The disappointing 9-0 Supreme Court decision striking down the challenge to the FDA’s loosened restrictions on the abortion pill, mifepristone, is a tragic example of everything that is wrong with the American legal system.
The Court reduced the case to a procedural problem of standing—the right of a party to represent a cause due to direct involvement and injury of a case. The justices claimed the challengers, a group of doctors, had no standing because they could not prove that they sustained “injury in fact” since they had never been forced to provide follow-up care for patients using the medication.
Thus, although qualified to opine about the dangers involved with the medication, they could not address the threat the new policy posed to women and their unborn children.
Sidestepping the Problem
The case satisfied no one since it did not resolve the matter but kicked the can down the road.
Justice Brett Kavanaugh suggested that the case be taken to the legislative or executive branches, where it will be subject to the whims of the party in power. Justice Clarence Thomas was more helpful by outlining ways prolifers might frame the case to find standing.
On their part, pro-life lawyers promise to return to the Supreme Court with similar cases, changing their approach. After overcoming the standing obstacle, they hope to get to the actual merit of the case and its danger to women and the unborn.
The Crisis Inside Law
However, the problem is much deeper than procedural or technical matters. This decision reflects the crisis inside modern law that sidesteps and ignores moral considerations.
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Detaching itself from common law and natural law, modern law took a radical turn after the Second World War. It made the individual the determinant of what law is—and, therefore, subject to all human whims and passions. Such legal theory abhors any appeal to a higher law that suggests the existence of a universal law derived from human nature.
In this way, modern law appears to be morally neutral. However, refusing to deal with moral matters is itself a moral decision. Indeed, not honoring morality in law favors immorality by default. This new legal system ultimately defeats the purpose of law, works against the common good and leads to chaos in society.
A New Notion of Law
The notion of law has changed. It is no longer based on the classic Thomistic definition of law as an ordinance of reason for the common good promulgated by a public authority with jurisdiction over a community. Such a classical legal theory channels participation in the community to the benefit of all. It sees the individual interest and the common good as complementary goals that are not mutually exclusive.
Modern law recognizes no such common good. The progressive advocates dominating modern law see law as a means to facilitate an ever-widening and evolving exercise of personal autonomy inside society. This opinion is expressed in the famous decision, Planned Parenthood of Southeastern Pennsylvania v. Casey: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
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The individual, not the community, is the central character in this framework. The law works to minimize conflicts in the pursuit of individual autonomy, often by striking down customs and morals.
Procured abortion, for example, is seen as an expression of this personal autonomy and must be defended against the demands of the common good that assigns duties and responsibilities associated with procreation.
Denying Standing
This central focus on the individual explains why the Supreme Court denied standing to the challengers in the abortion pill case.
Being supreme, the individual is the one who must determine the harm in a manner that must be distinctive and palpable.
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Even doctors who see the concrete dangers involved in the pill cannot represent or warn those in danger. An unrelated individual cannot present a “generalized grievance” harmful to the public at large. It must be “injury in fact” that provides standing in cases.
Curiously, the party most affected by procured abortion has no standing—the unborn baby. This party sustains the greatest “injury in fact,” being deprived of life. The individual’s autonomy expressed in the mantra, my body, my choice, trumps any rights of the unborn to live.
Even the American Supreme Court allows exceptions to its rule by allowing third parties to represent those who cannot protect their own rights and interests. The pro-life argument applies this exception to the most vulnerable unborn. It also defends life from the perspective of the common good, which is the purpose of law.
It Is Wrong to Deny Standing
Thus, the Supreme Court is wrong in denying standing to those who challenged the abortion bill for many reasons.
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From the classical legal tradition, the legalization of procured abortion attacks the common good toward which law must be oriented. The demographic time bombs now ticking worldwide give testimony to the massive harm that will soon befall most nations because of population-control measures like abortion.
From a perspective of natural law, unfortunately no longer recognized in modern law, the government has no right to legalize intrinsic evils like procured abortion.
Everyone Should Have Standing
Indeed, everyone should have standing against abortion because it attacks the common good, leaves the unborn without means of defense and will create countless “injuries in fact.”
However, the false legalism of individual autonomy denies this standing, yielding to the tyranny of selfish individualism alone to determine the law. It denies the material and spiritual links that bind humanity together with the Creator.
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All this will have grave consequences. To paraphrase John Donne’s “No man is an island.” Every man’s death diminishes me because I am involved in mankind. When the bell tolls to mark the death of civilization, we will need not ask for whom the bell tolls. It will toll for me.
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