After Roe: The Pious Daydreams of the Integralist Conservatives
Adrian Vermeule of Harvard Law School tells us what the Catholic right fervently hopes for in the wake of Dobbs
I hope subscribers to this newsletter will indulge me devoting this week’s three posts to reflecting on aspects and implications of the Dobbs decision. It really is that big of a deal. Monday’s post looked at possible next steps in the effort of the Supreme Court’s conservative majority to strip social liberalism out of the Constitution. Wednesday’s was a more personal statement of where I come down on abortion, in the form of a letter to my teenage daughter. Today’s looks at the outer limits of social-conservative hopes for remaking the Constitution.
There are of course many other topics worth discussing, and I’ll move on to those next week. On that note, I also wanted to let everyone know that my first post next week will appear on Tuesday instead of Monday because of the Independence Day holiday. Happy 4th to all!
A newsletter with the title and intent of this one needs to pay special attention to Adrian Vermeule, the most intelligent, ambitious, and radical of the so-called integralist writers on the social-conservative right. Vermeule is important not only because of the explicitly illiberal character of his ideas (which amount to an endorsement of the right using the full powers of the federal government to impose on the United States an explicitly anti-pluralist vision of a comprehensive highest good rooted in Roman Catholic theology). Vermeule is also important because, despite the extremism and illiberalism of his ideas, he is taken seriously by mainstream media outlets and writers—and he has tenure at Harvard Law School, placing him close to the head of the line for a top executive branch job in a Republican administration of the future.
I’m sure I’ll have occasion to respond more fully to Vermeule’s ideas down the road. In today’s post, I merely want to focus on a short essay he’s written in response to the Dobbs decision overturning Roe v. Wade (1973) and Casey v. Planned Parenthood (1992)—because it states with admirable concision where the most intelligent, ambitious, and radical of the social conservatives would like to go next. For a liberal, that destination is extremely unwelcome. But thankfully, the country is unlikely to go there anytime soon (if ever).
Step by Step Toward a National Abortion Ban
In the piece, Vermeule begins by celebrating the Dobbs decision. That’s more surprising than one might suppose, because the decision is a full-throated vindication of conservative “originalism,” and Vermeule is a well-known critic of that approach to constitutional interpretation. Indeed, his latest book (Common Good Constitutionalism) and the Atlantic essay on which it expands are, among other things, polemics against the originalist tendency to defer to the text of constitutional documents and the intent of the authors who wrote them rather than seeking to bring positive law into conformity with (supposed) higher principles, especially what Catholic theologians like to call natural law.
Judged by that standard, Dobbs is a failure, since it merely denies that there is any right to an abortion in the Constitution. Dobbs therefore returns abortion to the political realm, where numerous states, and potentially the federal government, will opt to keep the procedure legal, a gross violation of what Vermeule and his ideological allies believe natural law demands.
Yet in his post-Dobbs essay, Vermeule writes like an incrementalist, rejoicing at the strong step in the right direction taken by the Court in its decision overturning Roe and Casey.
Rather quickly, though, he raises what he hopes will come next: the Court either permitting a federal law banning abortion nationally or following the arguments of Catholic moral philosopher John Finnis to find “an affirmative constitutional right of personhood for the unborn [that] (at least in some circumstances) bars states and the federal government from authorizing abortion.”
High Hopes, Low Likelihoods
Vermeule’s analysis of these two possible paths forward is smart, as always. He recognizes that the two approaches contradict each other, since the first would follow from deference to democratic lawmaking, while the second would rest on a judicial edict overriding democratic outcomes in many states. The latter path would, in fact, be a much graver act of what pro-life First Things magazine once denounced, in the context of Roe and Casey, as “the judicial usurpation of politics,” since neither Roe nor Casey required legalized abortion through all nine months of pregnancy but the Finnis approach would require “at least in some circumstances” abortion to be banned outright, presumably from conception on, regardless of what public opinion would favor.
But that isn’t the only obstacle to achieving a nationwide abortion ban. There’s also the fact of Chief Justice’s John Roberts’ “marked swing to the left” (leading him to concur with the judgment in Dobbs without joining the full opinion overturning Roe and Casey). And Justice Brett Kavanaugh’s concurring opinion in Dobbs, which (as Vermeule notes) “expressly rejects” the Finnis approach, along with “a series of other claims that public officials or pro-life litigators might advance in coming months and years.” Put it all together and we appear to be left with just four potential votes in favor of pronouncing a nationwide ban on abortion.
Though that falls short of a majority, Vermeule advises his allies on the right to push ahead in faith that they might yet prevail. They should read passages of Dobbs that appear to block forward progress for their position in terms of what he calls a principle of “ambiguity” that permits hope for further advances.
Right now, it may seem difficult even to imagine assembling a congressional coalition to enact a nationwide abortion ban, or a coalition of five justices to read the Constitution as creating an affirmative constitutional right to life. But even a few years ago, it seemed equally difficult even to imagine assembling a coalition of five justices to overrule Casey and Roe. The limits of legal and political imagination are treacherous, and susceptible of grave bias towards the status quo. If we have learned anything from the winding path of the Court’s due process decisions over the years, it is that the interpretation of the Constitution is more fluid, more changeable through symbolic and material legislation, administrative action, litigation campaigns, and judicial appointments than (many) law professors acknowledge at any given time. Who knows what new justices, new arguments, new statutes and regulations, and even new constitutional decisions the next presidential administration may bring?
That’s a nice pep talk, but it isn’t much more than that—especially when we consider that there is no positive evidence that any of the remaining four conservatives justices currently on the Court are at all receptive to the Finnis case for an “affirmative constitutional right to life.” That’s true even of Justice Clarence Thomas, the most rightward member of the Court, and the one most open to breaking sharply from precedent (stare decisis).
What Vermeule implies could be four votes in favor of the Finnis position would in reality be more like zero.
An Imagined Future
The other path forward—the Court permitting a federal law banning abortion nationally—is even less worthy of serious consideration at this point, because it’s contingent on such a law passing Congress in the first place, which is unlikely given the shape of public opinion on the issue.
Could this change over time? Of course. Public opinion is fluid. Given the right circumstances, it’s possible that large numbers of people could become committed pro-lifers demanding that Congress stop the fetal holocaust taking place every day in our country. Conservative Supreme Court justices could also become more radical and much bolder over time. But how likely is that to happen? Not very, especially in the short-to-medium term. Much more likely is a long, slow, grinding war of attrition between defenders and opponents of abortion rights in states across the country.
If they wish, Adrian Vermeule and the other integralists can celebrate this as an advance over where we were before Dobbs was handed down. But it’s a far cry from where they imagine us to be.
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