Understanding an Alliance: the Pro-Life Movement and Conservatism in America

by Oxford Students for Life

White House

OSFL represented outside the Supreme Court during the March for Life in Washington, D.C.

 

This article is the first of three instalments in a history of the American pro-life movement and its alliance with American conservatism.

What does being pro-life have to with political conservatism? In the United States, it matters a great deal. But outside of the United States, pro-lifers remain suspicious of the American alliance between political conservatism and the pro-life movement. Non-Americans argue that the pro-life movement has gained little from supporting political conservatives (usually from the Republican Party) who are against abortion. In 2008, just after the US election, the Scottish pro-life philosopher John Haldane delivered an eloquent version of this argument, published as an open letter to American pro-lifers. He offered a bit of “friendly advice”: do not ally the pro-life cause too closely with the Republican party. Haldane’s letter remains insightful eight years later, as the Republican party has degenerated into civil war in the face of this year’s presidential election.

Yet the unexpected passing of the United States Supreme Court Justice Antonin Scalia, considered one of the most politically conservative judges on the court, offers the chance to examine the legacy of the alliance between conservatism and the pro-life movement in America in a different light. Contrary to casual portrayals, it is not an alliance between the pro-life movement and the Republican party per se. Rather, it is an alliance between the pro-life movement and a school of constitutional jurisprudence, “originalism.” Republican Presidents sympathetic to both the pro-life movement and originalism have made a more pro-life jurisprudence possible. As Scalia was both the court’s most vocal proponent of constitutional originalism, and also an unceasing critic of a constitutional right to abortion, his career as Supreme Court Justice personified this alliance. And the alliance between originalism and the pro-life cause, while not a total victory, still deserves to be recognised as a success for the American pro-life movement.

 

  1. The Rise of Judicial Activism

The basic reason for the alliance between the pro-life movement and originalism concerns the character of American law. What is the supreme law in the United States? The answer is the US Constitution. It is a single, written document with authority over all other laws and customs. It limits the actions of all government officials, and sets forth the rights and liberties of the people. As it is a written document, the words and phrases of the Constitution are immensely important. They cannot be ignored, or assigned whatever meaning the interpreter wants. If they were, there would be little purpose in having a written Constitution. Yet there is an interpretive problem with understanding the meaning of these words. Do the meanings of the words change with the times, or ought they to be read exactly as they were intended in the Constitution’s first drafting?

Proponents of constitutional originalism argue that the meaning of the Constitution is fixed by the meaning of the words they had at the time they were adopted—their “original” meaning, as it were. New meanings cannot be invented, and old meanings cannot be avoided. The American people can change the Constitution by amendment, but they cannot alter its meaning to suit present purposes. Constitutional originalism is an argument that the majority may rule and legislate in the manner they please, as long as they do not violate the express terms of the Constitution.

By the 1960s, the Supreme Court – which is tasked with the interpretation and application of the Constitution – had set originalism aside. The new fashion was “living constitutionalism,” where the meaning of the words of the Constitution changes with the times. This gave the Supreme Court considerable flexibility in interpreting and applying the Constitution; Supreme Court judges now had considerable power to strike down laws they found objectionable. During the 1960s, the Supreme Court became a court of judicial activism. It used its power to interpret the constitution in order to advance particular policy ends, such as redrawing election districts, ending government-directed school prayers, striking down laws prohibiting the sale of contraceptives, or obliging police to recite criminal suspects their rights upon arrest (the famous “Miranda” rights popularized in television police dramas). Some of their decisions arguably realized good policy outcomes. But the Supreme Court’s analysis bore little relation to the words of the Constitution. The Court was assuming a sweeping authority for itself. Moreover, political conservatives were increasingly troubled that the Court only used its authority to advance ideologically liberal policy outcomes. As the 1960s progressed, the Court’s decisions provoked greater controversy than ever before. Conservatives became highly critical of judicial activism, but the Court was proving difficult to restrain and its decisions were more and more unpredictable.

In 1973, in Roe v. Wade, the activist Supreme Court went nuclear. It declared that the US Constitution provided a privacy right to abortion. It was an egregious case of judicial activism that flagrantly disregarded the text of the Constitution. The Constitution provided no right to privacy, so the court had to at once invent that right, and then argue that the right of privacy further entailed a right to abortion. The Court then claimed this right was to be protected from government restriction, making it, as a matter of constitutional law, absolute. What dismayed many about Roe, even supporters of abortion, was that it could not possibly be defended as an interpretation of the Constitution.

The consequences of the case were catastrophic, and not only in human terms. Since the 1960s, pro-lifers had been advancing the pro-life cause in legislatures and in the courts, advocating for protecting the life of the unborn. They had been winning noteworthy successes in the early 1970s, encouraging states to pass laws that restricted abortion. But Roe wiped all those gains out. Pro-lifers lost the chance to advance their arguments through democratic means, and were at once excluded from making legal arguments. Roe was a great political defeat for the pro-life movement.

To be continued…

Nathan Pinkoski is a DPhil candidate in Political Philosophy at the University of Oxford

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