Life Watch: The Purity of the Turf

Don’t let that Kansas accent fool you; Bob Dole is really a version of Bertie Wooster, that improbable character invented by P. G. Wodehouse. Of course, Dole seems quite sober and anchored, with an edge of wry wit. Wooster was a flaky, upper-class twit, who was rendered functional in the world only through the artful steering of his valet, Jeeves.

And yet, when Dole was recently invited, in an interview, to offer his own views of a constitutional amendment on abortion, he rather sounded as we would expect Bertie Wooster to sound if he had been given elocution lessons in Wichita.

Dole confirmed that he supported the provision, in the Republican platform, for a constitutional amendment, but he noted that his own version of an amendment would make allowances for rape and incest, along with other exceptions. One could imagine Bertie Wooster, emerging from the Drones Club, straining his wit over this mental puzzle and wondering aloud to Jeeves, “Now what was it, again? Was it that incest should be compulsory unless you have an abortion? Or that abortions are right unless there is incest?”

Dole’s remarks on a constitutional amendment instantly set off tremors. But the tremors were stilled when he quickly put out a letter reminding his public that his position had not changed: He had always made provisions for certain exceptions on abortion, and most notable among them had been rape and incest. In that respect, he was like most people in the country, and the pro-life movement had long made its accommodation with him in the same way that it had come to live with this dominant cast of opinion in the country. For there persists, in the public, a strong passion in favor of these exceptions, even though they cannot coherently be justified.

The opposition to abortion is predicated, after all, on the presence of an innocent being in the womb. Unless we reverse the scheme of cause and effect, the child in the womb cannot bear any guilt for the wrong of rape and incest, and so nothing in these dreadful cases can alter, in any way, the innocence of the child.

The pro-lifers have come to reason in this way: There would be a better chance, in the long run, to reach even these cases of rape and incest if the law could once again teach the wrongness of abortion. It would make a profound difference if rape and incest were regarded as uneasy exceptions, within a cast of law that views abortion as a wrongful thing, that deserves to be restrained and discouraged.

There was nothing startling, then, in the news that Bob Dole would accommodate certain exceptions for rape and incest. What was novel and jolting, however, was the notion that these prudential compromises would be elevated in principle into the Constitution itself. Since the mid-’70s, there has been a train of proposals for constitutional amendments, and each of them carefully avoided this misstep in principle. Four months after Roe v. Wade, Senator James Buckley offered an amendment that read in this way:

With respect to the right to life, the word “person” . . . applies to all human beings, including their unborn offspring at every stage of their biological development, irrespective of age, health, function, or condition of dependency.

Professor John Noonan would later offer another amendment, in this form:

The Congress within Federal jurisdiction and the several States within their jurisdictions shall have power to protect life including the unborn at every stage of biological development irrespective of age, health, or condition of dependency.

The amendments have sought to return to legislatures the authority to legislate again on the matter of abortion. But whether the legislature is in Washington or in the states, the authority to make provisions for rape or incest is simply folded into this grant of authority without the need for any explicit mandate. Legislatures may restrain abortions, with certain exceptions that may be broad or narrow, apt or improvident. But if mistakes are made, they may be corrected, and they may even disappear, without leaving any trace in the Constitution itself. In this way, through this artful reticence, the language of the Constitution could remain intact, even while abortions in the case of rape and incest are put (in Lincoln’s phrase) “in the course of ultimate extinction.”

When the question of abortion has arisen, Bob Dole has been quick to say (a) that he is pro-life, and (b) that one ought to look at his record. And with that terse report, of two parts, his account usually ends. No reasons, no explanations, no account as to why it may be reasonable to restrain abortions or why a decent people should never claim a “right” to choose such a wrong. That kind of reticence accounts, in turn, for the uneasiness that lingers over Bob Dole. In the absence of reasons, articulated in public, the pro-lifers have never been confident that Dole’s position on abortion reflects anything more than his reading of the political landscape in which he happens to find himself. And so the startling point about his recent comments on a constitutional amendment was not that he advertised again his sense of exceptions. The sobering part, rather, was that he seemed so unaware of a matter that had long been settled in the reasoning of the pro-lifers as they had strained over the problem of principle and prudence and constitutional amendments. With his inadvertencies, he seemed to confirm what had been dimly suspected: that, over the past twenty years, he had not given twenty minutes of serious reflection to the subject.

