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A Supreme (Court) Challenge

[UPDATE: US Court of Appeals Judge Brett Kavanaugh is Trump’s pick.]

We have been thinking a great deal about the announced retirement of Supreme Court Justice Anthony Kennedy and the man or woman who will be nominated to become his replacement.

For Americans focused on respect for the dignity of the human person, this latest turn of events suggests that there are two challenges before us.

The first short-range question is who the nominee will be, and, once the political bloodletting ceases, who will be confirmed? While we anticipate a Bork-type showdown in the deeply divided United States Senate, we feel somewhat confident that the best nominee will be confirmed.

The second question addresses the future. It deals with a subject that should require a much deeper conversation that addresses how we want the Court to rule, should a challenge to Roe v. Wade/Doe v. Bolton be framed and brought before the Court.

There are those who argue that such a case should result in the Supreme Court ruling that a decision on whether or not abortion should remain legal belongs to each of the 50 state legislatures. That approach is called the states’ rights to abortion solution. The result would be that some states would allow all surgical and medical abortion, other states would permit some surgical and medical abortion, and still others would ban all surgical and medical abortion.

Note that if this approach were to be the outcome of a Supreme Court decision overturning Roe v. Wade and Doe v. Bolton, it is likely that contraceptives that cause abortion and clinical abortions resulting from reproductive technology such as in vitro fertilization would not be infringed upon at all.

The only way that every abortion could be ended in America would be if the Court addressed the question that Justice Harry Blackmun posed when he wrote the 1973 Roe v. Wade decision. In that decision he stated: “If this suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the Amendment.”

While it also true that Blackmun went on to say that at that time, in 1973, the word “person” did not apply to the preborn child in his opinion, that was 45 years ago, and much has changed in the intervening years, including the advancement of science and technology. While the 1973 Supreme Court was not interested in the science, we would hope that a current Court would be, should the question come before them.

It is safe to say that the personhood argument in the context of a specific legal case would be on solid ground. Such a case would challenge the Supreme Court to address the question of the facts about the human being—his biological beginning until birth—based on scientific facts.

Clearly, those who brought such a case would have to be prepared for the tough questions on contraception, in vitro fertilization, and so on, but it is not impossible to envision such an argument being effective and winning the day for the babies.

Only one thing stands in the way of such a dramatic event occurring, and that is the will to fight for it. The level of ignorance in our nation today is so frightfully high that many, including Catholic bishops, priests, and educators, fail to see the facts about abortion, especially the fact that every single abortion, no matter how it occurs, kills a human being.

We have our work cut out for us, to be sure. But we should never forget these sobering words written by one of the greatest constitutional scholars of our time, Professor Charles Rice:

Roe applies precisely the principle that underlay the Nazi extermination of the Jews, that an innocent human being can be declared to be a non-person and subjected to death at the discretion of those who regard him as unfit or unwanted. The Justices who triggered the abortion avalanche by their own free decision, are no more defensible than the Nazi judges who acquiesced in the crimes of that regime and the functionaries who administered its decrees at Auschwitz and similar places. . . .

As Pope John Paul II said at the Capitol Mall in 1979, “No one ever has the authority to destroy unborn life.” Until that conviction is restored among the American people, there will be no chance of enacting the licensing and other restrictions and prohibitions which will be the only possibly effective ways of preventing the use of early abortifacients. Nor will there be any chance of undoing the legally sanctioned practice of euthanasia.

We cannot afford NOT to fight for human personhood and teach our fellow human beings, no matter who they are, why this is vital to protecting every innocent human being—born and preborn.

To do less is to succumb to the evil one. And that, my friends—the task of confronting the Supreme Court with human personhood—is the SUPREME CHALLENGE.