Abortion: when argument fails

Public Interest, Spring, 2003 by Yuval Levin

IN the 1992 U.S. Supreme Court case of Planned Parenthood v. Casey, the majority interrupted its lengthy discussion of abortion jurisprudence with a bold pronouncement: "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." This audacious postmodernist creed seems out of place in a dry judicial opinion. But in his new book Natural Rights and the Right to Choose, Hadley Arkes argues that it in fact offers the key to understanding what's at stake in the abortion debate. For good and for bad, it is also central to Arkes's entire approach to the abortion question.

A professor at Amherst and a familiar voice in the abortion debate for many years, Arkes has written a thoughtful, witty, and carefully reasoned book that combines lessons from constitutional law, American history, and moral philosophy. The author also shares his extensive experience from the front lines of the abortion wars. The result is a bleak picture of a political system in the throes of a profound and dangerous disorder--of which the abortion debate is only the most prominent symptom.

At the heart of the crisis, as Arkes describes it, is the doctrine of legal positivism, ascendant in American law schools since the late nineteenth century. Positivists argue that the written law answers only to the preferences of legislators and judges, and does not recognize--as had the American Founders--a natural law above it to give it form and moral substance. Individual rights are grounded only in positive law: Nothing stands above the word of the lawmaker or the judge, who can mint new rights and trample old ones at will.

Positivism also rejects any fixed definition of the human, leaving lawmakers free to define our humanity as they wish. Thus not only the status of rights but also the very question of who is a person deserving of rights becomes a political controversy, open to the whims of the moment. The old Aristotelian notion that politics is a product of the nature of human beings is turned on its head to yield the doctrine that the definition of the human being is itself a product of politics.

This doctrine, as Arkes points out, was used in the 1960s and 1970s to create a new definition of privacy, which culminated in the judge-made abortion right. The consequences of these legal developments, Arkes contends, reach far beyond abortion clinics. In the process of putting in place the premises necessary to support a right to abortion, the judges also dislodged the fundamental principles of the American regime. They have denied the origin of law in natural right, and have created a positive law with no moral content and no connection to an understanding of the natural grounds of our humanity. In an effort to expand our rights, they have emptied the notion of rights of its true meaning.

By largely acquiescing to the positivist legal project, Americans have, in Arkes's view, lost sight of the country's founding tenets. While we still talk of human rights, we now have no clear idea of what is meant by "human" and "rights." This, he suggests, is the real core of the crisis.

As a solution, Arkes favors the promotion of a series of "modest steps" that would limit the abortion right at its periphery (including protections of babies born alive after attempted abortions or prohibitions of partial-birth abortions). It is his hope that these first steps will bring the question of abortion back to the legislatures, forcing a public debate and creating a "teaching moment" in the original principles of the American regime.

NATURAL Rights and the Right to Choose is a valuable and insightful book. Arkes lays out a large historical case, and effectively combines it with keen practical insights and political sense. But as the argument progresses, a weakness becomes apparent. Simply put, the book argues for a strategy that has proven to be a failure in the past. Modest legislative steps to limit the practice of abortion have been the strategy of abortion opponents for a decade or more, and partial-birth abortion and the "Born-Alive" act have been part of Washington's lexicon for some time now. And yet the moral advances Arkes hopes for have failed to materialize.

Arkes's approach may be said to have failed on three accounts. First, actual legislative progress against abortion has been mostly (though not entirely) lacking. A partial-birth abortion ban, though it is supported by the vast majority of Americans and most members of Congress, has failed to become law. Congress did pass the "Born-Alive Infants Protection Act" in the summer of 2002, but the act did not contain the sort of principled language that Arkes argues is essential for it to function in an educative fashion.

Second, these modest steps--even when they have failed in Congress--have brought with them a counter-reaction in the courts. The attempt to outlaw partial-birth abortion in the 1990s led to a series of state and federal court decisions that expanded the scope of the right to abortion and laid down yet more precedents and principles antagonistic to Arkes's desired aim. The risk of backfire--of one step forward, two steps back--is real and serious.