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Gliding Serenely into Heresy Print E-mail
By Hadley Arkes   
Monday, 24 May 2010

It was in the fall of 1996, during the presidential campaign, and I was addressing a dinner of the English-Speaking Union in Pinehurst, North Carolina. The question concerned the issues that were central to the election, and when the matter was viewed with a demanding moral sense, the most central issue might not be the one that the candidates were especially inclined to talk about. I had every reason to believe that this was not a collection of pro-lifers assembled at this black-tie dinner. And so I asked the audience simply to engage their imaginations in this way:

Imagine that we were living in a country in which it was still possible for black people to be lynched in certain regions with the collusion or indifference of the local authorities. As a practical matter then, black people could be killed without the need to render a justification. What if it turned out that about 1.3 million people of a minority race could be killed each year in this country without the need to render a justification? Would that kind of situation be serious enough to be worth mentioning in a presidential election? Would it pose a matter of any importance about the state of our national life – something worth addressing in our politics?

Then I made the connection the listeners might have anticipated: Some of us look out on the landscape and see 1.3 million human lives taken each year in abortions without the need to render a justification. No need in fact to cite anything more than one’s own private interest in ending a pregnancy, even if that pregnancy posed no danger to the life or health of the pregnant woman. We think we have reason, quite firmly grounded in embryology, for thinking that these are nothing less than human lives; that they have been nothing less than human lives from their first moments.

My point is that there is a manner quite subtle in which even people who are pro-life can talk themselves out of the notion that real human lives are destroyed in these surgeries. They can glide easily then without much awareness that they are undercutting the ground of their own argument. A curious case in point arose recently. A good friend, a young professor of law, courageous in advocacy, sensible in judgment, struck off an essay in the Wall Street Journal on a successor to Justice Stevens. He urged President Obama to be alert to the fact that he was presiding over a war in Afghanistan and with terrorists all over the world. Obama has a serious stake in preserving the powers of the executive in conducting military operations. Justice Stevens has led the movement to undercut those executive powers, and extend to decisions on the battlefield the review and rule of unelected judges. My friend took for granted that anyone appointed to the Court by a Democratic president would have to be emphatically opposed to any limits on abortion. If the president could appoint a justice more inclined, though, to support the executive in protecting the lives of Americans, the Republicans should vote to confirm that nominee. And as it turns out, the new nominee, Elena Kagan, does seem to understand the rightful place of the executive powers in our constitutional system.

But once again: If the nominee saw no problem at all, say, in a law that permitted the killing of a million people of a minority race or religion, would the pro-life party simply be grateful that she wasn’t worse and show their large nature by voting to confirm her? I would suggest that the Democrats have votes enough to confirm any pro-abortion nominee of their own. For the pro-life party simply to acquiesce is to back again into the subtle, but telling premise that there is, here, no big deal – as big as it would be, after all, if real human beings were getting killed out there.

 

Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College.

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