Being genuinely pro-life requires concern for both the mother and the child

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here is a profound article in National Review’s special edition of November 29, 2021, “End Roe,” by O.C. Snead, professor of law and bioethics at Notre Dame, on the vision underpinning Justice Harry Blackmun’s opinion in Roe v. Wade — a vision totally disconnected from the Constitution, and in no way dictated by it. It is a vision of atomized human beings, unbound by any unchosen duties arising from natural relationships, in constant competition with one another.

For the late Justice Blackmun, the fetus is merely an uninvited intruder in a woman’s body, against whom she is entitled to employ lethal force to remove. That contrasts sharply with Professor Snead’s own description of a “woman and her biological offspring, one inside the other and utterly dependent on [her], intertwined to a degree found in no other human relationship.” (Reading Snead, I was reminded of the shiurim of Rav Moshe Shapira on the men of Sedom, whose great evil derived from their denial of the complex interrelationship and interdependences of all beings.)

Blackmun effectively divided the world into two categories: “persons,” who bear rights; and “non-persons,” who live at the sufferance of persons, according to the latter’s interests and desires. Without explanation, he consigned the legal and moral standing of the unborn child to the exclusive private judgment of the mother. From there it was as simple matter of tallying up the interests of the woman — freedom from the emotional and physical burden of raising a child, the possible stain of illegitimacy, the threat to maternal health, the suffering of an unwanted child (ignoring the millions of those couples eager to adopt).

To Blackmun’s list, the Court in Casey v. Planned Parenthood added the freedom of the mother to make choices based on “her conception of her spiritual imperatives and place in society,” which calls to mind Justice Antonin Scalia’s acid quip about constitutional reasoning at the level of messages in a fortune cookie.

All these factors, Blackmun asserted, again without serious explanation, plainly outweighed the state’s interest in protecting unborn life or fostering respect for life in general.

Had the lower courts in either Roe v. Wade or Doe v. Bolton bothered to examine the lead plaintiffs or ascertain whether they even knew what they were alleged to have said in their affidavits, they would quickly have recognized how simplistic Blackmun’s vision was. Neither Norma McCorvey (Jane Roe) or Sandra Cano (Mary Doe) wanted an abortion or ever had one. Both gave birth to the children with whom they were pregnant at the commencement of the litigation.

Neither had any desire to be the avatar for a “right to abortion.” In an affidavit submitted thirty years after Roe, McCorvey stated that she did not even know what the word abortion meant; she thought it referred to a means to prevent a child from coming into existence.

In her affidavit from 2003, Cano says simply, “I did not need an abortion; I needed help.” Far from abortion being an expression of freedom, she saw it as “too much the will of others... too much the will of society that finds abortion more convenient than commitment to the well-being of the mother and child.”

Blackmun’s image of atomized individuals, one of lesser standing, in conflict, according to Professor Snead, cuts off both mother and child from possible public and private sources of genuine aid and protection. That protection depends upon viewing mother and child as a dyad in crisis. “The response of any decent society when confronted with a mother and child in crisis is to rush to the aid of both, surrounding them with protection, support, and love before, during, and after the child is born,” he urges.

SNEAD THEREBY WARNS US — i.e., those of us who consider ourselves pro-life — against any smug assumption of virtue. Being genuinely pro-life requires concern for both the mother and the child, a willingness to provide the “help” Sandra Cano needed.

In the aforementioned issue of National Review, Kathryn Jean Lopez introduced readers to the extent to which the pro-life movement has taken that imperative seriously. There are, for instance, 2,700 pregnancy centers across the US, without even counting the number of maternity homes. That is three times the number of abortion centers nationwide. Most of the vast array of services are provided free: ultrasounds, counseling, assistance with adoption, and economic support, in the form of car seats, baby clothes and diapers.”

Alexandra DeSanctis, writing in National Review after Dobbs, describes Mary’s Shelter, which provides housing for expectant mothers whose families and partners are pressuring them into abortions. Blue Haven Ranch in Texas offers a housing community for pregnant women and their children. Aubrey Schlackman, the ranch’s founder, says, “If I can offer these moms and babies a safe, structured first year of life, of calm and stability — that can change whole generations.”

