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New Orders, Old Fallacies Print E-mail
By Hadley Arkes   
Tuesday, 09 April 2013

I was returning at the end of the week from a talk to a pro-life group in St. Paul, another in a series of lectures marking the fortieth anniversary of Roe v. Wade. But with each meeting of that kind, the day seems to be marked by the report of fresh, bad news.  

By the time I landed in Milwaukee on Friday the reports were coming out of a federal judge in New York ordering the Food and Drug Administration (FDA) to make certain pills available to young women under the age of 17 on an “over the counter” basis. The Wall Street Journal followed other papers in reporting that the pills were “contraceptives.” But the court reported that the drugs served also as “emergency contraception,” a euphemism that revealed its own feeble deception.

The drug at issue is levonorgestral, a synthetic hormone supposed to interfere with “prefertilization events … [to] prevent ovulation from occurring.” It was claimed that the drug has “not been shown to cause a postfertilization event.” Translation: it does not keep a fertilized ovum or zygote from implanting. In other words, an abortifacient, not merely a contraceptive.

The late Bernard Nathanson used to argue that the zygote doesn’t have a claim to be protected until it implants in the uterine wall and lets us know that “it is there.” But for others of us, that matter came under the rubric of: “A funny thing happened to me on the way to the uterine wall.” The zygote was already present, with a genetic definition marking a distinct human being. Where exactly it received its nutrition after that was another matter.

Federal judge Edward Korman was candid in acknowledging that the possible action of the drug as an abortifacient, “cannot be ruled out.” But whether it was an abortifacient or a contraceptive, what exactly made the judge think it not only sensible, but constitutionally imperative, that the drugs be made available to youngsters down to age 11 or 12, without the need for any parental involvement or adult supervision?  

The news on Friday might have been jolting, but Judge Korman has been on a tear on this matter since 2009. And while the order is novel, the fallacy firing the passion of Judge Korman is not.

In 2009, he had confronted an FDA constrained by the Bush Administration from making contraception and abortifacients available on an over-the-counter basis to adolescents. In the mind of Judge Korman, it was apparently not conceivable that certain moral concerns may surround the way in which grownups as well as youngsters use such devices as automobiles, machinery, or contraceptives, and abortifacients.

That there may be moral concerns about the taking of life, or the way in which youngsters engage in acts that may beget new life – none of this seemed to register for a moment with Judge Korman. These moral concerns were simply described as mere “political” objections, as though political judgments had nothing to do with judgments of right and wrong.

To Judge Korman, the restraints emanating from the Bush and Obama Administrations reflected nothing more than “political pressure” interfering with an agency acting on “scientific evidence.” We’ve seen all of this before: an understanding of “science” unconstrained by moral principles and boundaries.

In this view, the adolescent is seen as simply an engine driven by hormones, not as a young moral agent sensitive to moral cues and codes of propriety. The task then is to keep that youngster from begetting children – though why that particular purpose emanates from “science” is never explained.

Judge Korman’s performance created the theatrical illusion of the Obama Administration acting as the grownups in the picture when it held to its policy. Mr. Obama, backing his Secretary of Health and Human Services, thought it reasonable to doubt that “a 10-year-old or an 11-year old go[ing] into a drugstore should be – alongside bubble gum or batteries” – free to buy “medication” that could have “an adverse effect.”

But what effect did he have in mind? Not the aborting of a child, for he was prepared to defend the freedom even of an adolescent to order that outcome without the consent of her parents. Secretary Kathleen Sebelius would offer, as her own explanation:

there are significant cognitive and behavioral differences between older adolescent girls and the youngest girls of reproductive age, which I believe are relevant to making this determination as to non-prescription availability of this product for all ages.

Cognitive?  What were these girls less than 17-years-old not able to understand in making these choices? There were studies showing that youngsters less than 17 were able to read the directions on the label of the drugs and follow them reliably enough. Could the “cognition” involve an understanding of moral ends and restraints; the kind of thing the law seeks clumsily to attain when it prescribes a necessary age for people who would marry or make contracts? 

