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The Design of Legislation: Searching for the Key Print E-mail
By Hadley Arkes   
Monday, 21 June 2010

In my last column, I argued that the Roberts Court had brought us to the point at which a slender majority was willing to weigh seriously, and sustain, a train of measures that would place serious restrictions on abortion. With each step, the public may confirm the sense that ordinary people can talk about the rightness or wrongness of abortion as the prelude to making laws. But those steps can have a deeper effect if they teach, as they go, lessons that begin to accumulate.

I was pleading then, last time, that the pro-lifers should try to impart a design to their measures. As much as possible the separate steps should plant premises that lead to the steps that follow. They should try to touch that central issue of the human standing of the child in the womb – and not be drawn off into gestures, stirring and dramatic, that lead people away from the main point. 

In that vein, I must confess that I haven’t shared the enthusiasm felt by many friends for “pro-life license plates.” Yes, they bring in money for pro-life counseling centers. But pro-lifers can put signs on their cars, and contribute to the centers, without an official endorsement from the state.  And nothing in that permission by the state helps to establish any standing in the law for the unborn child as a human person.  I don’t quite understand then why this project should command the expenses that the pro-lifers have been willing to bear in litigation.

In striking contrast, there would be a far more notable point established with the simplest first step of all: the requirement that no abortion be performed without a pregnancy test. Judges have said testy things about legislators trying to “impose a theory about the beginning of human life.” But there were cases years ago, in Chicago and other places, of abortion clinics not bothering to administer a pregnancy test before getting on with the surgery. Yet without a pregnancy test, an abortion is no more relevant than a tonsillectomy. And with that test, all of that loose talk about “theories” just vanishes. For the test marks, not a theory, but the presence of a living being, a being powering its own growth; and there cannot be the least doubt about its species. 

The pro-lifers in Colorado have brought forth, for the ballot this November, a Personhood Amendment to their constitution:  “the term ‘person’ shall apply to every human being from the beginning of the biological development of that human being.”  The proposition is certainly correct and defensible. And yet it has the form and tenor of an assertion.  Cast in that way, it promises to trigger the perversity and relativism of judges who have absorbed liberal slogans:  They begin with the premise that the beginning of human life is an inscrutably religious question; that it hinges on matters of belief, not truths.  They know that people are brazen enough to contend that they don’t know when human life begins – even with a pregnancy test – and so the amendment simply looks like an exercise of brute force:  One faction has simply imposed its “opinion” on the community with the force of law.

I would prefer another approach.  We could begin with the old-fashioned mode of a preamble, which sets forth the premises in the bill.  And the trick is to set down premises that even judges would be embarrassed to dismiss, because even they could not contest their truth. The preamble could begin then by citing passages from the textbooks on embryology – e.g.,  “The development of a human being begins with fertilization, a process by which two highly specialized cells, the spermatozoon from the male and the oocyte from the female, unite to give rise to a new organism, the zygote.” [Langman, Jan. Medical Embryology. 3rd edition] And then:

  • Nowhere in the chain of development does the offspring undergo a shift in species.  It is human, and nothing less than human, from its first moments. Taller, heavier people are not more human than shorter, lighter people. No alteration in human standing can come with these changes in growth – or decline.
  • Therefore, the ground of justification for the taking of this human life in the womb must be reconciled with the grounds that are required for the taking of any other human life in the laws of this state.

Something in that vein – the legislative language may be sharpened and perfected.  A commission could be authorized to hear cases and pass on the “justifications” that are offered.  In all strictness, the legislation would still leave intact the right to order an abortion under certain circumstances – with the justifications yet to be tested.   But at the same time, it implicitly calls into question many kinds of abortions now readily performed. Since there is no license to kill the children around us afflicted with Down syndrome or spina bifida, there would no longer be such a ready license to dispose of children in the womb with these afflictions.

This is not to say that judges, with more craft than shame, may not find a way to tie up these kind of law.  But why not make them strain their wit to do it?   And why not work, on our side, by seeking to plant in the law the truths that even the judges cannot dissolve.

