30 Giugno 2022 Pubblicato da Marco Tosatti

Marco Tosatti

Dear friends and enemies of Stilum Curiae, Professor Maurizio Ragazzi and Dr. Mariagrazia Mangano – which we thank from the bottom of our hearts – offer to your attention these considerations on the Supreme Court’s ruling on abortion. Enjoy the reading.

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Abortion, US Supreme Court and Natural Law

Dr. Grazia Mangano

I had never dared hope that, during my life time, the US Supreme Court would have gotten rid of that criminal piece of junk that Roe v Wade has been for 50 years. (Even a number of abortionists admit that it was a piece of junk, as they acknowledge how that fake opinion was not founded on any serious legal analysis; that is was criminal is evidenced by the over 60 million innocent babies who, in the US alone, have been murdered through abortion since 1973).[1] But Providence is always stronger than our incredulity and surprised us with this gift, on the very solemnity of the Most Sacred Heart of Jesus, the true defender of the innocent. The instrument was five justices (Thomas, Alito, Gorsuch, Kavanaugh and Coney Barrett),[2] the three last ones among whom had been nominated by president Trump: were it not for the many pro-life measures taken by his presidency, this contribution alone would have conferred on him the status of protagonist in the golden book of the pro-life movement. These five justices, in linking their names to this historical judgment, have given evidence of their guts, enduring the picketing in front of their homes, an attempted murder of one of them, and the pathetic reaction by the progressive camp, which is unable to accept any loss to its evil agenda, as it firmly believes that it is the carrier of (fake) truths to be imposed, even violently, on us all.

As it is invariably the case of US judgments, this too (Dobbs State Health Officer of the Mississippi Department of Health et al. v. Jackson Women’s Health Organization et al.),[3] which overturned the infamous Roe, is fairly complex, and its assessment requires extensive knowledge of US substantive and procedural law. However, this is no obstacle to summarizing three brief considerations of an ethical-legal nature.

1. What Dobbs entails.             The Dobbs opinion of the Court is not the exact opposite of Roe in the sense that abortion, which had scandalously been elevated to a so-called “constitutional right” (the “right” to… tear to pieces a defenseless child in his or her mother’s womb), is now prohibited throughout the US. Instead, the Dobbs opinion leaves each individual state of the Union to decide one way or another (pro-life or pro-abortion), without interference by the Supreme Court. On this account, various conservative commentators have saluted the Dobbs decision as promoting true democracy, in which the people have the final word through their elected representatives. But is it really true that the decision whether an innocent human being in his or her mother’s womb may or may not be murdered with impunity belongs to a majority vote, be it the vote of the people instead of a majority vote within a court? The very formulation of this question contains its negative answer. It is wholly absurd to think that a constitution called to protect the fundamental rights of everybody should not accept the premise that no innocent human being, whether born or unborn, may licitly be suppressed. The question becomes whether a democracy without values may exist (an issue that was dear to Saint John Paul II) and whether a human law that runs contrary to natural law is truly a law or is instead its mockery (an issue that has always been at the center of the reflection on the relationship between natural law and positive law).[4] In other words, from both an ethical and a legal perspective, by leaving the ultimate decision to a majority vote of the people instead of outlawing the crime of abortion throughout the US, Dobbs is highly disappointing. It would be wrong, though, to deny its historical significance as a first step in the right direction because, thanks to this decision, (i) Roe v Wade has finally gone into the trash where it has always belonged, together with the delirious pretense that a “constitutional right” to dismember a child may ever exist in a society of rational human beings, and (ii) pro-life measures are already being triggered or adopted in various states of the Union.

2. Judicial restraint.             There are nine justices who sit on the Supreme Court. In the Dobbs case, five decided to overturn Roe, and three voted against. The ninth justice, namely president Roberts, once again embraced a cautious approach (which some may call wishy-washy): by joining the five justices on the majority (and therefore his opinion is not a dissenting opinion), he affirmed the constitutionality of the Mississippi law that was at the origin of the Dobbs case, but, unlike them, he did not think that, to obtain this result, it would be necessary to overturn Roe v Wade. Articulating his stance, he appealed to “a simple yet fundamental principle of judicial restraint: If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more”.[5] Now, there is no doubt that the principle of judicial restraint has played an important role throughout the Court’s history, though sometimes used as a convenient escape route.[6] And it is unnecessary to examine here whether, in the Dobbs case, the view articulated by president Roberts was plausible: justice Alito, who wrote the opinion for the Court, replied with his usual wit to Roberts on this point.[7] Rather, the question is whether and, if so, how the principle of judicial restraint applies when a case turns around precedents (like Roe) that go against natural law. Yet again, the answer to this question implies fine aspects of both an ethical and legal nature.

