A reader writes:

I don’t know how much of the conversation you were following in the comment box that followed your praise of Bush’s call for an end to partial-birth abortion. I was one of the three commentors, and was inexplicably attacked by both the atheist and the pro-life advocate in trying to articulate why an end to abortion is unlikely to occur in the current legal arena.

Having thought over some of the reasons why both found reasons to dispute my assertion (that abortion is bad but SCOTUS is unlikely to allow any laws against it to stand), I realize it is because I was trying to argue from a position that neither was comfortable with. I think I have found out why the US is so backwards in its laws regarding abortion and I think it goes back to the Founders and their conception of post-Enlightenment natural law. Whether the founders were primarily theists or deist, the one thing they most certainly were not (at least in any significant way) was Catholic. They ultimately understood that government was to have a very limited role in the live of the people (part of social contract theory is that people contract with governments to be protected from outsiders and free to do what they will otherwise). This is very different from the Catholic worldview where the role of government is to help people on the way to salvation (which is the duty of everyone). Whether Caesar tends to do this or not, kings were held responsible for the morality of their people which is why Enrico IV crawled in the snow to have his excommunication lifted. So we’re already starting with the founders with a concept of government that is not primarily involved in legislating morality. Its main job is to stay out of people’s business.

The other tendency which was problematic from the beginning was that if there is a Natural Law, we still have no idea what it is. Because the founders are mostly Protestant, they already are having problems within a generation of the Founding of interpretation of the law. The Constitution and its supporting documents and commentaries do not a Sacred Tradition protecting their interpretation. Modern judges are thus left with precedent and stare decisis (holding to past precedent) and the common law. They don’t have an external check like the Church to say that they are straying from the Natural Law because every man with a Bible is finding a different Natural Law. So even the appeals to God’s law fall apart once one finds that no one can articulate what that law is. (You noted in By What Authority that there is not way to come to a pro-life position from the Bible without the lens of Tradition.) So once we have the Protestant difficulties of discerning the Natural Law, Natural Law is thrown out in favor of positive law which is interpreted as the judge sees fit. Now the justice of the law coming from the bench is determined by two things: 1) the formation of the judges in their moral judgement, and 2) the precedent of previous judges for finding the same opinion.

You can see where this is leading. The moral quandary we have found ourselves in is continued because the Courts have found themselves seeking deeper and deeper into bad judgements which they can’t dig themselves out of. Because there is precious little legal precedent for protecting the life of the unborn (I’m not kidding here. I am helping my husband study for his Criminal and Constitutional law classes and the historical definition of human being has been a person who has been born. Now that ought to change because our science has given us greater insight into the life of the unborn.) they continue to show little respect for that life. Because the government is supposed to be staying out of the private lives of people, the Court has decided that states don’t have the rights to regulate the aspect of a private life that includes abortion. Because we have traveled so far from the source of Law, there is no voice of reason saying that we are ignoring what we know to be true: that abortion is as private a matter as incest or domestic abuse (which is to say, family matter or not, it is criminal as well).

Because of the corner the Court has argued itself into, I think we might make greater strides in the legal front by going for an utterly different tactic, as far as legislature goes. A Constitutional amendment that does for the unborn what the post-Civil War amendments did for slaves. Recognize what every sane person knows to be true: that the unborn are persons worthy of the same rights as anyone that is already born.

The problem with the arguments that work great on the front-lines of pro-life work is that the Court is insane. They have decided, rightly or wrongly, that morality is not the issue. Rather they are merely deciding what government is or is not capable of regulating. We must change the rules of the game to get laws that protect the unborn for more than the time period it takes for a court to overturn them. And meanwhile I continue to pray that hearts and minds convert so that the demand for abortion will end as surely as its legality ought to.

Just two cents from an amateur law scholar.

I’ll leave it to you other amateur law scholars to hash this out.