There Is No Honor in Abortion

“That leaves us with just one question: who’s Duvall?” My professor posed this question in his semicomedic crusty drawl, and the class of would-be lawyers sat silent. The professor—aptly named “Saltzburg”—carefully chose a digression from legal points for every class. His digressions, he intended, would give us the wisdom he knew we would someday need. 

On this particular day, he brought up an old Supreme Court case about hearsay, Queen v. Hepburn, decided in 1813. The case has no legal significance today. Saltzburg brought it up so he could talk about the one justice who dissented from the Court’s otherwise unanimous ruling: Gabriel Duvall. 

Duvall today is almost a no-name. He served in the shadow of the great Chief Justice John Marshall. And he hardly did any work. In 24 years on the Court, he authored only 15 majority opinions, all minor ones. Almost always, Duvall simply voted with Marshall. The only time he wrote an opinion dissenting from Marshall’s was Queen v. Hepburn. In Queen, a slave claimed her ancestor had come to America from England as a free woman. That would have entitled the slave to freedom. But she could prove her descent from a free English woman only by hearsay. Duvall wrote that the Court should make an exception to the age-old rule against hearsay and let the slave make her case. 

Duvall wrote that freedom is a “natural inherent right.” “It will be universally admitted,” he wrote, “that the right to freedom is more important than the right of property. And people of color, from their helpless condition under the uncontrolled authority of a master, are entitled to all reasonable protection.” 

And that was Duvall’s mark on history. So Duvall is maybe not quite a no-name. His name, in fact, lives on in honor. And his legal intuition lives on in the modern hearsay rule, which now has exceptions for family history.

Speculation today is that two associate justices of the current Supreme Court who have yet to seal their names to history are now tempted into the shadow of another chief justice: John Roberts. As the speculation goes, Roberts wants either Amy Coney Barrett or Brett Kavanaugh to join him in declining to overrule Roe v. Wade and Planned Parenthood v. Casey in Dobbs v. Jackson Women’s Health, the abortion case currently before the Court. 

Overruling Roe and Casey is the only legally correct decision. It’s also the only honorable decision. Two centuries from now, a crusty law professor may ask “who’s Barrett?” or “who’s Kavanaugh?” And his students will learn who from our time readily admitted that the right to life is more important than freedom of choice—and that unborn babies, from their helpless condition under all of us, are entitled to all reasonable protection. 

About Sean Ross Callaghan

Sean Ross Callaghan is an attorney and a former law clerk for a U.S. District Court judge. He served in the Treasury Department, the Justice Department, and in the D.C. Attorney General’s office as an Assistant Attorney General. He is currently a tech entrepreneur. Follow him on Twitter @seanrcallaghan.

Photo: Win McNamee/Getty Images

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