Life Watch: The Adventures of Summer—Continued

On Saturday afternoons, in the 1940s, some of us would be at the movies, watching “adventure serials,” and each installment would begin with a quick review of the scenes, lively and portentous, that brought us to the threshold of the current crisis. And so, a recap for the reader of the adventures of this summer, leading to the current state of affairs: A trend of decisions in the lower federal courts began to block virtually every law on partial birth abortion passed in the separate States. By late May, the laws in eleven states were enjoined from enforcement; by the middle of July, the Washington Post put that figure up to seventeen. The injunctions have been lifted in Wisconsin and Virginia, but the action awaits further decisions in the courts of appeal. The arguments used by the judges were often implausible, and at times even contradictory: On the one hand it was claimed that the law was too “vague,” that partial birth abortions could not be distinguished from other abortions performed late in pregnancy. Yet, on the other hand it was also claimed that this kind of abortion was distinctly safer than other abortions late in term. But that could be the case only if these abortions were quite distinctly different, and in that event the surgeons would know rather precisely the abortions that the law meant to forbid. Still, as the summer wore on, the judges began citing the same, implausible arguments made by one another, as though they were so compelling that no other conclusion seemed tenable.

And so, in the district court in Virginia, Judge Robert Payne could observe that these decisions, in the federal courts, had formed now an “overwhelming and persuasive quantum of authority.” Ominous, said a veteran pro-life lawyer, but perhaps not serious: After all, judges in the lower federal courts had blocked the Hyde Amendment, which barred the public funding of abortion, and yet the Amendment was eventually sustained by the Supreme Court. Yes, but that blocking action seemed to reflect the quirkiness and willfulness of a handful of federal judges. But with the decisions on partial birth abortions, the judges are arguing out of the very matrix, or logic, of the main decisions in Roe v. Wade, Doe v. Bolton, Planned Parenthood v. Casey. The judges see themselves in the mainstream, and that consensus could easily induce Justices Kennedy and O’Connor to take the same view of the matter. After all, the bill on partial birth abortion would open this issue to new rounds of legislation, and ongoing waves of litigation. Kennedy and O’Connor may wish to foreclose that prospect, and they could foreclose it simply by refusing to review these decisions in the lower courts. With that holding back, they would lock into place these decisions in the lower court, and close down these bills on partial birth abortion.

But could Kennedy and O’Connor be as willing to close down a bill that marks the limits of abortion by barring infanticide? What if they faced a bill asserting that the right to abortion must be, at most, the right to end a pregnancy, not the right to kill a child? Would they really be willing to deny that a child who survives the abortion has a claim to the protection of the law? Some of us are betting, at any rate, that they would not go that far. Even O’Connor and Kennedy, we think, would insist on drawing a line, and that is why some of us have argued that we reshuffle the deck, that we bring back that most modest first step of all: We would propose simply to protect the child born alive, and install this premise—that the claim of the child to the protection of the law cannot pivot on the question of whether anyone happens to “want” her. That modest move would actually run rather deep and supply a premise that is missing in the current legislation. It would establish that the child bears an “intrinsic” dignity as a human life, that the moral standing of that child is not affected by the “perceptions,” “interests,” “feelings” of anyone else.

The focus would be entirely on the child—detached now from any effects on the mother. Senator Joseph Lieberman of Connecticut has often wrung his hands in public and professed his desire to vote with us, to recognize the dignity of that nascent life in the womb. But he holds back at the end out of a concern for the health of the mother. Well, now he could vote simply to protect the child. Will he vote with us this time? Should we spare him the need to face the question? National Right to Life “warns” that even the defenders of “abortion rights” might vote for this bill. But if they did, they would help to secure one of the ends we are seeking in the bill on partial birth abortions: They would help establish that Congress may indeed lay hands on this subject, that it may legislate on the matter of abortion.

