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Judging Law
Alito and abortion.


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Samuel Alito, now the presdient’s nominee for retiring Sandra Day O’Connor’s Supreme Court seat, concurred in Alexander v. Whitman (1997). His brief opinion there is liable to stir interest on both sides of the Roe debate.

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The case was argued by the distinguished New Jersey pro-life lawyer Harold Cassidy. Basically, Cassidy argued that the state unconstitutionally discriminated against his client–Karen Alexander (and her stillborn child)–by denying tort recovery precisely because the child was stillborn. Had the baby survived birth by an instant Ms. Alexander could have sued various medical personnel for negligently causing the death of her child.

The heart of the panel opinion against Alexander was the distinction–taken to have been established by Roe–between “constitutional persons” and those who are merely persons “as a matter of fact.” The court accepted as true (as it had to in this 12(b)6 action) Cassidy’s assertion that a “stillborn child is a human being from conception.” That truth was nonetheless “immaterial” to the legal issues at hand, the court said. “The question is not whether a stillborn child is a human being from the moment of conception, but whether that unborn ‘human being’ is included within the meaning of ‘person’ contained in the Fourteenth Amendment.” The “scare quotes” around “human being” and “person” are the court’s, not mine or Cassidy’s. Trick or treat.

The “scares” delineate the whole issue about abortion in constitutional law: the claim that there are human beings and even human persons who are not “constitutional persons.” For note well: though this court referred to a distinction between “human beings” and constitutional “persons,” the real distinction is between moral reality and legal usage. Everything the Third Circuit concluded it would have concluded just the same if the claim had been that the unborn are, morally speaking, persons from the moment of conception. The court would have stressed, perhaps a bit more than it did, the distinction between moral (or metaphysical) truth and legal usage. But that is the distinction at work, the difference between the moral and legal orders. Again: The distinction is not between the phrase “human being” and the word “person.” The distinction is between how those words and phrases and all their cognates are used in two radically separate (for the Third Circuit) orders of reasoning.

There surely is a distinction between law and morality. Those who ignore it are deservedly called either lunatic positivists or moral fanatics. But, in a sane world, when it comes to the question of who counts as a subject to whom the most basic duty of justice–do not kill–no one would say that there is difference between morality and law. In a sane world the moral (or metaphysical) truth would compel the legal conclusion. In a sane world we would all recognize what Justinian was among the first to teach: Law is for persons.

Ours is not a sane world. Judge Alito concurred in the Third Circuit’s holding, expressing “almost complete agreement” with it. But his brief concurrence reliably signals that he is sane. Alito said that the “court’s suggestion that there could be ‘human beings’ who are not ‘constitutional persons’ is unfortunate.” Just so. And he was right to observe that the Supreme Court has declared that the unborn are not persons within the meaning of the Fourteenth Amendment. Alito was willing apply the law laid down by the higher Court–but only after signalling that the law he applied was “unfortunate.”

Could a conscientious pro-life judge have done more? Yes. Write a longer and more prophetic concurrence? Maybe. Recuse oneself? That could be justified, though I doubt very much it is obligatory.

What is morally permissible for a judge in Alito’s situation is not the question. The question is whether a pro-life judge had to do more. The answer to that question is, I think, no. No judge is morally permitted to lie about the law. If Alito honestly believes that Roe declared the unborn to be outside constitutional protection, then he must not lie about that. And he did not. If he judged (as he evidently did) that he could give judgment in the case according to governing positive law without himself being immorally complicit in the injustice to Karen Alexander, he could join the judgment. His remaining moral obligation was (one might say) to the truth. He was under an obligation to make sure that readers did not take his concurrence in the judgment to be agreement with the central distinction made by the court. He fulfilled this moral obligation by telling readers he resolved the matter strictly on authority, and not on grounds he himself endorsed.

Gerard V. Bradley is professor of law at Notre Dame and recently served as president of the Fellowship of Catholic Scholars.



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