No Conservative Case for Upholding Roe v. Wade

In the wake of Politico’s publication of the leaked draft opinion in Dobbs v. Jackson Women’s Health Organization, it was only a matter of time before a housebroken conservative penned “the conservative case for upholding Roe.” We have the New York Times’ Bret Stephens to thank for such a terrible take. Stephens on Tuesday announced that “Overturning Roe Is a Radical, Not Conservative, Choice.”

Yes, you read that correctly. You’re not a real conservative if you think Roe—which licensed the deaths of more than 60 million babies over the course of nearly 50 years—should go.

Stephens begins by telling us what he thinks it means to be “conservative”: 

It is, above all, the conviction that abrupt and profound changes to established laws and common expectations are utterly destructive to respect for the law and the institutions established to uphold it—especially when those changes are instigated from above, with neither democratic consent nor broad consensus.

Indeed. Which is one of the many reasons why Roe is such an abominable decision. Seven unelected lawyers in Washington, D.C. abruptly stripped the people of our ability to govern ourselves with respect to a question of profound moral importance. Every state’s abortion laws were swept away with the stroke of a pen, replaced with a hackneyed and barbaric trimester framework. It’s been open season on the unborn ever since.

What Justice Samuel Alito’s draft opinion would do is precisely the opposite of Roe’s top-down, one-size-fits-all ethos. It is an undoing of Roe’s radicalism. It returns the question to the states, which is where it was until 1973. 

As C. S. Lewis noted in another context, the fastest way to get back on track if one has taken a wrong turn is not to press forward but, rather, to turn backwards. What could be more conservative than that—to turn back to the way things once were, to avail ourselves of the wisdom of our forebears?

Stephens then confusedly asserts that conservatives “are philosophically bound to give considerable weight to judicial precedents, particularly when they have been ratified and refined—as Roe was by the 1992 Planned Parenthood v. Casey decision—over a long period.” He also suggests that originalism lends support for Roe!

Regarding precedent, judicial conservatives certainly care about it. Any political system, any country, that aims to establish the rule of law—“a government of laws and not of men”—must. But judicial precedents cannot overcome the original meaning of the Constitution. Where the two conflict, the Constitution must prevail.

Stephens even concedes, in anodyne language, that Roe is “an ill-judged decision”—and yet, he would have us live with it just because it has persisted in our law. The Constitution says otherwise, as Alito is at pains to demonstrate. Is it also “conservative” to ignore the Constitution?

For Stephens, it just might be.

After some obligatory parade-of-horribles talk (Stephens mentions unsafe back-alley abortions as a reason to keep Roe around, but he strangely does not examine whether anti-homicide laws should be repealed on the ground that they make committing homicide more dangerous for a would-be killer) and speculation that oveturning Roe could hurt Republicans electorally (Earth to Stephens: the whole point of gaining power is to use it to secure your preferred policy objectives, which is something Democrats understand very well), he pivots to his supposedly true fear: the damage to the Court’s “legitimacy” that will result from scrapping Roe.

Such a decision, Stephens contends, will “discredit the court as a steward of whatever is left of American steadiness and sanity, and as a bulwark against our fast-depleting respect for institutions and tradition. . . . A court that betrays the trust of Americans on an issue that affects so many, so personally, will lose their trust on every other issue as well.”

One suspects that, for Stephens, it’s the ruling class’ perceptions of the Court’s legitimacy that matter, not the broader public’s perceptions. And because the ruling class is rabidly pro-abortion, naturally, for the Court to rid the country of Roe would deal a mortal blow to the Court’s legitimacy. But we always knew that progressive elites would have a meltdown if Roe was even tweaked to be more restrictive.

The Court cannot tailor its decisions to appease the loudest, most unhinged elements of society without forfeiting its legitimacy. The law means what it means regardless of what people think about it. The Court’s duty is to say what the law is. Its failure to do that, not its failure to kowtow to liberal elites, is how it loses legitimacy.

Stephens concludes by urging the justices to be prudent. Prudence—“the virtue that disposes practical reason to discern our true good in every circumstance and to choose the right means of achieving it”—is undoubtedly vital. But prudence without courage—that virtue which “ensures firmness in difficulties and constancy in the pursuit of the good”—is useless. Courage actualizes prudence; it makes prudence possible. To preserve Roe would be neither prudent nor courageous. It would be absurd and cowardly. Nobody thinks Roe is a strong legal decision; beyond that, it is a moral atrocity. There is no defense of it that doesn’t amount to, “I think our current abortion regime is good.”

But if you think that, I have news for you: You’re no conservative.

About Deion A. Kathawa

Deion A. Kathawa is an attorney who hails from America’s heartland. He holds a J.D. from the University of Notre Dame and a B.A. from the University of Michigan-Ann Arbor. He is a 2021 alumnus of the Claremont Institute’s John Marshall Fellowship. Subscribe to his “Sed Kontra” newsletter.

Photo: Derek Davis/Staff Photographer

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