The Catholic Thing
Why Can’t the Constitution Protect Unborn Children? Print E-mail
By Hadley Arkes   
Tuesday, 22 November 2011

In my last column, “The Natural Law and the Conservative Judges,” I came to the threshold of this curious problem in our jurisprudence:  Even the federal judges who have been stalwarts in sounding the pro-life argument seem to think that they can do nothing running deeper on the matter of abortion than overruling Roe v. Wade and sending the matter back to the states. 

Of course, there is nothing trivial in that move. Sending the matter back to the states is returning the issue to the political arena, that arena in which ordinary folks and their representatives are free to deliberate in public on why their laws on homicide should not protect again those small humans in the womb, who had been protected by the laws until the Supreme Court, in a single stroke, swept those laws away.   

It seems strangely overlooked that “returning the matter to the political arena” means returning it to the Congress as well as the states:  In a recent Republican debate, Professor Robert George reminded the candidates of the power of Congress under the Fourteenth Amendment to protect “persons,” especially when governments within the states hold back the protections of the law.   

We may forget that the Supreme Court had helped to recover and enlarge that understanding of what Congress could reach, under the Fourteenth Amendment, in protecting black people from private thugs and from governments unwilling to protect them from the thugs.  Some of us have raised the question then as to why the same modes of reasoning, quite familiar to the judges, could not be used now to extend the protections of the Constitution to those “persons” in the womb. 

Take the matter of black people again as the analogy here, and let’s recall those critical Civil War Amendments:  the Thirteenth did away with involuntary servitude and affirmed the natural rights of the people held in slavery; the Fourteenth extended citizenship to those same people; and the Fifteenth forbade discrimination on the basis of race in voting.  

Now what if it were claimed that, as a matter of common sense, those amendments conferred rights only on those black people who had become truly human? After all, we’ve been told these days that even offspring conceived by human beings may not be human at all stages. And one of my very favorite judges had famously declared that the nine judges on the Supreme Court were no more able than nine persons selected at random from the local telephone directly to establish when life might come under the protection of the law.

           Once also unprotected by the Constitution (Dred Scott)

Let’s say then that the matter was returned to the states. And let’s suppose that a legislature had determined that black people were more clearly human as they became lighter in color.  Let’s suppose that, in an exercise in precision, the legislators supplied a color wheel marking gradations in shading, and declared, as a “finding of fact” that “human” standing came at a shift from a fourteen to a thirteen on the color wheel.

Does anyone doubt that judges would have the resources of reasoning to deal with that problem? They would quickly point out that the legislature isn’t merely describing people in their color. In the shift from a fourteen (darker) to a thirteen (lighter) it would remove a whole class of human beings from category of “rights-bearing beings.” The Court would insist that the legislature supply the evidence or reasoning to justify such a shift, for the judges would detect here the hand of arbitrariness.

Why then would the same modes of reasoning not be equally available to judges when the legislatures of New York and California virtually withdraw the law from the protection of the unborn? Why would the judges be rendered speechless if humans in the womb are put outside the protections of the law because of their height or weight, because they are lacking limbs or hadn’t acquired yet the facility to speak and do syllogisms? 

Why then, we must ask, are the men we regard with the highest respect as jurists, so utterly convinced that something in the Constitution somehow bars them from raising these kinds of questions, the questions that pierce to the core of those rights, and those persons that the Constitution was designed to protect?

Up to the time that John Roberts and Samuel Alito joined the Court, Justices Scalia and Thomas were carrying, handsomely, the main burden of making the pro-life argument. The four of them, joined occasionally (believe it or not) by Justice Kennedy, have now created a situation in which legislatures have been encouraged to legislate again to protect unborn children. The Court may now sustain those legislative acts coming from the states, and in sustaining them, providing a course of teaching.  

It may be quite rare that someone can come forward to act as a guardian ad litem and claim standing, on behalf of the child in the womb, to contest the laws that permit the destruction of the child. Still, the crisis of abortion was one that emanated from the center, from the highest court in the land, and the corrective has to be led in part from the center. 

In that project, the judges who engaged their skills of teaching to instruct us in the rightness of abortion should engage the same skills in leading us out of this moral and constitutional wasteland.

Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College. His most recent book is Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law.

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Comments (10)Add Comment
written by bob mitchell, November 22, 2011
I think you already answered your own question - they don't want to - there is to much money involved in the political arena - the old adage applies here - don't rock the boat
written by Austin Ruse, November 22, 2011

This approach would require not just a friendly Congress to pass such an understanding, but a friendly president to stand up to the Supreme Court that my try to intervene. Is that correct? This was the line Professor George took with the candidates, correct?


written by Hadley Arkes, November 22, 2011
It looks as though my old friend, Austin, missed what I was saying here. Of course it would take a supportive president to sign what a pro-life, Republican Congress would readily pass. But my friend seemed to miss the point that I was writing about the critical things that judges could do even if there were no legislation coming from Congress or the States. Let's recall: It had taken the genius of judges, offering high-toned theories, to remove the unborn from the protections of the law even when few people supposed that could be done. If the judges were able to do that, it surely follows that they would be able to talk the unborn back under the protection of the laws. As I said in my column, it may be hard to find the occasion of the case in which people test the local laws on behalf of the unborn who are unprotected. But we shouldn't confuse that state of affairs with the assumption that the judges have no means at hand, no modes of reasoning, that allow them to teach again in another direction--to challenge the laws that leave innocent life unprotected.
written by Steve Schulin, November 22, 2011
The 14th Amendment does much more than authorize Congress to act, it places an obligation on every official in the nation to act. Maryland's Governor recently cited such an obligation (albeit misapplied) in defying the state law provision that the only marriages recognized in our state are those between one man and one woman. While I disagree with his opinion that marriage must be redefined in order to be constitutional, I do agree that the chief executive of every jurisdiction must, even when it means ignoring the legislature and courts, ensure that, for example, no person shall be deprived, under color of law, of their life without due process. I've decided I'm through supporting candidates who don't share this perspective on abortion.
written by senex, November 22, 2011
I recall (perhaps mistakenly) that Justice Scalia raised a perceptive question about who constitutes a ‘person’ entitled to protection under the Constitution in the context of the preborn.

