Publisher’s note: Rafael Domingo Osle He is a research professor at the Center for Law and Religion at Emory University and Professor of Law at the University of Navarra. The opinions expressed in this article correspond exclusively to its author. You can find more opinion pieces at CNNe.com/opinion.
(CNN Spanish) — The Supreme Court of the United States has just issued a landmark ruling in Dobbs v. Jackson Women’s Health Organization (2022) in which it declares that the Constitution of the country does not grant the right to abortion, as the court itself had been affirming for almost 50 years in the Roe v. Wades (1973). The Supreme, in this way, has rectified its own interpretive criterion, breaking the constitutional shield to abortion and returning its regulation to the Legislative Power of the states.
This is, without a doubt, the most controversial and relevant ruling so far this century, not only because of its many implications in the field of the right to life, but also in US constitutional law as a whole. Basically, the Supreme Court itself makes a profound self-criticism by warning of the lack of legal solidity of the revoked sentence. Proper to a court is to recognize rights, protect them, guarantee them, not create them out of nothing. The power of the judges of the US Supreme Court was excessive and had exceeded all reasonable limits from legal logic.
The history of any institution, no matter how prestigious, is full of blots and stains, injustices and immoralities. For this reason, institutions, in order to perpetuate themselves over time and maintain their social prestige, need to purge their past. Harvard University, for example, has recently created a US$100 million fund to compensate the descendants of the slaves it once owned.
The Catholic Church has apologized and paid billions to compensate the victims of the horrific sexual abuse perpetrated by its clerics over the past 50 years. Today, the Supreme Court has redeemed his history by acknowledging the serious mistake he made in 1973, when he acted more like a magician than a judge, by creating an alleged constitutional right to abortion when the Constitution said nothing about it. Something is interpreted (the country’s magna carta), but it is created out of nothing. For this reason, the Supreme Court does not have creative capacity (as the fathers of the Constitution did) but merely an interpreter.
With the Roe v. Wade of 1973, it became very clear in the West that, from that moment, the judges of the highest courts had carte blanche to do whatever they wanted, due to the supremacy of the judiciary over the legislative and executive powers. Roe v. Wade enthroned the judiciary and weakened the democratic system as a whole.
From a government of the people, which is what democracy is, this and other sentences gave way to a sort of government of the judges, which spread to Western democracies and has lasted for decades. The new ruling places the Supreme Court in a much more humble and discreet position, despite the social uproar caused, so it can only bring good consequences to the US and the world.
On the other hand, the new sentence constitutes a good opportunity to review the arguments that are being put forward in favor of abortion, many of which have become obsolete. For example, the legal criterion of the viability of the fetus to justify the right to abortion, defended in Roe v. Wade (1973), is no longer sustainable, and it is less so with each passing day and science discovers the beauty and richness of human life, always dependent and vulnerable in any of its phases.
Denying a constitutional right to abortion as the new sentence does supposes a new commitment to human life in its earliest and most fragile phase. Human life, all human life, is a gift, a gift, not to a specific person, but to humanity as a whole, which expands. Therefore, no one can have a constitutional right to end human life; yes, instead, a right to protect her, care for her, to feel socially accompanied and financially protected when it comes to an unwanted pregnancy, even to give her up for adoption once she gives birth. The relationship between mother and child is not a merely bilateral relationship: it is a community relationship, of an entire society that is jointly and severally responsible for the burden that any pregnancy entails.
For decades, legal systems have not been successful in regulating life. They have allowed the social, labor and psychological marginalization of pregnant women. They have criminalized abortion by jailing the mother who performed it (mistake of the book!). Subsequently, they gave the mother complete freedom to abort and allowed the development of a powerful and influential industry around abortion that has generated succulent economic benefits.
In my opinion, the time has come to deal with the topic of abortion in its radical nature and to approach each human embryo not as something over which one has a right, but as someone as biological as it is sacred, as human as it is divine, with a capacity to love, this is the determining factor, similar to ours.
The paradigm of the 1968 revolution that tried to solve the drama of abortion by reducing it, without scruple, to a matter of the mother’s choice, must give way to a new paradigm, much more humane and compassionate, that approaches abortion from solidarity . Every human life counts. It is not up to the legal system to grant the life of the embryo, but to protect it. Any legal system that is committed to the free elimination of human life produces a law that is unsupportive, antisocial, and profoundly inhuman. If someone has the right to live, it is life itself, human life in any of its phases.