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The Design of Legislation: Searching for the Key

In my last column [1], 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:

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 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.