In the first sentence of section 1 of the 14th Amendment not all persons are citizens, only those ‘born’ or naturalized in the US. In the third sentence of section 1 the word ‘person’ is used in reference to the denial of any ‘State’ to deprive any ‘person’ of life … without due process of law. I surmise that Justice Scalia was concerned that some people were trying to give the word ‘person’ 2 different meanings in the same section. That raises a question of interpretation, which is proper for the Court to decide. In the context of the 14th Amendment, the only focus was to reinstate blacks to full personhood with equal rights to all other citizens. This is a cogent argument that the 14th Amendment’s scope is so limited, whether we like it or not.
written by Martial Artist, November 22, 2011
Having read the article, I feel compelled to cite four arguments against abortion that I first saw online a scant 4 days ago (in a link on Orwell's Picnic, the blog of a Catholic woman who is a correspondent for LifeSiteNews) that seem to me to echo the line of reasoning that Professor Arkes is suggesting. The link was to an article on another blog describing Christian bioethicist Scott Klusenforf's acronym SLED. Size: The unborn are typically smaller than those already born, but since when did size have anything to do with personhood? People come in all different sizes and no reasonable person would attempt to make the case that people of one particular size are more human than anybody else.

Level of development: The unborn are the least developed of us, but this is absolutely irrelevant to personhood. The unborn are less developed than newborns, but newborns are less developed than children, and children are less developed than adults. Children do not possess fully developed reproductive systems, yet we would not attempt to make the case that they are not fully human because of it. We certainly would not make the case that we should be able to kill children because they are less developed, nor should we make such a case regarding the unborn.

L/b>nvironment: A person’s location has nothing to do with their personhood. Does one become more or less of a person by walking from the parking lot into their workplace? Or out of their house to their car? Traveling down the birth canal is as irrelevant to personhood as traveling down the street.

Degree of dependency: This cuts to heart of one of the favorite arguments of the abortion crowd – the issue of viability. In other words, is a fetus really human if it cannot survive outside the womb? The abortionist would argue “no”, but the point is irrelevant to the personhood of the unborn child. There are fully grown adults that depend on caregivers, life support equipment, and medications to survive. It would be unthinkable to advocate killing such people simply because they are dependent upon another person or a machine to survive, and it ought to be the same for the unborn.

Perhaps it might somehow help the Justices to be repeatedly reminded of these arguments, and any others similar to them.

Pax et bonum,
Keith Töpfer
written by Graham Combs, November 22, 2011
I wish I had had a professor in law school half as insightful and with a fraction of Prof. Arkes' intellectual integrity. Is it going too far to say that the average law school of the last half century is the source of much of the moral squalor in the public square?

One quibble with Mr. Mitchell. Law and money are certainly entangled -- a prime example being the the pricey indulgence of our current system of voir dire. Wasteful in time and money for a fairness and mitigation of the arbitrary that is seldom merited. As for money and abortion. Yes that are also entangled. But it is primarily about power and convenience and the abdication of responsibility. It is far easier to invest virtue in PETA (note their horrendous campaign for the holidays now on display in the WSJ and elsewhere) and the EPA. Much of leftist rhetoric is encrypted, but in this case it is easy to decode -- when they talk about Empowerment the mean Power. And Power is of no use or pleasure without the means to wield it over others. It's why they sneer at the word Liberty. And why the descendants of freedom riders no longer believe in freedom.
written by Hadley Arkes, November 22, 2011
At the risk of making a second intervention, I'd thank Mr. Kopfer for writing in once again, but I'd point out to him that these arguments have not surfaced over the last four days. Some of us have been making the point for years that the existence and standing of a human being, or the "human person," as John Paul II had it, could not be dependent on height or weight, on degrees of intelligence, on how articulate the person may be, or whether he is dependent on the care of others. I was not alone in making these arguments, but some of our friends found them brought together in a book now 25 years old, First Things (Princeton, paperback). And I think we'll find that the arguments still hold.
written by Michael Paterson-Seymour, November 24, 2011
I think it is very unwise to allow the question of the protection of unborn human life to become enmeshed in the concept of "personhood"

To assert that the zygote is a person raises difficult questions, when it divides to form monzygotic twins. Do we have two new persons at this point (which suggests the original person ceased to exist), or the original person plus one new one, derived from the original?

What is clear enough is that the zygote is a living individual whole whose life is—all going well—to be the life of one or lives of more than one human being.

Scots law neatly avoided all such questions by penalising the use of instruments or drugs "with intent to procure a miscarriage;" regardless of the result and whether or not the woman was, in fact, pregnant; the Crown's interest in the livesof its future subjects being sufficient to make it a point of dittay
written by MS, November 25, 2011
@Michael. See Alexander Pruss' blog re: 'twinning'.

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