Commentary

Why Not Make Roe v. Wade a Litmus Test?

John Horvat II
By John Horvat II | July 11, 2018 | 2:03 PM EDT

U.S. Supreme Court building (Screenshot)

With the choice of Brett Kavanaugh as candidate for Supreme Court Justice, the confirmation hearings will soon begin with a now familiar ritual of evading Roe v. Wade.

Liberals will ask the nominee to define himself on the infamous 1973 decision that liberalized abortion. He will find ways of evading the question in strictly legal terms such as admitting it is the present law of the land. With the collaboration of the media, they will then try to paint the person as religious zealot forcing the nominee to find a Kennedy-esque (John not Anthony) way of explaining how he will separate his religious beliefs from his judicial decisions.

Throughout it all, both sides will insist that the Roe v. Wade must not be a litmus test that will decide who the next justice is. As much as public figures and the media try to frame the debate in other terms, the abortion question is the elephant in the room.

Indeed, even those who are pro-life are encouraged not to bring the subject up. Sarah Huckabee Sanders confirmed that the President, when meeting with candidates, did not intend to ask any of them about their views on Roe v. Wade.

Houston’s Cardinal Daniel DiNardo, president of the U.S. Conference of Catholic Bishops, has pleaded that Roe v. Wade not be made the litmus test for the decision. He claims the flawed nature of the ruling makes it a bad standard for judgment that also excludes other social issues.

In any case, this long-observed ritual of evading stands against Roe has served to keep abortion legal. As things become more polarized, however, this tactic is failing.   

A De Facto Litmus Test

The fact is everyone knows an abortion litmus test already exists for the choosing of new justices. As it now stands, no Democratic nominee can secure the office without professing an allegiance to Roe as “settled law.” During Senate hearings, most Republican nominees carefully express the least animosity and most ambiguity regarding Roe as a way to tiptoe along the path to office.

The ambiguity of Republican-nominated justices has been so pronounced that several like Justice Sandra Day O-Connor and Justice Anthony Kennedy himself have surprised the moderate conservatives that supported them by joining the other side on abortion and other social issues. Only careful vigilance on the part of now wary conservatives has finally resulted in judges who more securely support the pro-life cause.

 

A New Litmus Test

Thus, there is no doubt that a litmus test favoring abortion exists. It is an extra-official litmus test that hovers over the debate whenever a justice is chosen. It is time to challenge this strange ritual that has become so much a part of the judicial selection process.    

Perhaps the best thing to do is propose a counter-ritual. A more daring question needs to be asked: Why shouldn’t opposition to Roe v. Wade be used as a litmus test to decide who will be the Supreme Court Justice? Instead of apologizing for opposing Roe, it would be better to embrace it.

It is time to stop all the ambiguity and get to the core of the matter. Litmus paper tests are simple ways to understand the nature of something by focusing on a single factor that proves decisive.                                                                                                                                                                                                                

Indeed, if Roe is already so decisive in securing liberal judges, it should also serve to determine bona fide conservative judges. What is good for one should also hold true for the other.

The Abortion Issue is Decisive

Opponents, especially moderates, claim that the issue is not decisive. There are so many other issues that need to be addressed that are independent of the abortion issue.

To someone who is against abortion, such an objection is extremely illogical. To put it bluntly, as it needs to be put, abortion is murder. Roe paved the way to make abortion legal nationwide. Thus, it is unacceptable to make someone the nation’s highest interpreter of justice, if that person believes that murder is acceptable under certain circumstances to the tune of as many as one million lives every year.

One of the major purposes of law in modern society is the protection of life and property. Thus, the taking of innocent human life is not a minor issue upon which justices can argue and debate like union rules or voting requirements.  Protecting innocent life is fundamental. Abortion is contrary to the purpose of law. It breaks law—a higher law.

Moreover, abortion defeats the end of justice, which is to give to each what is due. In this case, the innocent unborn child has done nothing to deserve death. It makes no sense that the highest judicial authority would support this miscarriage of justice.

This distorted vision of justice and law naturally affects all other decisions. Indeed, abortion is an ideal litmus test for determining who should be the highest judicial authority in the land.

Affirming a Moral Law

Such considerations would normally be common sense were these not tragic times. What determines law today is much more those things that favor unbridled passions than the traditional standards found in the Constitution.

Those who defend human life and God’s law should oppose the liberal litmus test and its strange ritual. They should at least denounce it for what it is: a double standard test favoring abortion. However, they should also consider using opposition to Roe as a litmus test.

It would be the left’s worst nightmare. It would “unsettle” the “settled laws” that liberals think are so securely entrenched.  The overturning of Roe would not stop at the state level but shake the whole abortion edifice and undermine the premises of the sexual revolution.

Worst of all for liberals, the defeat of Roe would point to the existence of a higher moral law that must be respected. It would affirm objective norms of right and wrong, valid for all times and places. The overturning of Roe would start to introduce sanity back into law.

It is time to abandon the liberal litmus test for Supreme Court justices. No one should be afraid to affirm an opinion on this vital issue. The time for apologizing for opposing Roe is over. Let the nomination process be truly free to choose the best nominee.   

John Horvat II is a scholar, researcher, educator, international speaker, and author of the book Return to Order: From a Frenzied Economy to an Organic Christian Soceity--Where We've Been, How We Go Here, and Where We Need to Go. He lives in Spring Grove, Pennsylvania, where he is the vice president of the American Society for the Defense of Tradition, Family and Property.

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