Remove "Sense of Senate" Provision from S. 3

Letter to the Senate from Cardinal Anthony Bevilacqua

September 12, 2003

Dear Senator:

The Senate will soon appoint conferees so that S. 3, the Partial-Birth Abortion Ban Act of 2003, can receive its long-overdue final approval by Congress.

The one remaining obstacle to enactment of this much-needed legislation is an extraneous "sense of the Senate" provision added on the Senate floor. This resolution declares that the Supreme Court's Roe v. Wade decision of 1973 "was appropriate," "secures an important constitutional right," and "should not be overturned." I urge the Senate and its conferees to help remove this provision from S. 3 before the bill's final approval by Congress.

The fact that this provision is opposed by many members of Congress and the President, and has already delayed final passage of this widely supported legislation, is reason enough to remove it. More importantly, central claims in the resolution are question-begging and false, even in the eyes of judges and legal scholars who favor the public policy created by Roe.

The claim that Roe v. Wade "was appropriate" when handed down in 1973 lacks clear majority support even on the Supreme Court itself. When the Court reaffirmed Roe's central holding in 1992, its plurality opinion pointedly refused to make such a claim, insisting instead that "a decision to overrule should rest on some special reason over and above the belief that a prior case was wrongly decided." Planned Parenthood v. Casey, 505 U.S. 833, 864 (1992) (emphasis added). The opinion continued: "We do not need to say whether each of us, had we been Members of the Court when the valuation of the State interest came before it as an original matter, would have concluded, as the Roe Court did, that its weight is insufficient to justify a ban on abortions prior to viability even when it is subject to certain exceptions...[W]e are satisfied that the immediate question is not the soundness of Roe's resolution of the issue, but the precedential force that must be accorded to its holding." Id. at 871 (emphasis added). No one has presented any evidence why Congress must go beyond the Court itself and insist on the soundness of the original Roe decision.

The claim that Roe secures "an important constitutional right" is exactly what is strongly denied even by many legal experts who support legalized abortion. Professor John Hart Ely famously said in 1973 that Roe was "a very bad decision" because " it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be." J. Ely, "The Wages of Crying Wolf: A Comment on Roe v. Wade," 82 Yale Law J. 920-49 (1973) at 947. Former Watergate special prosecutor Archibald Cox agreed, saying that the Court had failed to articulate "a principle of sufficient abstractness to lift the ruling above the level of a political judgment." A. Cox, The Role of the Supreme Court in American Government (1976), 113. And Judge Richard Posner has said that Roe raises the question "whether the Constitution is no more than a grant of discretion to the Supreme Court to mold public policy in accordance with the Justices' own personal and shifting preferences." 1979 Sup. Ct. Rev. 173, 199.

The assertion that Roe "should not be overturned" is especially inappropriate in the context of the partial-birth abortion debate. Five members of the current Supreme Court have invoked Roe to invalidate a state ban on the horrific partial-birth procedure. We can hope that the findings and textual changes in the newly revised federal ban will convince at least one of these members to uphold that ban. But if those members ultimately find that they must make some change in Roe to allow an effective ban on this barbaric procedure, does Congress really want to insist that the Court must allow the barbarism instead of correcting Roe?

Finally, some Senators' insistence on this amendment is but the latest indication of a hardening of their hearts and minds on the most controversial and unwarranted Supreme Court decision in recent memory.

Such growing stridency in support of Roe has been in inverse proportion to developments in the real world outside Congress. In that world, women have increasingly come forward to recount how they and their children have suffered because of Roe, and the women who were the plaintiffs in Roe and the companion case of Doe v. Bolton now urge reversal of these decisions. In that world, the vast majority of Americans and 30 state legislatures have worked to eliminate the grisly killing of mostly-born children, only to be thwarted by courts invoking Roe. And in that world, Americans are increasingly declaring themselves "pro-life" as they become aware of the bloody reality concealed by the euphemism of "choice."

In a representative democracy, our elected representatives in Congress cannot ignore these developments indefinitely. Here and now, they should not continue to delay a long-awaited ban on the brutal killing of children emerging from the womb, by insisting on an endorsement of the very court decision that has led some in our society to practice and defend such killing. I urge you to work toward final approval of the partial-birth abortion ban without this extraneous and harmful Senate amendment.


Cardinal Anthony Bevilacqua

Chairman, Committee for Pro-Life Activities

U.S. Conference of Catholic Bishops