But the Obama Administration gives no place to those moral considerations any more than Judge Korman. And so, dismissing all moral concerns as political noise, the judge was free to conclude that the administration was being “arbitrary, capricious and unreasonable” when it refused to allow these drugs to be bought over-the-counter by “all females of child-bearing potential” – regardless of their age.

Judge Korman, a Reagan appointee, reflects the philosophic depth that passes for settled wisdom now even among senior judges.

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. Volume II of his audio lectures from The Modern Scholar, First Principles and Natural Law is now available for download.
The Catholic Thing is a forum for intelligent Catholic commentary. Opinions expressed by writers are solely their own.

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Comments (9)Add Comment
written by Ken Tremendous, April 08, 2013
Well the case that Levongestral is an abortifacient has basically collapsed. The Connecticut bishops would never have approved its administration to rape victims if it were an abortifacient. Competent Catholic physicians like Daniel Sulmasy OSB and Nicanor Austriaco OP (whose orthodoxy and pro-life credentials are unquestioned) have published scholarly articles rejecting the case that MAP is an abortifacient. And there have been many others as well.

The pro-life movement is going to have to let go of this claim, Dr. Arkes because the medical science simply doesn't support it. Making dubious claims to try to get people to stop using birth control might seem a good tactic but it is going to hurt the cause over the long run.

I realize that letting go will be hard to do because the pro-life movement (at least the Catholic part of it) has a great deal invested in it. But I have an idea for a first step. Let it go quietly into the night and stop writing counter productive pieces like this.

You have plenty of real reasons to oppose Obamacare and teens using birth control without having to manufacture them.
written by Brad Miner, April 09, 2013
@K.Tremendous: Prof. Arkes does not assert that levonorgestral is an abortifacient. He discusses the abortifacient issue because of earlier claims by many that it is and because of Judge Korman's acknowledgment that it may be. The point of the column is contraception, which levonorgestral surely is (or why would a doctor prescribe it?), being made available to pre-teens. And as you know -- and despite opinion polls -- contraception is a gravely sinful. Some Church leaders may have gone soft on the matter (most American Catholics surely have), but the Church is clear, as in the Catechism): 2399 The regulation of births represents one of the aspects of responsible fatherhood and motherhood. Legitimate intentions on the part of the spouses do not justify recourse to morally unacceptable means (for example, direct sterilization or contraception).
written by Grump, April 09, 2013
Out-of-wedlock births are near 50% in the general population and 70 percent among blacks. I'm pro-life but also pro-traditional marriage causing an ambivalence about the use of Plan B to prevent pregnancies. Young unmarried girls are incapable of raising these newborns properly so why bring them into the world? Most will wind up fatherless, poor or on the dole anyway.
written by Ernest MIller, April 09, 2013
@ Ken T.--MAP prevents ovulation thus preventing fertilization after intercourse within the short window of the sperm's viable life, however, if ovulation has occurred the chemical effect is as an abortifacient.

@ Jacob--You are correct, the solution is to circle the wagons and protect core Catholic communities. It works for the Amish and to a degree, for Mormons and other like-minded organizations.

written by Achilles, April 09, 2013
Ernest and Jacob, I don’t think so. A ghetto misses the whole point of what we are called to by preaching Christ crucified. We are called to be in the world but not of it. Trying to separate like the Amish is seeking to solve our problems our own way not God’s will he has chosen for us. We are to be salt and light in this prepubescent Sodom and Gomorrah heading at breakneck speed towards its tweens.

Grump- murder of the unborn is evil fruit from an evil tree. The reality is that the roots are comprised of a disordered society who seeks pleasure instead of truth. The seeds are from Satan. The result is unwanted pregnancies, the answer is not murder. Until we deal with the roots we will see more unwanted pregnancies.
written by Pam H., April 09, 2013
This is puzzling me (3rd paragraph): if levonorgestral does NOT "keep a fertilized ovum or zygote from implanting" (when to KEEP a fertilized ovum or zygote from implanting is to act as an abortifacient) and it "interfere[s] with “prefertilization events … [to] prevent ovulation from occurring" (acting strictly as a contraceptive), then seems to me the drug is acting, NOT as an abortifacient, but MERELY a contraceptive.

