Beyond Overruling<i>Roe v. Wade</i>: David Hollenbach's Idea of Intellectual Solidarity and Two Women Scholars of the Catholic Social Thought Tradition

In his 1984 essay “The Root and Branch of Roe v. Wade,” John T. Noonan, senior judge on the United States Court of Appeals for the Ninth Circuit and professor of law at the University of California, Berkeley, criticizes how the Supreme Court's 1973 decision in Roe v. Wade created “a mask of legal concepts” preventing the unborn human child from becoming visible.1 Noonan compares the creation of this legal mask over the unborn child to the legal mask over slaves that judges and lawyers created in early eighteenth-century America because both served to obliterate a whole class of human beings from visibility.2 More specifically, the Roe court reduced the biological reality of the unborn child before viability into “a theory of life,” implying that there is no reality in the womb but mere “theories” about what is there.3 Noonan examines how the Supreme Court, in its 1983 decision in Akron v. Akron Center for Reproductive Health, knowingly continued to place this mask over the aborted baby.4 In a tone that is both harsh and tender, Noonan ends his essay by contrasting the denial of life by the court with Nobel Prize–winning author Andre Gide's description of the humane burial of an unborn child.5 In an ending that carries strong feelings of despair and finality as much as a strong urgency for change, Noonan accuses the Akron court and, by implication, the Roe court of failing to perceive the sanctity and “extraordinary beauty” of the aborted child and of substituting a “fiat” for “the truth”:6 The thing which for me already had no name in any language, now cleaned, adorned, beribboned, laid in a little cradle, awaiting the ritual entombment. Fortunately no one had been aware of the sacrilege I had been about to commit; I had already committed it in thought when I had said get rid of “that.” Yes, very happily that ill-considered order had been heard by no one. And, I remained a long time musing before “it.” Before that little face with the crushed forehead on which they had carefully hidden they would. Before this innocent flesh which I, if I had been alone, yielding to my first impulse, would have consigned to the manure heap along with the afterbirth and which religious attentions had just saved from the void. I told no one then of what I felt. Of What I tell here. Was I to think that for a few moments a soul had inhabited this body? It has its tomb in Couvreville in that cemetery to which I wish not to return. Half a century has passed. I cannot truthfully say that I recall in detail that little face. No. What I remember exactly is my surprise, my sudden emotion, when confronted by its extraordinary beauty.7

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