But the deeper mark of prudence was shown on the side of the pro-lifers: One by one, the leaders of pro-life groups came to Dole’s defense. Nothing, they announced, had changed in the character and dispositions of Dole; the press would not be allowed to sow confusion and separate Dole from his pro-life supporters. One pro-lifer, in North Carolina, remarked to me that the movement had to be savvy in choosing the politician who could win. Her own heart was with Alan Keyes, but sentiment had to be tempered with a sober reckoning. As another veteran remarked, in the case of Dole, we have had twenty years to discover who he is. We know where his weaknesses are, and we know where we have to be alert in order to prop him up or sustain him on the right path. Perhaps he reflects, in his style, a certain distrust for the “giving of reasons” or the “making of arguments.” But we also have reason to believe that, in his heart, and in his reflexes, he is, as he says, pro-life. And the administration he assembles in the Department of Justice, or in Health and Human Services, is likely to be staffed, at its critical points, with people who are pro-life.

Much the same thing could be said for Senator Phil Gramm of Texas. Gramm promised a gathering of pro-life leaders last summer that there would be, in his administration, “no more [David] Souters”—no more mistakes of that kind in appointments to the Court or to any other part of the government that touches on the “life issues.” Only a year ago, Gramm had trumpeted his unwillingness to treat abortion as an issue of any moment, or weight, in his campaign. Pro-lifers took him at his word and sought out other candidates. By the end of the year, Gramm was mired, in the polls, in single digits, and the effect has been to concentrate his mind. He has come to discover, once again, that Republican voters regard this issue as eminently worth discussing.

Gramm recalls, for me, that Sidney Greenstreet character in The Maltese Falcon, who says to Humphrey Bogart, “By gad, sir, I do like to talk to a man who likes to talk.” In order to be “judicious,” he explains, one needs a certain practice in talking. Bill Clinton, it must he said, is not afraid to talk. And when it comes to the prospect of meeting Clinton in a debate, Gramm has that same confidence to engage the argument, to lay out the reasons. The question of abortion is bound to come up, and when it does, it would be a decided gain if the candidate on the pro-life side did not show a reluctance to speak about the matter. More than that, it would be a boon if he were willing actually to put together two or three consecutive sentences in defending his position and making the case. That possibility does not seem to lurk in the repertoire of Bob Dole, which is why some pro-lifers do their reckonings and lean to Gramm.

And yet, mirabile dictu: Even the Republican candidate thought the least interested in abortion in January, has shown signs of a serious reflection. Steve Forbes has built his campaign around the flat tax, but he has been staking out a position on abortion that would stamp him as a pro-life candidate. Forbes has argued, quite plausibly, that a constitutional amendment would not yet be practicable; that there is a need to move the country in that direction through a series of discrete, moderate steps. He would begin with restrictions on abortion in the third trimester or on abortions performed because of the sex of the child. But the important point is that Forbes understands these measures as a series of steps leading in a certain direction. He describes this design with precisely the right words—as a “Lincolnian” policy. Its object, he says, is to put abortion on the same plane as slavery, as a wrong, to be rejected, compressed, diminished, even if it cannot be, in this case, thoroughly banished. From an unexpected source there have suddenly come the right words—which suggests that a thoughtful mind has been joined with the right counsel.

But apart from the calculations, there is Alan Keyes. One pro-lifer in Illinois tells me that she attended a rally for Keyes in Rockford with about 1,200 people. She is convinced, as partisans often are, that there is a hidden vote for her man, moving well beyond the polls. But the matter has also run, for her, beyond artful reckonings: Exactly which candidate is more likely to beat Clinton is a matter of speculation. What she knows, however, is that Alan Keyes has made the issue of abortion the central part of his campaign, and the vote for Keyes could not be read as anything other than a measure of that willingness in the party to regard abortion as a matter that stands apart from all others. In some places, the delegates in the convention will be apportioned among the candidates, and so a vote for Keyes is a vote for a pro-life presence at the convention, even if Keyes does not emerge as the nominee. In any event, the candidacy of Alan Keyes has helped to preserve that sense among the candidates that the issue of abortion cannot be evaded, that it must be addressed. Some pro-life voters are moved then to vote with a sense of obligation rooted in a principle honored: They would vote for the man who has been most faithful in representing their position and conveying their point. The calculations and the strategies they would leave to someone else.

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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