Private giving and volunteerism, however, will not be enough. “Support for vulnerable mothers [will] require more than just heroic efforts from civil society,” writes Patrick Brown of the Ethics and Public Policy Center. John Seago, legislative director of Texas Right to Life, told the Atlantic that a post-Roe society oriented toward providing support to pregnant women “would require a higher level of commitment and investment” than the pro-life movement has previously shown.

Acknowledging that fact, Texas,has committed $100 million to the state’s Alternatives to Abortion program. Other initiatives that states can take include funding a wide range of pre- and post-natal assistance, including home visits, extending Medicare coverage after birth, strengthening prohibitions against discrimination because of pregnancy or parental status, tax credits for children from the date of birth or even during the months preceding birth.

The more pro-life conservatives focus on support for mother and children, the better they will be able to refute the progressive claim that abortion restrictions are nothing but expressions of male power and control.

LEST ANYONE THINK that support for mothers and children is confined to the United States or is primarily a phenomenon of the Catholic community, Israel boasts at least two religious organizations, Efrat and Just One Life, dedicated to reducing the annual toll of 50,000 abortions in Israel. These organizations provide the support — emotional and financial — during pregnancy and thereafter that is often the difference between a decision to abort and not.

The late Dr. Eli Schussheim, the long-time director of Efrat, told me in 2004 that of the 17,000 women helped by Efrat until then, not one had ever complained that she had made the wrong decision in going forward with her pregnancy. Indeed, a very high percentage of Efrat’s 3,000 volunteers are from the ranks of former beneficiaries. Helping other women through pregnancy is their deepest expression of gratitude for the child who entered the world with Efrat’s help.

A Dangerous Idea

Flush with excitement from a nearly unbroken series of Supreme Court triumphs for the conservative legal movement — expanding the ambit of the Free Exercise Clause and narrowing the Establishment Clause’s prohibition of state support of religious institutions; solidifying the right “to bear arms,” not just possess them; limiting the power of administration agencies to advance major societal changes by decree; and the revocation of the “right” to an abortion — Newsweek’s Josh Hammer urges the conservative legal movement to go on the offensive, to eschew judicial restraint in favor of the pursuit of “justice” and the “common good.”

Hammer is a generally sensible young man, but his proposal for conservatives to use the courts as their battering ram for achieving his ideal of “justice” is not only unfaithful to the constitutional blueprint but dangerous and self-defeating. Hammer shares with his progressive adversaries an aversion to the messy, time-consuming, and frustrating work of forging legislative majorities by persuasion and compromise.

He prefers the votes of five Supreme Court justices, acting as Platonic guardians, to determine the good. Under his dispensation, the Supreme Court would no longer be “the least dangerous branch” (the title of Professor Alexander Bickel’s paean to judicial restraint) envisioned by the Founders, but the most dangerous, with the fewest people making the most important societal judgments and subject to the least outside constraints.

And by explicitly turning the Supreme Court into a forum for political and ideological disputes, largely unmoored from the Constitution, Hammer would open the door to treating it as such. What would remain, for instance, of the argument against politicizing the Court through all manner of court-packing schemes?

Those who change the rules for temporary advantage usually find that those changes come back to haunt them. Just ask the late former Senate majority leader Harry Reid, who got rid of the filibuster for judicial appointments, only to watch his successor from the opposite side of the aisle, Mitch McConnell, use the absence of the filibuster to push through three Supreme Court nominees, who all voted to overrule Roe v. Wade.

Hammer would like to see the Supreme Court declare unborn children to be “persons” for purposes of the Constitution, and thereby impose a national ban on abortion. I hope he studied the results of last week’s referendum in Kansas (a safe red state) to overrule the state supreme court’s recognition of a “right” to abortion under the state constitution. Opponents of the referendum won in a landslide.

If the American people have to choose between an absolutist ban on every abortion — a position most often identified with the Catholic Church — and a “right” to abortion, they will choose the latter. Hammer should keep that in mind.

(Originally featured in Mishpacha, Issue 923. Yonoson Rosenblum may be contacted directly at rosenblum@mishpacha.com)