Life Watch: Backing into Old Truths

It cannot be an accident; there must be a reason that we are drawn back, repeatedly, to that scheme unfolded by G.K. Chesterton: He imagined a story about a group of intrepid explorers, setting off from England in search of a new land. After a long while at sea, they spot land, and as they come ashore, they discover that they have arrived at … Brighton. Chesterton remarked that he had set out to be a revolutionary but that he had come to discover the romance of orthodoxy.

In our own, more prosaic applications, we find ourselves striking off for something new, only to discover that it is not so new after all. We find ourselves backing into something that has been there all along, something we had never quite understood. This sense of things broke through again in a striking way in Chicago, at the end of August, at a meeting arranged by Clark Forsythe and Americans United for Life. The conference brought together pro-life legislators and lobbyists from both political parties and the range of subjects was sweeping: abortion and breast cancer, the hazards of RU-486 (more, far more than I had ever imagined), assisted suicide, cloning, fertility treatments, and the “reduction” of fetuses when the pregnancy produces more than twins. But the force of Chesterton’s story came into play for me with a talk offered by Nikolas Nikas, the new general counsel at AUL, as he reported on the litigation in the states over partial birth abortion.

Nick Nikas had sprung from New Jersey and made his way to Arizona, where he had accumulated a considerable experience in litigation. When the law on partial birth abortion was passed in Arizona and later contested in the courts, Nikas called the office of the Attorney General and offered his services in defending the statute. What he learned in the oral argument in Arizona, he would carry over in addressing the same argument in Nebraska, defending the comparable statute passed in that state. I learned from his account that it was Nikas we had to thank for drawing out the judges to say the things that would sharpen the issue and open them to our further response: Nikas framed the issue, rightly, as a matter of resisting abortion where it was even more plainly and undeniably infanticide. In drawing the issue in those terms, he moved the judges to say, at last, that we had to recede in our prejudice against infanticide for the sake of securing the right to abortion.

Nikas had shown the best instincts of a lawyer, in moving to the point where the statute was most defensible. But he was apparently unaware that in his casting of the argument, he was moving outside the rationale of the bill offered by National Right to Life, and that he was describing the path of a rather different argument, leading back to something older and even more familiar. The followers of this column may soon recognize what he described as the ingredients are unfolded. Or they may take it as a puzzle: What would we have described, or reconstructed, once we move through the set of three arguments that Nick Nikas came to encounter in his legal odyssey from Arizona to Nebraska? Consider the ingredients.

First, Nick found that the case had to be pitched to the abortions at the point of birth. The proponents of the bill on partial birth abortion thought that the bill offered this edge of cleverness: that it would bring the restrictions on abortion into the second trimester of the pregnancy. But that became, in fact, a lever that the judges could use against the bill: You see, they said, this bill could not be contained; it ventured into the second trimester and had the effect of barring doctors from doing abortions that had to be legitimate.

Second, Nick found himself pressed to make this argument (quite familiar to the readers of this column): that Roe v. Wade involves, at most, the right to “terminate” a pregnancy, not the right to kill a child; and the pregnancy must come to an end at the time that the “birthing process” begins. At that point, it must be legitimate to protect the child. In other words, the right to an abortion cannot entail the right to a dead child. Judge Richard Bilby responded that this was very clever, but perhaps too clever: There was still an abortion going on, and this looked to be just another way to restrict the right to do abortions.

Third, Nick discovered that there was a problem in handling the expert testimony even with the experts on our side: The question would be posed as to whether it was conceivable, possible, that there were circumstances under which the procedure of partial birth abortion could in fact be the safest procedure for a patient. For after all, the baby would be removed here without leaving fetal parts behind, in the body of the mother, where they could become the source of infection. Our experts, honest people that they are, would of course acknowledge that to be the case. But that then set up the conclusion: for those patients for whom this could be the safest procedure, the denial of the surgery constituted an “undue burden.”

Let me add it up: The argument, even for the bill on partial birth abortions, needs to be cast at the time of birth; it needs to be cast as an argument against infanticide; it has to convey the point that the right to an abortion is not the right to a dead child. That argument, however, is defeated finally because we are still in the midst of an abortion, where the issue can be raised about the safety of the mother or her dangers of infection. Does the conclusion not become clear? The best way of making the point is to concentrate entirely on the child, at the point where there is no longer an entanglement with the interests of the mother. And what is the closest point near abortion not entangled with those interests? The point, after an abortion, where a child may survive.

We are back, in other words, to that most “modest first step” of all, the one that we have been pressing since the beginning of this column; the measure that Senator Santorum (of Pennsylvania) and Congressman Graham (of South Carolina) are finally bringing forward. But Santorum and Graham have yet to decide just how, or even whether, they can spring this new initiative. And yet this late piece of intelligence, this report coming from Nick Nikas, clears the mind and imparts a sense of urgency. It becomes ever clearer that Justices Kennedy and O’Connor would be able to sustain those decisions in the lower courts striking down the bills on partial birth abortion—which is to say, they would suffer no problem in sustaining the reasoning that would strike down a federal bill as well. But even Kennedy and O’Connor could not be that far gone that they would be willing to endorse outright infanticide, and it strains credulity that even they would vote against the kind of initiative that Santorum and Graham have come to the threshold of offering. That is to say, Nikas’s report has made it clearer than ever that this simplest step of all, the most modest step of all, offers the surest way of securing the bill on partial birth abortion. And yet, more than that: It offers the best way of securing anything else that the pro-life movement would seek in legislation as it seeks to extend the protections of the law to unborn children.

Still, the further illumination here came on the things that lawyers, for some reason, have trouble in grasping. They see that the laws, in most places, protect the child born alive, and they go on to infer, wrongly, that the judges can supply the reasons that support the law; the reasons that reject infanticide. But as Chesterton remarked on another occasion, the medieval schoolman could give you a reason to explain the wrong of cannibalism; but the modern man can cite only his beliefs or superstitions, for he no longer has any confidence that there are any “truths” or reasons behind his judgments. The law may protect the child born alive, but the judges are no longer in a position to explain exactly why. Is it because the child has an intrinsic dignity as a human being, a dignity that does not depend on the perceptions or interests of anyone else? Or is it because “most people think that a child born alive is human,” and besides, a mother usually wants her baby? In the aftermath of Roe v. Wade, in the culture reshaped by the “right to abortion,” it is not at all clear that judges can explain any longer why infanticide is wrong. Judie Brown, of the American Life League, wrote me recently after she had noticed this sobering event: Princeton University has appointed, to a chair in philosophy and ethics, a man who had distinguished himself by offering a defense of infanticide. She had taken this, rightly, as a sign that people in the academy, in the circles that affect the media and the professions, were making their peace with infanticide as part of their defense of abortion. We delude ourselves if we think that the political class is still clear on the moral reasons that compel the rejection of infanticide. That is why the move to draw the line, to insist that the child has an intrinsic dignity, is not the statement of the obvious. And we remind ourselves that there is nothing in the least modest any longer in a step that begins the resistance to abortion by forcing people to concede the wrong of infanticide.

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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