Lifewatch: Doerflinger at the Dikes

Richard Doerflinger converted to Catholicism when he was a student at the University of Chicago, and from there he moved almost at once, with his high seriousness and unsinkable wit, to become a Catholic civil servant: For many years he has been a mainstay in the Office of Pro-Life Activities of the National Conference of Catholic Bishops. And for many people in the movement he has been a sustaining, comforting presence. Sustaining, because he marks a willingness, on the part of some of the best minds in the country, to commit themselves to the pro-life cause as nothing less than a vocation. And comforting because he has preserved his judgment and a steady humor, even in dark times. Two months ago I found him trying to marshal resistance against a panel of the National Institutes of Health, determined to authorize experiments with live fetuses. I planted with Doerflinger at the time the question I have been posing in these columns for leaders in the pro-life movement, the question of what “modest first steps” we may expect candidates to endorse—and defend.

Doerflinger has been a devoted reader of Crisis, and he readily endorsed the kinds of measures we have been pondering in these pages: provisions for parental consent, informed consent, or the scheme to rescue the child who survives the abortion. But it has become evident over the last few months that these kinds of measures have become luxuries of reflection, luxuries that have not been available to people like Doerflinger, who are involved every day on Capitol Hill in fending off new initiatives by the party of abortion. Doerflinger and his allies find their hours taken up in coping with a unified party, in Congress and the White House, able to project the interest in abortion through all parts of public policy: new executive orders requiring States to fund abortions; more executive orders to undo the policy of the Reagan-Bush years and make the promotion of abortion a part of foreign aid; and fresh decisions in the courts, breaking out all over the country, to impart a new momentum to euthanasia.

Just a few days before I talked with Doerflinger, there was a break in the jam that seemed to be holding back indefinitely the passage of the so-called Freedom of Access bill. That bill seeks to “protect access” to abortion clinics by removing the inhibitions cast up, for people entering the clinic, by a cluster of pro-life demonstrators, engaged in peaceful protest. Over the years the courts have relentlessly removed the restraints of civility from our public speech. The restrictions on verbal assaults and intimidating gestures have been essentially dissolved, to the point even of protecting burning crosses outside the homes of black families. For the courts now to accept restrictions on the opponents of abortion would involved the most obvious inversion of everything the courts have done in the field of public speech over the last 20 years.

But in the reckoning now of the liberals in Congress, the “right to abortion” apparently stands as a far more “fundamental” right in the scheme of the Constitution than the freedom of speech mentioned in the First Amendment. Evidently it is also regarded as far more fundamental than a number of other elementary freedoms that have not been set down in the constitutional text—such as the freedom to earn a living at a legitimate calling, to take one notable example. Throughout the country, union pickets exert more than a subtle, psychological intimidation on workers and customers who dare to cross their lines. And yet, no federal law has sought to protect workers or customers, who would seek to get access to a legitimate job or a legitimate service. Only one job, and only one service, are protected now by federal law against the intimidations of pickets: the job of working in an abortion clinic, or the interest in seeking the “service” of an abortion.

 

That singular distinction is so plain that it virtually marks off the lines of a constitutional challenge in the courts: The demonstrators outside of abortion clinics are picked out for restrictions that are placed on no other demonstrators by federal law, and the only evident ground for the discrimination must be found in the “content” of the speech. Yet the refusal to judge the content of speech has been the one reliable theme, or the one surrogate principle, among the judges, who insist that they are utterly incapable of making moral judgments about the substance of any speech.

In the case of the Freedom of Access bill, the concentration on the pro-life demonstrators has been offset by the inclusion of a parallel provision, which would protect churches against the disruptive intrusions of ACT-UP and the shock-troops for “gay rights.” That provision had been added to the bill as an amendment—and as a stroke of genius on the part of some veteran Republican staffers. The amendment produced an equivalence that could test the question of principle: If pro-life groups were to have their freedom restricted, the same law would put a powerful lever in the hands of officials who were willing to protect churches against the aggressions of gay militants.

The provision of that equivalence seemed to have the salutary effect of stalling the bill. But the recent determination to break the impasse and go ahead with the bill offered a rather precise guide to the groups that truly matter on the Left: When the interests are put in the scale, the interest in abortion will be counted as a higher, more preeminent interest, than the concerns of gay militants.

But at the same time that this situation was resolving itself on Capitol Hill, Doerflinger received the news from Seattle: A federal district judge struck down the restraints, in State law, on suicide and euthanasia. In this case, however, the aggression did not spring from the Congress or the Clinton Administration. The evil found its source rather in the novelties produced by some of the Reagan-Bush judges: Here, as in other cases springing up throughout the country, a judge was willing to find a new source of jurisprudence in that bizarre line, struck off by Justices O’Connor, Kennedy, and Souter in Planned Parenthood v. Casey (1992): “At the heart of liberty is the right to define one’s own concept of existence, or meaning, of the universe, and of the mystery of human life.” With that line, the Court seemed to install solipsism for the first time as a rule of constitutional law. The burden of proof would now rest even more severely with the law when it sought to restrain a person, even from the unjust and lethal treatment of himself.

That line has been cited by a judge in Michigan in running to the jural support of Dr. Jack Kevorkian. But that line by O’Connor, Kennedy, and Souter, had not been offered in a case on suicide. It was brought forth in the effort to secure the right to an abortion, and it has the advantage of reminding us again of the connection that readily passes from view: The case for euthanasia has found its ground in that special right of “privacy” created in Roe v. Wade, that first claim to connect the privacy or “autonomy” of a person with the right to take a human life. The judges have been quite explicit themselves in making the connection, and they remind us of this persisting problem: Until Roe v. Wade is explicitly over-ridden, it continues to furnish the ground for a separate branch of our jurisprudence, dealing with the “right to die” and the promotion of euthanasia.

And that recognition should deepen even further the melancholy of our current situation. The people who deal every day in Congress, in trying to keep the pro-life movement afloat, count it a blessing if they can keep the situation from becoming much worse. They find no possibility of doing anything, right now, to begin a process of legislating or probing, with the object of rolling back Roe v. Wade. They cannot divert themselves in the slightest from the task, say, resisting the campaign to incorporate abortion in a plan of National Health. But at the same time, it should be evident to us that we can strike at the root of these crises—in all of their outcroppings—only if we can dislodge the premise that there is, in the Constitution, an unmodulated, unqualified right to abortion.

The hard fact, then, is this: Unless someone begins the work of staging a subtle challenge to Roe v. Wade, beginning with the most modest and disarming proposals, these crises on abortion and euthanasia will continue to engulf us. What we learn now, from our best friends, is that we need a division of labor. The lobbyists for the pro-life movement are too stretched to take on this strategic project of mounting the challenge to Roe. The effort will have to be borne by those artful people in the pro-life movement who are not overwhelmed now with the burdens of office, the people who do not need to engage every day in hand-to-hand combat on Capitol Hill.

Hadley Arkes

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Hadley P. Arkes (born 1940) is an American political scientist and the Edward N. Ney Professor of Jurisprudence and American Institutions at Amherst College, where he has taught since 1966.

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