Dan McLaughlin’s transcript of his conversation with Justice Samuel Alito, published at National Review under the title Justice Alito Speaks Out on Media Harassment and Why the Rules Still Matter, will be read in the right quarters as a quiet restatement of the rules. There are men who believe the law is whatever the latest panic requires it to be. The Justice is not one of them. He calls himself a practical originalist, and the adjective deserves to be kept: he reads the Constitution the way a trustee reads a will or a court reads a contract, weighing words as they were understood when they were written, not as the age would prefer them to mean. When the interviewer asked whether the rules can survive in a country where only one side keeps them, the Justice answered that the lawlessness of others is not a justification for our own. That is the whole of his method, and it is exactly why the secular establishment has to hate him.
The same transcript contains every charge his critics prefer against him: that a devout Catholic cannot sit in judgment, that natural law is a Trojan horse for the mitre, that a Justice who reads the text as written is merely the agent of his church. The Philadelphia Inquirer once drew the five Catholic Justices in cardinals’ hats. The New York Times treats the Chief Justice’s vacation home as fair material for publication, so that citizens who dislike his votes may know where he sleeps. The Justice answers with the patience of a man who has read this particular slander against Catholics for two hundred years and knows it will not die. He is too courteous to characterize the tactics. I am not.
The rules matter, he insists, precisely because the other side is lawless. That is the whole of ordered liberty: the judge swears an oath, and the oath is a religious act, because the judge stands under God and under the text, not under the applause of the crowd. It was the same discipline that returned the question of abortion to the people’s representatives. The Constitution says nothing of a right to end the life of the unborn, and the Court wrote in Dobbs what every lawyer once knew: the authority over such questions belongs to the states, to their legislatures, to the people acting through their own laws. That is self-government. A hospital is a creature of the law; its physicians serve the commonwealth; its lawyers, who remind the surgeon what the statute provides, perform the same office as the clerk who reads the verdict. A neutral rule, the Justice observed in his book, will sometimes produce results that people do not like. The text is the text. The law is the law. That is the point of the interview, and it is a point that costs more than its makers are usually asked to pay.
While the Justice spoke to Mr. McLaughlin of the rules, the rules had already furnished their answer to a mother in Georgia.
Her name was Amber Nicole Thurman. She was twenty-eight years old. In August 2022 she took the medication that ends a pregnancy, and the pills did their work imperfectly: the pregnancy did not entirely expel, her cervix closed, and her body began to hold the dead tissue within it. She drove herself to Piedmont Henry Hospital in Stockbridge. The surgeon who examined her recommended the dilation and curettage that empties the uterus of retained products of conception — a procedure performed a hundred thousand times a year, completed in minutes. The hospital’s policy, written to conform to the LIFE Act the General Assembly had enacted once the Court returned the question to the states, directed otherwise: no instrument was to touch the womb while the fetal heart still beat. The ultrasound recorded the heartbeat. The maternal-fetal medicine director refused the surgeon’s request. The surgeon wrote in the chart that she would have to wait until the heart stopped.
She waited. Her pain climbed and her abdomen tightened; at six in the morning she was given the medication to force labor, and her body contracted through the day. At eleven in the morning she told a nurse that the pain was ten out of ten. The nurses could chart her pain; the statute had charted her course. The infection was already rising in her blood. At ten minutes past four in the afternoon the fetal cardiac activity ceased, and not until ten o’clock that night did the surgeons at last enter her uterus and remove the tissue. Twenty hours had passed between the surgeon’s recommendation and the procedure that would have taken minutes. By then the sepsis was in full course. Her blood pressure fell; her breathing failed; the physicians intubated her and gave her antibiotics and pressors, but the sequence the State’s law had ordered was already complete. The statute had made her wait; the waiting had let the infection advance; the infection closed her heart. On August 25, 2022, Amber Nicole Thurman died at Piedmont Henry Hospital. The death certificate records the cause as complications of medication abortion, with sepsis. The state maternal mortality review committee, meeting in closed session, later determined that the procedure denied her would have saved her life. She was twenty-eight years old. She left a six-year-old son.
Ordered liberty is the Justice’s phrase, and it is a phrase of the wall: it divides what is deeply rooted in the life of the nation from what is not. The life of the child is rooted there — in the common law, in the statutes of the colonies, in the history the Court is sworn to respect. The liberty my age invented to end that life has no root; it was a seedling set in a pot, and the Court returned it to the ground it came from. That is the sorting. The child lay within the wall, and the wall held for every minute the heart beat. The woman lay without it.
Let no one mistake the wall for hardness of heart. She was not set outside because of her sex; she set herself there by act. She had crossed the boundary of the covenant in the most direct way the body permits, seeking the death of the life her own womb carried. When her body failed to complete what she had begun, the law of Georgia took account of the child’s beating heart and said: while this heart beats, the hand of the commonwealth shall not be raised against it. The surgeons waited. The heart beat until ten minutes past four; not until ten o’clock was the womb entered. The order had kept faith with the heart for every minute it beat, and for the mother it applied the law as written, without respect of persons, without fear of her pain, without the sentiment that would make the judge the servant of the judged.
Amber Thurman’s death is not a consequence the rules failed to prevent. It is the verdict the rules entered. The child whose heart beat until four in the afternoon is registered in the great ledger, a life under the law of the commonwealth. The mother is entered under the head of the act she chose. The committees in other states keep their own ledgers; each entry records the same arithmetic, each file is closed with the same seal. The ledger balances. That is what a wall is for. The rules still matter.