Cross-posted from the Public Discourse
Imagine a society, all of whose laws were just, and in which no law essential to the protection of the natural rights of its citizens was absent or deficient. In this society the law is also fairly and efficiently administered.
Then imagine the very opposite sort of society, one whose laws systematically favor some over others, allow unjust discrimination, even to the point of unjust killing, rape, or enslavement of some disenfranchised class of persons, and in which even good laws are unfairly or only occasionally enforced.
And imagine both societies not just at one time, but as they exist over several generations, as children are born and raised under such legal regimes, coming to accept and internalize the demands made or not made, the values recognized or not recognized, by the legal fabric of their society.
Such thought experiments make clear that the law does not simply create a stable pattern of behavior—just or unjust—over time, although it does do that. Rather, the law also creates a culture, and it does this precisely insofar as it instructs citizens about the moral code that will govern them and therefore constitute its cultural outlook and framework. The law, that is to say, teaches.
A legal regime that permits the killing of innocent human life, then, does morethan simply permit an injustice against some class of persons: As we have seen in the case of Kermit Gosnell, now awaiting a verdict in Philadelphia on multiple charges of murder and illegal abortion, the law teaches the legitimacy of this injustice, and thus erodes its citizens’ understanding of the nature of justice.
In the Gosnell case, of course, the primary “lesson learned” concerns the denial of the moral claims that all human beings are equal, and are not to be treated as things. Thus, the wrongness of the law is not simply a matter of its practical consequences; a permissive abortion law that—somehow—resulted in fewer abortions would still express precisely the wrong lesson to a nation’s citizens. And a citizenry whose culture is founded on a radical misunderstanding of justice is, to that extent, a weakened, and even, for reasons that I will explore shortly, an unfree people.
Modest First Steps
In the face of this double travesty—the wrong done to the unborn, and the misshapen moral norms inculcated by the law to its subjects—what can be done? Hadley Arkes has, over many years, advocated a strategy of “modest first steps” that addresses both of these difficulties.
In Natural Rights and the Right to Choose, Arkes details the progress of two different, and limited, challenges to abortion law: the effort to pass a ban on partial-birth abortion and the Born-Alive Infants’ Protection Act (BAIPA). In partial-birth abortions, the body of the child is delivered and the head left in the birth canal. The skull is then punctured and the cranial matter suctioned out before the head is removed. The ban on partial-birth abortion was to put an end to this procedure. The primary purpose of BAIPA, meanwhile, was to ensure that infants born alive after a failed abortion were to be treated as full persons before the law, and given the protections due to persons.
For Arkes, problems inherent in the partial-birth abortion strategy justify favoring the Born Alive strategy. Partial-birth abortion is, after all, an abortion, and it was only to be expected that judges with a vested interest in maintaining the abortion license would find fault with a law that proposed no principle, but only the grotesquery of a means, as a reason to restrict one procedure out of many.
By contrast, BAIPA was grounded in a principle that could only be rejected at great peril; yet that principle did indeed have consequences for the wider abortion license. The principle was this: A living human being, exposed to the world, whether born because of a failed abortion or because of a successful birthing, is no less a person for the circumstances of his or her arrival, or the desires of his or her parents and their doctors, than any other; thus such living human beings—in this case infants—are entitled to all the legal protections which it is the fundamental purpose of the state to offer.
This principle could be rejected only at the expense of the full-bore acceptance of the moral and legal legitimacy of infanticide, a step for which few judges, legislators, or citizens, pro-choice or not, were ready. The law thus had a much more secure path to passage and judicial security than the partial-birth abortion ban.
Yet the principle at work in BAIPA was the same principle that shows legally permitted abortion to be a grave injustice at law: the principle, that is, that all human beings are created equal and are possessed of equal natural rights. So while BAIPA could not be easily rejected, its conceptual implications could not be easily avoided.
This modest first step, therefore, moved the law in a direction that would, as apractical consequence, perhaps save lives. But it also created a conceptual impetus that might conceivably move the law in a different direction altogether from its prior track. The modest first step was thus also an eminently teaching moment of the law: It showed the tension in the thought of those who both deplored infanticide and applauded abortion, a tension that the Gosnell case has now once again vividly brought to our attention.
Law in Crisis
Today, just as before, we see another opportunity to introduce a principle both for practical and conceptual effect. For we can easily see a different understanding at work in contemporary abortion jurisprudence than the principle that all human beings are created equal, and possessed of equal natural rights. Rather, the dominant understanding is one that rejects the ideas of natural rights, of human nature, and of moral knowledge.
This new understanding holds that protected status, as Arkes has put it, “must turn entirely on the positive law, for there are apparently no objective standards that yield an answer objectively true. . . .The question, ‘What is a human life?’ becomes a question for political authority, and the question will have to be answered then without the consultation of any standards of moral judgment outside of the opinions held by those who exercise power.”
But this is an inherently unstable situation, for if this is the understanding that undergirds the right to abortion, or any other right at all, then these rights, like the rights of the unborn, and, indeed, like all rights, are in reality incapable of moral vindication. The deep assumption that only judicial or legislative decision (or, for that matter, the votes of a majority, or the edicts of kings) grounds rights means, in the end, that there are no natural rights at all.
Pro-life legal scholars have thus argued that contemporary abortion jurisprudence undermines the very notion of natural rights. But in doing so, that same jurisprudence likewise undermines the ideas of law, of political society, and of constitutional government. For all these ideas are tied precisely to the fundamental task of the law, namely, the protection of those natural rights of man that precede, in their existence, political authority, and serve as that authority’s ground and end.
This point about the corruption of law might be put as follows: As Aristotle noted, the end of constitutional government is a rule of law, not men. For the rule of law, where the law is guided and shaped by and around the natural rights of men, is a law for men, though not created by men. In its limitation by objective moral norms, the law provides a standard against which the desires, wants, and power-plays of mortal men are to be judged, and against which those desires may on occasion be found wanting and called to account. Such a rule of law is thus an order of liberty for human persons, for no human being is made subject, as such, to the rule of another, but only to the rule of law and right.
But this order is subverted in contemporary jurisprudence, and in any politics that takes as its axiom the Protagorean claim that “man is the measure.” For the “man” in question is always some particular man or men, and it is the lives of others that are measured by these particular men. But that, unlike the rule of law, is in fact a form of servitude, of subordination, to the will of others, a subordination known in our own day by the unborn, as in another day it was known by African slaves and their descendants.
But it is a subordination built into the contemporary understanding of law; no human being is thus, in principle, untouched by this understanding; the citizenry of a polity whose laws are built on this understanding is thus, to that extent, no free people at all.
The stakes of the abortion debate are thus of overwhelming significance. For the problem of abortion is, in fact, not one problem. It is, on the one hand, the problem of a massive injustice done to the weakest and most vulnerable members of the human community, but it is also a challenge to the existence of our own—or that of any comparable society’s—political community, the fabric of which is undermined by an unsustainable and manufactured “right to choose.”
Kermit Gosnell’s clinic, with its stench and decay, is here both a symptom and a metaphor for a culture, legal and moral, that has lost its principled grounding in human dignity and human rights. It is only in the legal recognition of the moral rights—the natural rights—of the unborn, that this two-sided tragedy of law, politics, culture, and morality, can finally be exorcised and the promises made in our nation’s founding documents on behalf of the rights of all human beings finally be realized.
Christopher Tollefsen is Professor of Philosophy at the University of South Carolina. This essay is adapted from his contribution to A Second Look at First Things, aFestschrift in honor of Hadley Arkes, which will be released next month.