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On the demise of Roe

By Dr. Jeff Mirus ( bio - articles - email ) | Jun 24, 2022

In 1973, the US Supreme court made the astonishing discovery, in the words of Justice William Douglas, that there was a right to abortion lurking in “penumbras formed by emanations from” the “specific guarantees in the [American] Bill of Rights”. This “discovery” played a major role in the dissolution of the American moral consensus as represented generally in law. It was a huge step in the triumph of what we call “legal positivism”, which is the assertion that the moral force of the law comes from the will of the lawmakers, that it is judges, legislators, and political executives who are ultimately arbiters of human law.

This belief contrasts sharply with the Christian and natural law traditions in the West, in which the fundamental structure of reality is perceived as a reflection of God Himself, and that in this structure we can discern the difference between good and evil by understanding what things are for, based on their design. Morality, then, consists essentially in using things in accordance with their manifest nature and purposes, and in the natural law tradition which was dominant in the West well into the twentieth-century, this had important consequences for the positive law—the laws put into effect by political means.

The most important consequence was the understanding that any human law contrary to the natural law was by that very fact null and void. Through much of our history, laws were expected to work within this fundamental framework of reality, and while this has always been a very tenuous sort of control in the face of the selfish agendas of political leaders, there was at least a very strong influence of Divine and natural law over human law throughout European history, and in regions that had been profoundly influenced by the European understanding. Even as late as the aftermath of World War II, the United Nations’ Universal Declaration of Human Rights in 1948 was, in effect, a strong statement of the basic rights of the human person as understood through the natural law.

Human rights and Divinely ordained moral structure

Of course it is always difficult for the human person to hold the various aspects of reality, which we perceive partially and piecemeal, in the proper relationship and tension with each other, so that one particular insight does not end up fragmenting the whole. Indeed, we see a classic example of this in the notion of human rights, as emphasized in the UN Declaration, our own American Bill of Rights, and many other legal/political declarations throughout the world. The primary current danger is the separation of rights from duties. For example, the right to life is the other side of the moral duty to protect the lives of all human persons. All genuine rights are of this type. If we have a moral duty to recognize and support some good for all other persons, then we can say that each person has a “right” to that good. At the very least, we may not deliberately interfere with any due good which is proper to the human person.

But how do we determine what goods are “due” to the human person, what goods are “proper” to his or her human nature? A moment’s reflection reveals that this determination should not arise from the mere personal desires of this or that person, for we all know that even our own desires can, in fact, be ill-advised, harmful or evil. The only answer is that we must discern the moral structure of our being either through careful reasoning on the magnificent panorama of reality which we did not create; or by learning what, if anything, the Creator has explicitly revealed about this moral structure. The first thing that we can say about those who are unwilling to do this is that they are not serious about discerning the difference between right and wrong, but only about fulfilling their own desires.

In my brief reflection today, I am hardly going to attempt again to make the case for the specifics of Divine Revelation and Natural Law, but it is a good time to remind ourselves of the utter willfulness of what we have been up against in human law since the disintegration of Christianity as the guide of our moral civilization. It follows that it is not enough to win an occasional judicial or legal victory; it is important to remember how easily our legal and political frameworks disintegrate in populations unguided by a truly human (that is, rational) approach to morality and unguided by a truly Divine (that is, grace-filled) assistance. We have already seen and heard the vicious rants and even attacks by various outraged groups against pregnancy assistance facilities ever since the Supreme Court decision was leaked. This howling violence is so clearly diabolical as to remind us that what we are really up against is principalities and powers.

Formation of persons and culture

Anti-life “conveniences” are only one facet of the evil we face, of course. The very understanding of human nature in its inherent givenness and goodness is under an ever-expanding attack which proves once again its diabolical origins. It seems that everything good about us must be almost jealously damaged, defaced, and destroyed. In a very deficient sense of the term, this is done always in the name of freedom. But this is a freedom in the evil spirit of non serviam: I will not serve! It ought to be obvious by its very vindictiveness that this tearing down of everything good is actually a way of imposing an abject recognition of Satan’s power. It leads to Satan’s victory, which is our despair.

Political/juridical victories are important for the relief they provide and because they are formative. But as with any human discipline, it is far harder to restore order once disorder has been permitted than it is to maintain order from the first. Our culture has been cut adrift from authentic order, and this has obviously begun with the destruction of permanency in marriage and family life, now extending even to a horror of both our reproductive powers and the “constraints” of committed love. It is very good to have a judicial victory, and it is good that this will enable us to fight for hundreds of legal victories around the United States with a better chance of winning. But we know how far moral vision has fled in the regions most affected by our dominant secular culture, including our churches—including within the members and many leaders of even the Catholic Church herself.

Consequently, an even more important spiritual battle must be fought more aggressively as well, without neglecting the political and juridical. We have a long way to go before the United States will have genuinely widespread freedom of education. We have a longer way to go before family life is seen clearly again, and restored through a grace, generosity, and life-long fidelity not only present in the hearts of couples but supported by law. The need for Christian renewal and the need for a sound educational formation throughout the social order are paramount.

We must remember that we had decent laws once, and that we even once opposed secular ideologies on the battlefields of Europe. Yet our own culture and our own spirituality were even then, as history proved, on the verge of collapse. This is sobering, and it cannot be reversed by a single victory nor, for that matter, can virtue ever be reduced to law and politics. Such are my reflections on a welcome decision by our Supreme Court: We have a long way to go before we can have the least bit of spiritual or even cultural security in that ruling.

Jeffrey Mirus holds a Ph.D. in intellectual history from Princeton University. A co-founder of Christendom College, he also pioneered Catholic Internet services. He is the founder of Trinity Communications and See full bio.

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  • Posted by: Jeff Mirus - Jun. 27, 2022 7:06 PM ET USA

    feedback & loumiamo4057: On reflection, I have to agree.

  • Posted by: feedback - Jun. 27, 2022 1:58 PM ET USA

    Dr. Mirus, you are technically correct in your comment below, however I have to second loumiamo4057's sentiment about the silence of Pope Francis. If the UK's PM Boris Johnson felt compelled to label the US Supreme Court abortion decision as a "step backward," the Pope could have said something, especially that he voices his opinions on everything else. Unless, he is now embarrassed to have given green light to Pelosi and Biden to receive Holy Communion while supporting abortions without limits.

  • Posted by: loumiamo4057 - Jun. 27, 2022 10:40 AM ET USA

    Even so Dr. Jeff, a simple "it's a good start" would have been appropriate in my opinion. And given the Pope's willingness to enter politics, witness Ladauto Si, this is a teachable moment and it is not being used.

  • Posted by: Jeff Mirus - Jun. 27, 2022 9:52 AM ET USA

    loumiamo4057: I'm not sure I would expect a comment from Pope Francis on this. The Supreme Court decision is an important political step in the United States, but it does NOT uphold the inviolability of innocent human life. It says that the Constitution doesn't take decisions about murdering the unborn out of the hands of the several States. No significant principle has been established in favor of life; there is just no right to abortion in the Constitution.

  • Posted by: loumiamo4057 - Jun. 27, 2022 6:04 AM ET USA

    I'm wondering why, unless I've missed it, there has been nary a peep from Pope Francis regarding Roe being overturned on the Solemnity of the Sacred Heart of Jesus. It happened as a result of a Catholic majority on the Supreme Court, it happened on the SSHJ, and I would think that the chief Catholic in the world would have found some way to mention it as a positive good for the entire world. I'm just saying.