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

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Comments (6)Add Comment
The New Freedom
written by Willie, June 22, 2010
Professor, an excellent article! This thing growing in the human womb is certainly not a tumor. So then what is it? We now have the legal license to remove this thing for whatever reason, be it Down's syndrome or any other genetic defect. We don't even need a reason. The mantra of action is a woman's right to choose. When does this thing assume personhood and then of course incur protection from murder? Is is two days before birth, two weeks before birth of the day after birth? It is not difficult to see the day approaching when human personhood is not the issue necessitating protection by law but rather that all purpose vindicator of evil,"the right to choose." Whether it be the unborn, the born, the defective or the elderly will the "right to choose" be one of our freedoms for a better lifestyle?
Calling things by their right names
written by Ars Artium, June 22, 2010
Thank you, Professor Arkes, for reminding us that we can at least call things by their right names. Perhaps we should place these columns in time capsules and hope for their discovery in times to come.
A good argument but in vain
written by Joe, June 22, 2010
The vein you choose, professor, is alas in vain, given the fact that no matter how you cast the premise, the conclusions of the aborters have been unshakably established in the mindset of Roe v Wade. "Reproductive rights," "planned parenthood," "the right to choose" are phrases that trump vague notions of "when life begins." With no moral compass, those who deny personhood in the womb cannot be persuaded to sail on the sea of truth.

I applaud you for your persistent and heartfelt attempts to recast the debate in new terms, but I fear you will run into the same old rhetoric in the public square as well as the courts of law and the state legislatures.

The abortion issue has been mired in hazy polemics for so long that arguments based on morality and religious grounds are secondary to politics. And politically, the nation has been and always will be divided over this issue, as it is on many others.

" nation indivisible..." is not reality in America.
An Alternative Approach
written by Martial Artist, June 22, 2010
Professor Arkes,

With all due respect from a layman (both as a Catholic and someone with very little legal education). I start from the assumption that the law, assuming we live in a society which attempts to follow the Rule of Law. It seems to me that there is an internal contradiction within our statutes, at least at the state level.

The contradiction is as follows: A woman may obtain an abortion, killing an unborn infant, for any reason, based on the inference that the unborn infant is not a person. However, if the pregnant woman is the victim of a physical assault that results in the death of the unborn infant, the perpetrator is, in some jurisdictions, liabled to be charged with the homicide of the unborn infant. Such a charge is logically inconceivable unless the unborn infant is considered, under the law as a person. It so clearly violates the law of noncontradiction that the same infant could both be a person and not be a person, that I cannot imagine any sane and rational judge not seeing the inherent contradiction in this situation, at least in those states, California comes to mind, that have statutes permitting the prosecution of homicide for the killing of an unborn infant.

Is this not an avenue that ought to be pursued in the courts to, at a minimum, create a breach in the so-called "right" of a woman to take the life of an innocent unborn infant?

Keith Töpfer
To: Ars Artium:
written by Martial Artist, June 22, 2010
It is exceedingly important that we call things by their correct name. Failure to do so is a major contributing factor in failing to cause others, at least those who are not already blind to all arguments, to simply dismiss moral arguments. The opposite of pro-life is not pro choice, because the opposite of life is not choice, rather, it is death or homicide. We should assist in always rejecting the false dichotomy between choice and life, and should instead insist on calling everything by one of its accurate names. The mildest expression of this principle in the case of abortion is probably "pro-abortion" vs. "anti-abortion." Failure to do this concedes the ground of conflict to the opponent, who is thereby permitted to euphemise their position, essentially engaging in dissimulation.

Pax et bonum,
Keith Töpfer
written by Mark, June 23, 2010
Abortion laws do not deny the personhood of the unborn. They ignore the unborn's personhood. The question of personhood simply does not matter. All that matters is the raw will to power. Might makes right is the pro-abortionist's creed.

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