The Puzzle and the Challenge of Pro-Life Legislation

I have been arguing in these columns that the stage has been set by the Roberts Court to sustain a series of pro-life measures that could take on a cumulative force.  But it becomes all the more important then that these measures not get drawn away to side-issues, as beguiling as they might be. These pro-life measures claim their importance for us to the extent that they keep the focus on the innocent being who is killed in an abortion.  No one could deny, for example, the need to deal with traumas, and the real hurts, suffered later by the women who have undergone the surgery of abortion. Still, we could be immersed in that project without planting in the law any premises that bear on the human standing of that child in the womb, and laying the ground then for other steps to follow.

But there is a perplexity already built into the cast of the law given to us by the courts under Roe v. Wade: The judges are poised to strike down any bill that simply asserts the human standing of the child from its first moments, or treats the killing of the child on the same plane as the killing of any other human being. The pro-life measures are forced into a cast then of indirection. It may make the most profound difference for many women to discover that child they are carrying is already sucking its thumb or that it has a discernible heart beat. And yet, the oddity here is that these measures of “informed consent” leave entirely unchallenged the premise that the decision rests with the woman herself, to destroy the child for any reason she regards as sufficient.

It becomes all the more curious that the judges have sought to resist, as “coercive,” even the mildest moves to give a woman information on the state of the child in the womb. The problem for the judges is not that the “informing” of the woman is coercive, but that it leads her away from the “choice” that the judges have come to see as the presumptively superior and most desirable choice. Still, with all of the indirection, these measures for “informed consent” are salutary because the argument keeps whirling around the question of just what it is that Planned Parenthood, and their allies among the judges, are so fearful that women will see.

The same kind of problem is sharpened with measures that seek the involvement of one or both parents when an abortion is performed on their teenage daughter. The sociologist Michael New has shown, in a comparison of fifty States between 1985 and 1999, that laws requiring the involvement of the parents reduced the rate of abortion by an average of more than 13 percent. With the involvement of two parents, that figure rises to 31 percent. In the past it was regarded as an assault if a doctor would administer a shot to a child, or even remove a wart, without the consent of a parent. For abortion, the judges created an entirely separate enclave, detached from the usual laws governing parents and children. Still, the argument, when it is waged, centers on the right of the parent to be informed, not on the destruction of the child of the child. And of course we know that some parents, when informed, become the most active agents in procuring the abortion.

During the trial in New York over the federal bill on partial-birth abortion, Judge Richard Casey put a question to a professor of anesthesiology who was opposed to the bill: Had he ever thought of administering anesthesia to the child killed with this gruesome method? With the body of the child dangling outside the birth canal, the head of the child was punctured, the contents of the skull sucked out. Surely this procedure had to inflict the most excruciating pain on the child. The professor was taken up short, for the question had just never occurred him. It was not that he was anything but alert to patients suffering pain. The point rather was that the decision had been made and absorbed long ago that the child in the womb just doesn’t count. Not as a presence or as a person. And so its pains simply do not register among the things that matter.

But of course, the very proposal for an anesthetic leaves unchallenged the right to order the destruction of the child. And would that killing of the child – or of anyone else – be any less of a wrong if the victim of the killing had been nicely anesthetized? Still, it must be worth posing the question of the anesthesia simply for the sake of jolting, from their dogmatic slumber, the people who have been content to put out their minds that real human beings are “terminated” in these surgeries.

We are reminded then that some of the measures that have a more pronounced effect in reducing abortions – and saving lives – do not rest on premises that affirm the human standing of the child or its claim to the protections of the law. The question remains then of why we would argue, nevertheless, for the centrality of those measures that focus on the victim, the human child, even when they may not promise yet to save many lives. And that case will come – next time.

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.