3. Connection among sins. In their dissenting opinion, the three pro-Roe justices wrote that, “[m]ost obviously, the right to terminate a pregnancy arose straight out of the right to purchase and use contraception” (Griswold case from 1965 and Eisenstadt from 1972), and in turn “those rights led, more recently, to rights of same-sex intimacy and marriage” (Lawrence case from 2003 and Obergefell from 2015).[8] One more time, there is no need to discuss here the impact that the Dobbs decision may or may not have on these other cases and the (fake) “rights” they produced. This question is extensively addressed in the Dobbs opinion of the Court, in the opinion of justice Kavanaugh, and in that of justice Thomas.[9] At the same time, it is worth pointing out here that the quoted passage from the dissenting opinion confirms that sins are connected with one another, starting from the connection between abortion and contraception: far from excluding each other, according to the often repeated and always false refrain “more contraception means fewer abortion”, contraception and abortion support each other, as the history of US law clearly demonstrates.

In conclusion, and looking also beyond the US boundaries, one should hope that familiarity with the Dobbs decision may

• convince everyone that the evil of abortion and other intrinsic evils will never be the settled “law” of the land, precisely because no land may be built and prosper on evil,
• promote pro-life measures such as (or even stronger than) those that are being adopted in various states of the US,
• lead to a deeper reflection that only a sane relationship between positive law and natural law can safeguard the fundamental rights of everybody (born and unborn), and
• reject those so-called new “rights”, which, instead of being firmly grounded on respect for human nature, are mere figments of (twisted) imagination and the product of lust for power.

[1]           The tragic irony is that the diabolus ex machina in Roe v Wade had been the “Catholic” justice Brennan (a prayer for his poor soul), nominated in 1956 by the Republican president Eisenhower as a result also of the reiterated requests by cardinal Spellman (then archbishop of New York and the most influential prelate in America) to have a Catholic justice on the Supreme Court, where there had been none since justice Frank Murphy’s death in 1949. As it is often the case, the administration did not get the message correctly, and proceeded with nominating a justice who would certainly not be to the cardinal’s liking. (See J. Cooney, The American Pope. The Life and Times of Francis Cardinal Spellman (1984), pages 237-238).

[2]           All five justices in the majority are Catholic, except that Gorsuch, who was raised a Catholic, has apparently been attending for years an Episcopalian community. President Roberts is also Catholic, and so is pro-Roe justice Sotomayor, while the two other justices who joined in the dissenting opinion (Breyer and Kagan) are Jews.

[3]           The text of the judgement is available at the Court’s website: https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf.

[4]           This question emerged, almost dramatically, during the Q&A session that followed a lecture given at the Gregorian University in Rome, in 1996, by justice Antonin Scalia (pillar of the originalist justices at the Supreme Court from the end of the 1980s to his death in 2016): http://robertaconnor.blogspot.com/2016/03/justice-scalia-at-gregorian-university.html.

[5]           Page 2 in president Roberts’s opinion.

[6]           In footnote 7 of his concurrent opinion (joined by justices Kennedy and Thomas) in the Federal Election Commission v. Wisconsin Right to Life, Inc., from 2007, justice Scalia had criticized “faux judicial restraint” as a kind of “judicial obfuscation”.

[7]           Pages 72-77 in the opinion of the Court.

[8]           Pages 4-5 in the dissenting opinion.

[9]           Pages 37-39 in the opinion of the Court, pages 2-3 in the opinion of justice Thomas, and page 10 in the opinion of justice Kavanaugh. In his opinion, justice Thomas, the highly respected dean of the conservative majority on the Court, was open to the possibility of revisiting the concept of substantive due process, which revisitation would have consequences for those new “rights” (so-to-speak) derived from mere political judgments devoid of any foundation in the US constitution.

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Tag: aborto, mangano, ragazzi, usa

Categoria: Generale