Lynn Wardle '74
Lynn Wardle '74: Searching for Middle Ground
[Doctors] have a clear and workable definition of death. We could apply the same definition to the beginning of life.
- Lynn Wardle
Lynn Wardle recalls arguing Roe v. Wade in moot court as a 1L, before the historic
decision came down from the Supreme Court.
My assigned partner, Larry Gostin, was avidly pro-choice, and I am avidly pro-life, which made us a pretty good team. We could each learn from the other.” Wardle points out that both have “remained affiliated” with Roe in their careers; Gostin now specializes in health law and policy and biomedical ethics as a professor at Georgetown University Law Center, while Wardle focuses on family and constitutional law, as well as biomedical ethics at Brigham Young University’s J. Reuben Clark Law School.
Wardle remains avidly pro-life and avidly anti-Roe. In a lunchtime talk on January 25, sponsored by Duke Law’s Federalist Society, Wardle called Roe “the second word Supreme Court decision in history, after Dredd Scott v. Sanford.”
In addition to setting out “the most radical legal rule regarding abortion of any country in the world,” Wardle called Roe a “coup d’etat” by the judicial branch, which seized absolute control of one area of power to decide legal policy.
Visiting Duke just a few days after the completion of the Senate Judiciary Committee hearings on the nomination of Justice Samuel Alito to the Supreme Court, Wardle lamented abortion’s dominance of the judicial confirmation process. Other important issues are getting lost, he later said in an interview.
“Less ‘sexy’ issues relating to separation of powers and federalism are getting overlooked. I also think that ‘professionalism’ — the infrastructure issues — get overlooked because of these all consuming, politically divisive issues.
Wardle maintains that there is a middle ground to be found on abortion, though it would take a constitutional amendment or a decision reinterpreting or modifying Roe — a fresh possibility with Justice Alito on the Court.
“The way to get this ‘monkey’ off the Court’s back is to step back and say, ‘There is room for legitimate regulation. We aren’t going to closely monitor and supervise state regulation of abortion, but there are some boundaries.” Those boundaries could either limit Roe’s absolute choice to the first trimester, a compromise Wardle called “practically sensible” even though it is one he is not conceptually comfortable with, or by making distinctions between “hard” and “soft” cases.
Roe would protect the decision of a woman at any stage of pregnancy in the ‘hard’ cases — those of danger to the woman’s life and health, fetal deformity, or pregnancy resulting from rape or incest — but not in ‘soft’ cases such as financial inconvenience, relationship, or interruption of schooling.”
Congress should adopt a definition of life parallel to that doctors use to define death, Wardle said. “Doctors can only harvest organs at a specifically defined level of heart and brain activity. They have a clear and workable definition of death. We could apply the same definition to the beginning of life.” His proposal: Life begins when a fetus has brain waves and unassisted heart activity, at around eight to 10 weeks. “That implies a period of time in which women can make their own decisions free from state regulation.” He added that he would support the “hard case” exceptions throughout pregnancy. He acknowledged that his proposal is unlikely to gain much traction. “People on both sides seem afraid to compromise.”
His inability to have “real impact” in the abortion debate is a matter of some frustrations, Wardle admits. He has had considerable impact in others, having helped draft Utah’s child support guidelines, as well as its Defense of Marriage Act (DOMA). Utah’s DOMA influenced Congress to draft its own, which led to similar laws in 40 states.
A prominent national opponent of gay marriage, Wardle instead favors benefits that are “carefully tailored” to each relationship. “Economic fairness for two people who have become financially interdependent can be dealt with without impairing marriage,” he said, noting his public support of what became the Hawaiian reciprocal Beneficiary law. “It didn’t create a status and a union comparable to marriage, it didn’t compete with marriage, and it wasn’t a gay relationship promotion, because it was open to people who were not gay and lesbian — brothers and sisters, roommates, people who couldn’t marry.”
Wardle counts among his professional influences Judge John Sirica of the District of Columbia District Court. He began his clerkship with the judge the day following his graduation from law school, overlapping with another Duke alum, D. Todd Christofferson ’72. Wardle admired the way the judge handled the Watergate cover-up trials, which consumed his clerkship.
“The defense tried time and again to manipulate him, but he had practiced law for a long time. He knew what was going on. It was fun to work for a judge who could see what was happening, and I couldn’t,” said Wardle. “He tried very hard to be fair. He knew he would be remembered for this case alone, and he wanted to make sure to get it right. He was a man of great integrity. He also was very thoughtful of his clerks.”
Wardle and his wife, Marion, an art historian and curator at the Museum of Art in Provo, have two sons, both of whom are lawyers.