Supreme Court and Abortion

Gary McDowell (“This Court Won’t Be Our Moral Keeper,” Column Right, Aug. 1) would persuade us that the work of the Supreme Court is one of legal technicalities. “Whenever either side in a case wins on moral rather than constitutional grounds,” he writes, “it is the people who lose.” But the greatest constitutional questions have almost invariably been moral questions, notable those concerning slavery and civil rights. The court decided in 1896 in Plessy that separate could be equal; in 1954, it decided in Brown that it could not be. What changed in the intervening years was that different moral judgments were brought to bear upon the interpretation of the words of the Constitution.

The Supreme Court’s decision in Roe vs. Wade certainly overrode the principle of federalism that had left the abortion laws under the jurisdiction of the states. But it did so by deciding that a woman’s decision in favor of an abortion was an exercise of a constitutional right to liberty protected by the 14th Amendment. In order to reach this conclusion, it had first to conclude that there was no conflicting right to life (equally protected by the same amendment) of the unborn child. Can there be any doubt that this was a moral judgment of the highest order? If the Supreme Court is in the future to return the question of abortion to the states it must--whether implicitly or explicitly--reverse this moral (or immoral) judgment.

HARRY V. JAFFA, Senior Fellow, the Claremont Institute