Aristotle, Prudence, and the Freedom of Choice Act

In a speech to the Planned Parenthood Action Fund on July 17, 2007, Barack Obama declared that the first thing he would do as president – the first, dramatic, telling act – would be to sign the Freedom of Choice Act (FOCA). The purpose of that act has been to enact Roe v. Wade into a statute – but even more. Not only would that act stipulate, in a statute, a right to abortion, but it would sweep well beyond the restrictions that even the Supreme Court has allowed in this “constitutional right” invented and shaped by the judges. Obama became one of the sponsors of this act in its second iteration in 2007. An earlier version had been filed in 1992, and carried over into the first year of Bill Clinton’s presidency. But even with Clinton in the White House and Democrats in control of Congress, the votes were not there to pass this bill.

The votes may still not be there; this new version is even more radical than the earlier one. But there is a new moment now, with the most radical pro-abortion president who has ever been in office, backed by a party in Congress buoyed by the election, swollen in its majority. I’ll leave for another time the question of the constitutional ground on which the Congress may legislate on this matter. It’s the provisions in the bill that fix our attention and raise alarms. And yet one needs a touch of Aristotle to understand this bill in its setting: One must understand the bill, not only in its words, but with the sense of the people, the judges and administrators, who will be using those words as levers in the law.

On the surface, the words seem sufficiently mild, portending no vast change in the state of things. But the new bill would strike at the mild restrictions placed on abortion by governments in the states, and so far accepted by the courts. The bill declares that no government in the United States may “deny or interfere with a woman’s right to choose to bear a child” or “terminate a pregnancy.” The bill would also bar governments from discriminating in “the regulation or provision of benefits, facilities, services, or information.” If the terms are employed literally, a judge could argue that virtually any serious restriction could be construed as an interference: a requirement of informing the parents of a minor seeking an abortion; a waiting period of twenty-four hours; an insistence that a woman receive information on the condition and development of the child she is bearing. To see the child in a sonogram or hear the beating of the heart has given many women pause and caused some of them to change their minds about the abortion itself. The Supreme Court has held that the states may favor childbirth over abortion in several ways. The state may refuse to pay for abortions, or it may commend adoption over abortion in its counseling. And yet, as Michael Paulson at the University of St. Thomas School of Law has pointed out, these policies might be struck down, under FOCA as a “discrimination” in the provision of “benefits, facilities, services, and information.”

In all strictness of course, with any semblance of moral reasoning, these implications would not have to flow. If it were “justified” to bar people from walking down a street where the fire department is fighting a fire, that restriction on freedom would not be seen as an “interference” – i.e., an unjustified or wrongful interference. And in the same commonsense way, if a state were justified in making sure that women understood what they were killing in the abortion, or that a state were justified in favoring life over death, childbirth over child-killing, then nothing in that policy could be seen as an unjustified discrimination.

But the federal judges have formed now for thirty years a college determined to put across that right to abortion and find any means of preserving it. Judges constituted in that way, with those sensibilities, will apply the language of the act quite shorn of those moral qualifications that should attend it. Aristotle would instruct us in a course of prudence: to look beyond the words, to the character and sensibilities of the people exercising the levers of the law. The irony here, worth taking up at another time, is that there could be advantages for the pro-life side in removing the matter of abortion from the sole governance of the courts and bringing it into the domain of statutes.

Statutes, passed by legislators, elected and defeated by the voters, may be amended and repealed, far more easily than decisions of the courts may be amended and overturned. But we have already had a beginning in that respect with the Born-Alive Infants Protection Act and the ban on partial-birth abortion. Those acts should be understood as the Congress taking up the responsibility to legislate in this field and marking the limits of that right to abortion. The path of legislation should take its beginnings from those acts, not the Freedom of Choice Act. In the meantime the voice of prudence tells us: sufficient unto the day are the evils thereof; better not to fly to evils, even deeper, we know not of.

Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College and the Founder/Director of the James Wilson Institute on Natural Rights & the American Founding. He is the author of 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 available for download. His new book is Mere Natural Law: Originalism and the Anchoring Truths of the Constitution.