What Lord of the Rings Can Teach the Supreme Court About Abortion

Abstract

J.R.R. Tolkien’s Lord of the Rings saga tells of a ring whose power seduces all who come to possess it. Although they know that the ring corrupts the souls of those who hold it, they struggle to surrender it. Tolkien’s books recount centuries of suffering caused by the One Ring and the missed opportunities to relinquish and destroy it.

It’s a classic plot line. A character knows what he should do—even what he must do—but fails to act when he has the opportunity. A similar story will unfold this summer at the U.S. Supreme Court. The Justices have a chance to remedy a grave injustice and overrule Roe v. Wade. Will they be seduced by the power granted to them by cases like Roe and Casey? Perhaps they’ll be tempted to stop short, finding some half-measure that seemingly allows them to avoid confronting these pernicious cases head-on. Many fear the consequences of overruling Roe. But the consequences of failing to act at this critical moment may be much worse.

Few issues divide Americans like abortion. These divisions will endure long after Dobbs. The Court cannot craft a social-and-health policy that will resolve these differences and mend our disunion. Nor can it bring peace through half-measures. But national healing can begin by restoring our constitutional traditions and returning this long-running debate to the people.

Abortion jurisprudence provides a singular example of the harms that result when courts sever our history and traditions from substantive due process analysis. Compare Cruzan and Glucksberg with Roe and Casey. All involve life-and-death “decision[s] of obvious and overwhelming finality.” Cruzan and Glucksberg uphold state laws that guard against surrogates who might not have the patient’s best interests in mind. But Roe and Casey categorically prohibit state laws that would safeguard the best interests of the unborn child before viability.

The paradox is clear: An individual lacks a constitutional right to decide when her own life should end but possesses an absolute constitutional right to decide when another’s life should end. How can “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” extend to the latter instance, but not the former?

Casey grounded the abortion right in “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” rather than constitutional text or structure. As Harvard’s Stephen Sachs has explained, “A Court that rests decisions of extraordinary social importance on nebulous notions like ‘the right to define one’s own concept of existence . . . and the mystery of human life’’’ promotes a public perception of the Court as a partisan actor unconstrained by the Constitution it purports to interpret. It transforms the Court into “a superweapon” that “is too powerful . . . to leave lying around in a democracy; sooner or later, someone is bound to pick it up.”

Dobbs provides the Supreme Court a second chance to do what it wouldn’t do in Casey. The Court must voluntarily relinquish the power it seized in Roe and return the issue of abortion to the process of democratic discussion and debate that produces governing law. Doing so would be a first step toward healing a long-festering wound to our life together as a nation and to our judicial institutions.

Note:
Funding Information: None to declare.

Declaration of Interests: None to declare.

Keywords: Dobbs, Roe, Casey, Abortion, Substantive Due Process, Federalism