Why Can’t the Constitution Protect Unborn Children? Print
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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