As this proposal surfaced again in May and June, it suddenly picked up adherents on Capitol Hill, as congressmen and staffers seemed to catch on, instantly, to the logic and reach of the bill. But curiously enough, the opposition did not come from the party of abortion. It came from National Right to Life, which feared that we would somehow cause a distraction from the bill on partial birth abortions. But how would it be a distraction? We would be securing the very ground of the bill on partial birth abortion, by filling in premises that the bill had left unexpressed: we would establish that the child had standing in the law as a separate entity, that her injuries “counted.” Still, the criticism came: Why would we call into question a point that is nowhere questioned—that a child born alive is protected everywhere under state law? But our friends seem persistently to have missed the point made clear twenty years ago by Judge Clement Haynsworth in South Carolina: There is a new federal right, called the “right to abortion,” and that right supersedes the right of the newborn child to the protection of the law. The judges simply switch the labels: That is not a child, but a “fetus,” marked for “termination.” In Floyd v. Anders, the child had survived the abortion for twenty days, and the question was raised of whether there was an obligation to preserve his life. The answer was no: As Haynsworth “explained,” the mother had decided on an abortion, and therefore, “the fetus in this case was not a person whose life state law could protect.”

In effect, Haynsworth was saying that the right to an abortion was the right to an “effective” abortion or a dead child. The people at National Right to Life regard this claim as bizarre, as something not taken seriously by the courts. But what they curiously fail to notice is that this premise, or this understanding on the part of Haynsworth, is not only conceivable; it is being installed right now as one of the operative premises of the federal judges. One “smoking gun” in this respect was evident in Nebraska. The defenders of the bill in that state insisted that “the Supreme Court has never recognized a constitutional right to kill a partially born human being.” But Judge Richard Kopf simply swept aside that claim as a point of no consequence. And several months later, Judge Bilby in Arizona would note, in the same vein, that the framers of the bill had meant to “erect a firm barrier against infanticide”—and then go on to hold, in effect, that they could not do that. Anyone with eyes to see should not blind himself to what is taking place in the federal courts right now.

One person apparently jarred by all of this was Representative Lindsey Graham of South Carolina. He had not known of Floyd v. Anders and Judge Haynsworth’s holding. As of this writing, Congressman Graham has expressed a strong interest in introducing our bill in the House and bringing behind it the delegation from South Carolina. For Judge Haynsworth was from South Carolina, and Graham saw this as an occasion to reclaim the good name of South Carolina. At the same time, the Congress could make a stern, apt response to the doctrines being advanced now in the federal courts. But even before Congressman Graham expressed his interest, Senator Rick Santorum of Pennsylvania had suggested that he might move this bill, even late in the session, as the rider to an appropriations bill. That move may not be practicable so late in the session, but Santorum’s willingness to take the lead was responsible for putting some “wind in the sails” of this measure.

Yet, quite apart from any utility this measure may have, there was something distinct to be said for making a response to the courts. For an orthodoxy takes hold by establishing the things that are legitimate to say in public, and the judges are now saying, openly, the kinds of things that would have been regarded, in an earlier generation, as too shocking, too immoral, to be spoken aloud. To let this all pass, to say nothing in the face of this assault, is to acquiesce, and eventually, to accept.

But as the judges float now in the currents of a new morality, they seem oblivious also to the rather astounding things that they merely take for granted. And so, in Nebraska, Judge Kopf sought to show that Dr. Leroy Carnhart was imperilled by the bill on partial birth abortions, for the procedure barred by the law was hard to distinguish from the surgeries that Dr. Carnhart typically performed. The bill forbade the killing of a child that has been “partially vaginally delivered,” but after all an abortion involves the dismembering of a child living in the womb and the removal of the parts. As Dr. Carnhart testified, “we insert one instrument inside the uterus, grab a portion of the fetus and pull it through the cervical os. The dismemberment occurs between the traction of my instrument and the counter-traction of the internal os of the cervix.” Or, as the judge went on to explain, “the surgeon deliberately intends to shear the ‘partially delivered’ intact limb from the fetal body.” In other words: what is the fuss about? The surgeons might as aptly say, “Dismembering ‘R’ Us. Carving up living beings is what we do here.” With high conceptual clarity, the judges seem to have divined that there is no defensible way of distinguishing partial birth abortions from other abortions, apart from the vividness of the procedure. And that has been part of the purpose behind the bill.

Another part has been to compel the judges to face what abortion is, at the point where it is unmistakable. We find then the judges explaining, quite earnestly, that we cannot inhibit these good surgeons, because they are busy vindicating rights by dismembering living human beings. The marvel so far is that none of the judges, making this argument, has caught himself up, and offered any sign of awareness that he is saying something even faintly mad. That may be a measure of just how far the moral anesthesia has been absorbed. It may also be a telling sign that some additional step needs to be taken—perhaps even a very small step—to break the judges out of this spell.


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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