Roe v. Wade and Infanticide

by Richard M. Doerflinger

September 12, 2003

You may have heard about Democratic Senators' threat to filibuster some of President Bush's nominees to the federal bench. A central issue is some Senators' "litmus test" that nominees must support the Supreme Court's 1973 Roe v. Wade decision legalizing abortion.

Less well known is the use of a pro-Roe "litmus test" to delay passage of one of the most widely supported pro-life bills in recent memory: the federal ban on partial-birth abortion.

The effort to ban the grisly partial-birth procedure has prompted supportive letters and postcards from millions of Catholics and others; twice the ban was approved by Congress but was vetoed by President Clinton. Now that it has again been approved by both houses and President Bush is eager to sign it, why do we still not have a ban on killing mostly-born infants?

The answer is that when the Senate approved the ban this year, 52 members approved an amendment to the bill praising Roe v. Wade. This "sense of the Senate" resolution declares that Roe "was appropriate," "secures an important constitutional right," and "should not be overturned."

The amendment is designed as a "poison pill" making the bill unpalatable to pro-life legislators. It also creates a difference between House and Senate versions, requiring appointment of a conference committee to resolve the difference -- and for weeks, Senate Democrats refused to name conferees.

These delaying tactics have at last come to an end, allowing Congress to debate the Roe v. Wade amendment on its merits. Weighing in on that issue is an interesting September 12 letter to the Senate from Cardinal Anthony Bevilacqua, chairman of the U.S. bishops' Committee for Pro-Life Activities (see

Cardinal Bevilacqua notes that key claims in the Roe resolution are strongly denied by pro-abortion legal experts, and do not find majority support on the Supreme Court itself. When the Court reaffirmed the central holding of Roe in its Casey decision of 1992, for example, its plurality opinion pointedly refused to affirm that Roe was actually appropriate in 1973 – in fact, said the opinion, "a decision to overrule should rest on some special reason over and above the belief that a prior case was wrongly decided." Translation: It may be wrong, but it's in place now and we have the will and power to keep it there.

The claim that Roe secures an "important constitutional right" is just as questionable. Even legal experts who support legalized abortion, like Yale law professor John Hart Ely, have said that Roe "is bad constitutional law, or rather... is not constitutional law and gives almost no sense of an obligation to try to be."

To amend a partial-birth abortion ban with the statement that Roe "should not be overturned" is the most provocative statement at all, since Roe will surely be wielded again in any renewed judicial attack on the ban. As Cardinal Bevilacqua asks in his letter: If the Supreme Court finds that it must make some change in Roe to allow a real ban on the barbaric killing of partly-born children, "does Congress really want to insist that the Court must allow the barbarism instead of correcting Roe?"

The horrific nature of partial-birth abortion has led many Americans to turn away from Roe and to call themselves "pro-life." Some Senators are moving in just the opposite direction, increasingly invoking Roe to block even modest restraints on a form of infanticide. Do they know how badly they are representing their constituents?

Mr. Doerflinger is Deputy Director of the Secretariat for Pro-Life Activities, U.S. Conference of Catholic Bishops.