Meanwhile, with each passing year, modern medicine finds new ways to save babies delivered earlier and earlier, and modern science finds new ways to bring us face to face with the elementary biological fact that the unborn are individual human beings. Roe was supposed to make law rest on science instead of text and tradition, but real science accepts new discoveries. The refusal of judges and lawyers to adjust to new science is a sign that they were better off sticking to reading laws.
Roe has not settled the issue or removed it from our politics; quite the contrary. As Justice Antonin Scalia once wrote, “to portray Roe as the statesmanlike ‘settlement’ of a divisive issue, a jurisprudential Peace of Westphalia that is worth preserving, is nothing less than Orwellian. Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since. . . . Value judgments, after all, should be voted on, not dictated; and if our Constitution has somehow accidentally committed them to the Supreme Court, at least we can have a sort of plebiscite each time a new nominee to that body is put forward.” Nothing in the three decades since he wrote those words has lessened their power.
Advertisement
Join the conversation as a VIP Member