Just wondering if I'm missing something here....

written by Hadley Arkes, April 09, 2013
I was involved this morning in a Memorial Service for Robert Bork, and I want to thank Brad Miner for moving so quickly to offer a response, urging Ken T. to read my own piece again more carefully. I was quite willing to credit the assertion that levonorgestral acted as an agent to prevent fertilization. But the judge himself ackowledged the uncertainty here--the possibility that it could do something more. The very notion of an "emergency contraceptive" gave the game away. For it was a matter then of keeping a fertilized egg from implanting. Pam H. asked whether she was missing something, and the answer is yes, but I can see where she might have been thrown off: She needed to read the paragraph following the sentence she was citing. I noted that the drug could act to prevent implantation--and I quickly pointed out that, in a strict construal, that is indeed the work of an abortifacient. It was keeping the fertilized egg from the nutrition necessary to its growth and life. The separate being was now its existence; the rest was a matter of where it received it nutrition and sustenance.

But as Brad Miner quickly pointed out, even if we put all of that aside, the piece was about contraception, and more than that, the distorted view of the judge that a young human person needs to be seen, "scientifically," as an engine driven by hormones with no moral cues making an impression on his or her sensibilities. And beyond that, there was, running deeper, a view of law that moved all moral questions to the domain of merely "political" opinions, having no ground in truth.
written by Ken Tremendous, April 09, 2013
Yes but as I have read other pieces by you Dr. Arkes, it seems that the idea that birth control is an abortifacient is the central pillar in your argument that Obamacare introduces abortions. For instance in your piece "The Supreme court Does Obamacare: A Constitutional Wreck" you referred to "those mandates on contraception and abortifacients." And the scientific support for this claim as well is (at best) very shaky. Levonogesterel works by the same mechanism as the birth control pill.

Granted you are not the only one making this claim. The K of C just sent me a mass emailing inviting me to make a public comment protesting the Obama administration's mandating "abortion inducing drugs."

And this is part of the standard repertoire of Catholics arguments against the pill.

But it doesn't change the fact that the argument is likely wrong and thus people should come up with better arguments based on sound science.
written by Hadley Arkes, April 10, 2013
For Ken T --I would earnestly ask you to read again, for it's been quite important to my argument for over 30 years that there is the most critical difference between contraception and abortion. One prevents the formation of a new human being, and the other works to destroy that new human life. I have never confounded the two. I wonder if certain readers, reading through their own lens--imputing motivations to writers on the pro-life side--have been willing in turn to impute to us the confounding of the two. That is not to say that there are no serious moral questions involved in the whole "ethic of contraception." But for the sake of avoiding distraction they can be separated from the distinct arguments that come into play as people weigh the justification for taking human life.

But now a plea for forgiveness from me to Pam H.-- I went back again today to that passage that puzzled Pam H, and I have to enter an apology, for the slip was mine and not hers. Here are the sentences that stirred the puzzlement:
"It was claimed that the drug has 'not been shown to cause a postfertilization event.' Translation: it does not keep a fertilized ovum or zygote from implanting. In other words, an abortifacient, not merely a contraceptive."

The third had been meant to draw out the meaning of that second sentence. It would be have been clearer if I'd said: In other words, if it did [keep the fertilized egg from implanting] it would have been an abortifacient, not merely a contraceptive. And then in the next paragraph I go on to say just why, in the judgment of us, the drug would be acting as an abortifacient if it blocked implantation in the uterine wall. I must have assumed that the readers would see me explaining, in that third sentence, that the action being described was that of an abortifacient. I shouldn't have leaped with that unspoken assumption--that should have been clearer. Thanks to Pam for alerting me to it--and I'll try never to let that happen again. The usual, empty promises of writers writing every day.

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