate in the workforce and education, they don’t care about the fact that there is no demonstrated connection between abortion and greater participation in these areas. Nor do they care about the enormous economic and social impact that adding fifty million Americans to our workforce-age population would have on our economy and society (including twenty-five million women), if those Americans hadn’t been killed by abortion.
And when pro-abortion feelings try to co-opt the “sacred” in service of infernal ends, they don’t care about the theological fact that God abhors the sacrifice of children to false gods. Nor, in commemorating subversion of the most natural of human loves of mother and child, do they care that in Epiphanytide we are supposed to recall how, in becoming man and subjecting himself to Mary and Joseph, the Christ Child sanctified the loving bonds of family.
On this fifty-first year since January 22, 1973, and all anniversaries to come, let Roe be a byword for the jurisprudence of feelings over facts.