Today is set aside to honor mothers. With unbound gratitude, I remember my beloved mother, gone now for many years, as well as my cherished mother-in-law, recently deceased. I celebrate the mother of my children, whose life still revolves around them, and will connect with our kids when they call my wife today from far-flung places. I am mindful of the millions of American households who gather to pay their respects to the moms they all treasure, and I grieve with every mom who has lost a child, for whom today brings memories laden with both joy and sorrow. I pause to pray for the Ukrainian mothers who are risking so much to protect their children, and for mothers everywhere who struggle just to keep their children fed. And I give thanks that our society still values and protects the family and the familial ties that bind.
This year Mother’s Day seems especially fraught because of the Supreme Court’s imminent decision about abortion. It is hard to turn on the television without seeing glimpses of the heated rhetoric and intense protests on both sides of the intractable debate. What makes it onto the airwaves is characterized more by angry shouting than reasoned discourse, a constantly streaming cacophony of hate. It is easy for those on one side to overlook the sincerely held beliefs of many on the other. While some in power have loathsome motives, some do not. Many are quick to assume the worst about everyone with whom they disagree because their opponents threaten their own beliefs, values, and in some cases, freedom.
Often missing from today’s re-invigorated debate is the recognition that, to one degree or another, each unwanted pregnancy is a human tragedy. Rarely seen among the heated emotions are compassion and empathy for those most affected. Absent from much of the religious fervor are the faith traditions’ espoused virtues of love and understanding. Too often lost in the soaring rhetoric is the humility to admit that none of us is infallible when it comes to distinguishing right from wrong.
Abortion is a lightning rod because the stakes on either side are exceedingly high. It pits the right to life claimed on behalf of one not born against a woman’s right to choose what happens to her body. It has a profound impact on members of one gender who have endured a long history of subjugation, while barely affecting members of the other who still control the levers of power. Few, if any, other issues stir such emotionally charged conflict because few, if any, other issues implicate beliefs so absolute.
Conflicting concepts of morality are not the only principles at stake in the current controversy. So are important principles of our system of justice. Each of the recently appointed Supreme Court justices testified at their confirmation hearings that Roe v. Wade and Planned Parenthood v. Casey are settled law. That being so, the questions then become – When is it appropriate to overturn settled constitutional law that has existed and withstood challenge for many years? Is it ever appropriate to do so when the settled law recognized the applicability of civil liberties in an important context not previously addressed, and its reversal would take those liberties away? Is there a compelling case for such an extraordinary withdrawal of personally cherished rights? What would be the consequences of overturning Roe and Casey on future cases involving other civil liberties, to the principle of stare decisis, and to the reputation and authority of the judicial branch in a society where our democratic institutions are already under extreme attack?
As a narrow legal matter, the issue presented is whether the right to abortion should be left to state legislatures, which represent the majority of each state’s citizenry, or to the federal courts, which are charged with protecting the minority from “the tyranny of the majority.” That latter concept, that there are certain individual rights so fundamental that they must be protected even from democratically supported intrusion, is exactly what constitutional civil liberties such as those reflected in the Bill of Rights and later constitutional amendments are all about. Should state legislatures, which are constitutionally prohibited from enacting laws that deprive their citizens of free speech, freedom of religion, the freedom to bear arms, and other specifically enumerated constitutional rights, have the power by majority rule to deprive a woman of the unenumerated but now-longstanding and repeatedly recognized constitutional right to obtain an abortion?
That’s the legal issue the Supreme Court is now poised to resolve. Not whether abortion is good or bad. Not whether an embryo or fetus is a human life or when it becomes one. The Court is being asked who gets to decide whether and when abortion is permissible – the elected officials of each state, or the Court as the ultimate interpreter of the Constitution and enforcer of the Constitution’s crucial limitations on governmental power.
These are not easy questions, but the Court already resolved them in Roe and Casey. And while the reasoning of those decisions might fairly be questioned, what, other than the Court’s composition, has changed since they were decided that might justify their overturning?
The draft opinion attempts to tackle these questions, and I have my own opinions about them, but sharing those opinions today is not my purpose. My purpose is to lament the shortage of empathy on either side of the debate. The peaceful protests are appropriate and probably necessary. The anger of those protesting is understandable. But it is regrettable that, amidst all the shouting, there is little listening and no apparent effort by any faction to find room for compromise.
That’s likely because the issue of abortion does not easily lend itself to compromise. Roe, with its distinctive treatment of each of the three trimesters of a pregnancy, presented its own compromise of virtually uncompromisable positions. If the Court overturns Roe, it will eviscerate the only middle ground that has ever worked in this arena and return America to the stark divisions between anti-abortion and pro-choice states. At a time when the forces that divide our nation seem (metaphorically) primed with dynamite, the Court should exercise extreme caution before lighting any matches.
You tackle a lot of important stuff here in a very thoughtful way. More of us should mind your theme and Justice Ginsburg's admonition to fight for the things we care about but in a way that will lead others to join us. Well done.