On Sept. 26, President Donald Trump announced his nomination of Amy Coney Barrett, currently a judge in the Seventh Circuit Federal Court of Appeals, to replace Justice Ruth Bader Ginsburg, who died on Sept. 18, as a justice of the U.S. Supreme Court.
It appears likely that Barrett will be appointed to the court at some point during the current month. However, the fact that Trump and many others, including several members of his staff and at least three senators, have just contracted the coronavirus may delay or prevent her appointment.
Barrett is a devout Roman Catholic, and she has stated that she views abortion as “barbaric.” She is also, by all reports, a first-rate judge and, on a purely individual basis, a wonderful human being.
However, during her term if she is appointed as a Supreme Court justice, it is likely that the court will hear and decide a case actually or effectively reversing the court’s 1973 decision in Roe v. Wade. Roe held that state laws significantly limiting a woman’s legal right to abort a fetus before viability are prohibited by her constitutional right of privacy. (In the rest of this piece, the term “abortion” will refer only to abortion before viability. Viability is generally defined as the gestational age at which a fetus can survive outside the womb. It is currently about 24 weeks, but some believe it may only be as few as 22 weeks.)
Barrett has made clear her view that Roe was poorly reasoned. Thus, if a plaintiff petitions the Supreme Court to overturn Roe while she is a Supreme Court justice, her vote may be decisive in granting that petition.
However, Barrett’s view about the morality of abortion conflicts directly with that of Gary Wills, another devout Roman Catholic, an emeritus professor in the history department of Northwestern University, a former Jesuit seminarian, and a frequent and widely admired writer on issues of politics, law, philosophy, and theology.
I’m by no means certain that Wills’s view about abortion is correct; nor am I certain that Barrett would ever vote to overturn Roe. However, as a lawyer and a citizen, I believe that sincere and carefully reasoned positions on important but controversial political issues like the legality and morality of abortion deserve publicity. Thus, I’ll do my best in the paragraphs that follow to summarize Wills’s views on this issue, since many readers may be unfamiliar with these views. In my view, such a summary may be particularly appropriate now, when, in connection with Judge Barrett’s nomination, many of us are thinking or rethinking Roe.
■As many readers know, the Sixth Commandment (the Fifth in Roman Catholic numbering) forbids murder. However, according to Wills, in both of the two books of the Hebrew Bible in which the Sixth Commandment appears, murder clearly means the killing without justification of a human person. But in Wills’s view, no passage in the Bible addresses the issue whether abortion is murder. Furthermore, while a small number of biblical passages are sometimes construed to so hold, Wills argues that under widely accepted standards of biblical interpretation, these constructions are invalid.
■Thus, Wills argues that a determination whether abortion is murder must be decided on the basis of non-biblical grounds – e.g., on the basis of philosophy (i.e., reason unaided by scripture) and medicine (e.g., the opinions of experts in the fields of physiology, radiology, neurology, and gynecology).
■Wills acknowledges that opinions among philosophers and medical experts vary. However, he argues that although a fertilized ovum is clearly human, it cannot be said to be a human person until, at a minimum, several weeks after fertilization. Thus, he argues that for both religious and legal purposes, killing a fetus before viability cannot reasonably be viewed as murder.
■Furthermore, Wills points out that there are numerous grounds on which even many deeply religious Christians acknowledge the morality of abortion – e.g., when the fetus in question results from rape or when its birth will kill the mother. He argues that no such acknowledgement can be valid if killing a fetus is murder.
■If there is any issue on which religious leaders have the right to state their views and to instruct their members, it is the issue whether abortion is sinful. Wills would undoubtedly acknowledge this right; but he would also argue that the basis for religious leaders’ doing so must be the Bible, not their personal opinions, however deeply held.
■Finally, it is clear that on the basis of the above views, Wills opposes the overturning of Roe, since the result would be that in many states, legislatures would pass laws prohibiting abortions even though, on the basis of philosophical and medical expertise, the view that abortion constitutes murder has no compelling legal or ethical justification. Implicit in this opposition is Wills’s concern that as a result of these laws, many pregnant women will feel that they need abortions because of their inability to properly raise a baby but will lack the means to travel to other states or countries for an abortion and do not want to go through a nine-month pregnancy only to surrender their baby. Many of these women may thus receive fatally unsafe abortions in their home states.
Many readers of this newspaper may disagree with the views of Wills as summarized above. But perhaps they will agree that these views deserve respectful consideration.
(John Cunningham lives in Concord. He is a lawyer of counsel to the law firm of McLane Middleton, P.A., and he is a former member of the philosophy faculty of Georgetown University.)