How Would Burke Decide Dobbs?
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This essay will argue that respect for tradition does not weigh in favor of keeping Roe. A deeper dive into Edmund Burke’s writing shows that Burke himself likely would not stay the course in Roe.
First, in the writings featured by the Chief Justice, Burke was addressing a much different situation. He was speaking as a statesman about statecraft, not about judicial doctrine. And stare decisis factors that developed in the common-law era where prior precedent was the best evidence of what the law is, do not necessarily transfer to our system of positive, written law. Finally, Roe is in no way a product of the history and tradition that Burke praised—it is a radical departure from the “bank and capital” of the nations, including this nation.
Second, when in separate writings Burke addressed judicial precedent, he showed support for reexamining precedent. He laid out a five-factor test he believed must be satisfied before a judicial decision was considered precedential. Roe fails at least three of those five factors. Abortion law is not consistent with the general tenor of legal principles. It is contradictory and mutually destructive. And Roe was not decided in good and constitutional times but is a result of purposivism, the prevailing legal theory of the day that allowed judges to make, rather than just interpret, the law.
Burke’s reliance on tradition and history was grounded in twin humilities, a humility that recognized the fallibility of both human and institutional reasoning. Burke would overrule Roe.
Director of the Program in Human Rights, Catholic University of America
William L. Saunders is Chair Emeritus of the Religious Liberties Practice Group of the Federalist Society. He is also a religious liberty and human rights scholar as well as director of the Center for Human rights at The Catholic University of America. He is Law Fellow with the Institute for Human Ecology, Professor and Director of the Program in Human Rights in the School of Arts & Sciences and Co-director of the Center for Religious Liberty at the Columbus School of Law. Before joining The Catholic University of America, Mr. Saunders served as Senior Vice President and Senior Counsel with Americans United for Life for ten years. From 1999 to 2009, he was Senior Fellow in Bioethics and Human Rights Counsel at the Family Research Council.
Mr. Saunders attended the University of North Carolina at Chapel Hill on a Morehead scholarship. He obtained his degree in law from the Harvard Law School.
Mr. Saunders was featured in Harvard’s first Guide to Conservative Public Interest Law in 2003 and again in the 2008 edition. He served on Harvard’s Advisory Committee for its 2008 celebration of public interest law. A member of the Supreme Court bar, he has authored numerous legal briefs in state, federal, foreign, and international courts.
Mr. Saunders’ book, Unborn Human Life and Fundamental Rights: Leading Constitutional Cases Under Scrutiny, was published in 2019. His articles and book chapters have been published by the university presses of Harvard, Villanova, Brigham Young, Fordham, Georgetown, Houston, Scranton, and the Catholic University of America, as well as by the Intercollegiate Studies Institute, Freedom House, Greenhaven Press, Rowan & Littlefield, Praeger, St. Augustine’s, and Intervarsity press. He has given lectures and participated in debates at many colleges, universities, and law schools, including Princeton, Harvard, Georgetown, and Notre Dame. He delivered the annual J. Michael Miller Lecture at the University of St. Thomas (on international law) in February 2007, the annual R. Wayne Kraft Memorial Lecture (on bioethics) at DeSales University in February 2004 and the annual James Moore Lecture (on human rights violations in Sudan) at Millikin University in 1999. He has also lectured, and/or has been published, in many foreign countries, including Italy, Germany, Poland, Austria, Spain, Greece, Slovakia, Mexico, Qatar, Malaysia, Romania, the Philippines, Hong Kong, and the United Kingdom.
In addition to speaking and writing frequently on bioethics topics, Mr. Saunders has submitted testimony to the President’s Council on Bioethics, as well as to UNESCO’s Committee on Bioethics, and has briefed Congressional staff and state legislatures. He is a regular columnist for the National Catholic Bioethics Quarterly.
Mr. Saunders has appeared often in the media, including BBC World News, CNN, Fox News, Vatican Radio, and National Public Radio. His articles on issues have appeared in a variety of journals, such as First Things, Human Events, Human Life Review, The Legal Times, Communio, The Family in America: A Journal of Public Policy, Ethics & Medics, and Touchstone.
Mr. Saunders served on the official United States delegation to the UN Special Session on Children in 2001/02. In 2011, he was a speaker at an official briefing at the UN, addressing the topic, why euthanasia is not a human right.
In 2004, he served on the NGO Working Committee in connection with the Doha Intergovernmental Conference for the Family.
Mr. Saunders is Senior Fellow with the Religious Freedom Institute, and Affiliated Scholar with the Pellegrino Center for Clinical Ethics at the Georgetown University School of Medicine. He is President of the Fellowship of Catholic Scholars and a member of the boards of the International Association of Catholic Bioethicists, the International Right to Life Federation, the Institute on Religion and Democracy, and the Society of Catholic Social Scientists.
In 1999, Mr. Saunders founded Sudan Relief and Rescue, Inc., to aid the persecuted church in Sudan. He has worked for and written on behalf of the persecuted church for many years.