Lifewatch: With Friends Like These

After the Battle of Gettysburg, President Lincoln urged General Meade to press the attack on Lee’s Army before the Southern troops could make it back across the Potomac river into Virginia. But Meade held back, and the moment was lost.

Meade telegraphed the President that at least the Union side could take satisfaction in “driving the invader from our soil.” That dispatch merely deepened the frustration of the President. As Lincoln remarked to his secretaries, “Will our generals never get that idea out of their heads? The whole country is our soil.”

It must be one of the most exasperating things in politics when people on one’s own side begin to absorb, subtly, but deeply, the premises of their adversaries. The readers of Crisis know that, for a long while, I have been urging that strategy of the “modest first step” in the restriction of abortion. That project seemed to be advancing in the spring, and yet it has run into a curious resistance, among some pro-lifers.

Some of the resistance has stemmed from disagreements over tactics. Some of it has arisen from people who earnestly do not understand the reasoning behind the scheme. But some of the resistance has revealed also that a number of accomplished pro-lifers have strangely absorbed the premises of the other side.

My proposal had settled on that notable case from 1977, Floyd v. Anders: Through the use of prostaglandins, a child marked for abortion was born prematurely in South Carolina. He survived for 20 days, through surgery and intensive care, before he died. The question was posed as to whether there had been an obligation to preserve the life of this child. A federal court, led by Judge Clement Haynesworth, rendered the most remarkable judgment, obscured with a bit of jural mumbling: When a woman made her choice for an abortion, the fetus within the womb was “neither alive nor a person within the meaning of the Fourteenth Amendment.” Therefore, there was, in the womb, no one, no person or being, that the State had a claim to protect. Or at least not “until the child is viable.” But as John Noonan pointed out, this child had been outside the womb. He had been sustained even after his mother had left him and the hospital. What Haynesworth was really saying, then, was this: Once the woman had decided on an abortion, the child was no longer “viable” in the eyes of the law. He had no claim to be preserved even after he was outside the womb.

To put the point more directly, the right to an abortion entailed nothing less than an “effective” abortion, or a dead child. And indeed, if the interests of a pregnant woman justified the destruction of the child, why should it make any difference if that child happened to come out alive?

My own proposal was that we engage the argument for abortion precisely at this point. We could begin simply by asserting a claim to protect the child who survives the abortion. That move would have the advantage of breaking out some astounding information to the public, but it would also plant a premise quite destructive to the party of abortion: It would establish that the claim of the child to the protections of the law could not pivot on the question of whether anyone happens to want her.

And yet, not long after I wrote on this matter in the spring, I received a letter from a lawyer with substantial experience in the pro-life movement. He recalled that in Planned Parenthood v. Aschcroft (1983), Justice Powell had taken note of the testimony of a Dr. Robert Christ “that “the abortion patient has a right not only to be rid of the growth, called a fetus in her body, but also has a right to a dead fetus.” Justice Powell pronounced this argument to be “remarkable.” And from that comment, my friend, the lawyer, drew the inference that the Court “quite obviously disagreed with this view.”

He pointed out also that the Court later vacated the decision in Floyd v. Anders on the ground that the district court might have applied an erroneous definition of viability. And beyond that, my friend thought that the general laws on homicide, in most of the States, were quite clear in protecting children who were born alive. One court remarked, in a case in Texas in 1987, that the “separation from the mother is a rite of passage beyond the shadow of conflict with her fundamental rights.”

But let us look again, more closely. The “right to a dead fetus” was described by Justice Powell as “remarkable.” Yet, that observation was made in passing, in a footnote. It should hardly need pointing out that, to say that something is “remarkable” is not exactly the same as saying that it is “wrong.” Still less is it to explain the grounds on which it would be wrong. And to hold that Judge Haynesworth might have applied an erroneous notion of viability is not exactly the same as establishing that he was wrong.

It is simply an unwarranted leap to say that the Court “obviously disagreed” with the “right to a dead fetus.” The judges might not have found the notion congenial, but it was quite another matter to explain just how they could reject that claim without revisiting the premises of Roe v. Wade. For it should be clear that the judges committed to Roe could not explain the wrongness of that claim to a dead fetus on the same grounds as the pro-lifers would explain it. Whatever else the judges say, they could not easily proclaim that the child marked for an abortion had a claim nevertheless to be protected, even though she was “unwanted.” The judges could not pronounce those words without taking the first step to overthrow Roe v. Wade. Why then are so many pro-life lawyers unwilling to force these judges to speak those words—or to admit, on the other hand, that they cannot?

The recognition broke in rather late, but it finally occurred to me that some of our friends had simply not been alert to certain oddities of moral reasoning that philosophers are more apt to notice: The point seemed to have slipped past some of our friends that people can act precisely in the same way— they may seem to do exactly the same thing—while their acts spring from maxims, or principles, that are radically different.

We may find, for example, two owners of restaurants who both refrain from discriminating on the basis of race in admitting customers to their establishments. One works on the maxim that “race cannot determine moral conduct, and therefore we cannot draw any adverse inferences about people on the basis of race. We cannot know, then, on the basis of race, that someone is likely to be good or bad, as a person or as a customer.” The other owner works on a markedly different maxim, namely: “try to accord the rules of the establishment with the ethos dominant in the local community.” In certain settings, it would simply be bad for business to discriminate on the basis of race. The two owners are “acting” in exactly the same way; but they are acting on the basis of principles that are strikingly at odds.

To say then that the courts would permit us to preserve the life of the child who survives the abortion is not to say, in the least, that the courts would be affirming, as the ground of their judgments, the principles that we would affirm. But then why are we so fixed on the question of what the courts would permit? Here is where even our lawyers begin to slip into the premises of the other side: It is not our business to divine the grooves in which the courts are willing to permit us to act in protecting lives. The very purpose of our proposal was to induce congressmen and presidents to become active again in this field—to begin taking seriously again their responsibility to act as interpreters of the Constitution, no less than judges. If it is true, as some of our friends have suggested, that the decisions of the courts would permit us to save the lives of children born alive, then there could hardly be a problem if the Congress seeks to restate that doctrine in our law. But if that doctrine would unsettle the premises of Roe v. Wade, then that, too, is a supremely useful point for the Congress to make. If that move sets off tremors among the judges, if it throws off their assumptions and plays havoc with their decisions on abortion, why should they be spared that strain? And why should pro-lifers, of all people, go out of their way to rescue the judges from this wholesome predicament?

By

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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