Arguments Ever New

January 23, the first weekday after the anniversary of Roe v. Wade:  The March for Life was assembling in Washington, and I found myself, not in Jerusalem, but Athens (Ohio, that is), the site of the first university in the Northwest Territory, Ohio University (founded in 1804).

Two young historians, Robert Ingram and my former student Paul Milazzo, had founded a program to bring to the campus voices and perspectives not usually heard there. They thought we should sound the argument on abortion to an audience composed of students, and even older people, who have probably never heard any serious argument on abortion.

The jolting part, for many of these people, is to hear that the argument is a weave of embryology and moral reasoning. It begins with what science knows about human life from its beginning, but it then moves with the discipline of principled reasoning.

The revelation, as ever, is that there is no appeal to revelation or faith. It is all what we might call “natural law reasoning” – and we throw in, as an aside:  “by the way, that has always been the teaching of the Catholic Church, that you don’t have to be Catholic to understand these arguments.”

The constant surprise is that the most elementary arguments, which we have been making for more than thirty years, still come as news to people, for those slogans without substance still hang on:  “It’s her body.  She has to carry it.”

Whether they carry the label or not, the answers still offer a version of Moral Reasoning 101. A British professor of history, knowing most of the answer himself, asked me to respond to the argument of his students that “it’s her body.”

Well, it’s not solely “her body.”  Unless something is alive and growing in the womb, an abortion is no more “indicated” or relevant than a tonsillectomy. And it is a distinct human life, separate in its genetic definition from that of either parent.

The right to one’s own body never entailed a right to destroy anyone else’s body. And if we are clear that we are dealing with an unjustified taking of a human life, the agent and the location are matters of indifference. So is the victim.

We still recognize in the law, or in our moral understanding, the wrong of self-murder, or suicide. In fact, we recognize a whole class of things so wrong that people may not do them to themselves. They may not contract themselves into servitude or slavery; they may not participate in duels even with their consent, rent their bodies for the pleasures of others, or ask a doctor to sever a limb to satisfy a bet.

         The Campus Gate at Ohio University in Athens

We had a name for this class of things:  we used to call them “unalienable” rights – rights we had no right to alienate or waive even for ourselves.

People seem curiously to forget that even the Supreme Court never established as the ground of its holding in Roe a sovereign right of a woman over her own body.  For the Court acknowledged that legislatures could insist that abortions take place only in a licensed clinic or hospital for the sake of safety.

But with that move the Court ruled out the argument of the woman who might say:  “I can use an unlicensed abortionist for far less money, and I should be the sole judge of the risks I’m willing to take with my own body.”

The most notable surprise of this evening came from a professor quite in sympathy with the pro-life movement. He asked how we dealt with the claim that forcing a woman to carry through her pregnancy, against her own wishes, was a form of “involuntary servitude.”
I thought that this kind of argument was made only in precincts of preciosity in the law schools, where professors with imaginations unanchored claim that the laws restricting abortion violated the Thirteenth Amendment (the Amendment that forbade slavery and “involuntary servitude”).

Here the answers were indeed so axiomatic, so rudimentary, that they may not be noticed any longer. In the very “logic of morals,” a “wrongful” act is that which no one ought to do, that anyone may be rightly forbidden from doing.

If we are talking about the taking of innocent life, a killing without justification, then no one suffers a wrong, or the deprivation of his rights, when he is restrained from carrying out a wrongful act.  As Aquinas – and Lincoln – taught, we cannot coherently claim a “right to do a wrong.”

We cannot be said to be suffering the wrong of “involuntary servitude” or any wrongful denial of our liberties, if we are reminded that we are of course obliged not to destroy a life we have no justification in taking.

The late Fr. Richard John Neuhaus once complained to Rabbi Abraham Heschel that he was invited to Cleveland, but he would be giving arguments he had given so often in other places. And Heschel said something to the effect of “Why, Richard, do you think that the people in Cleveland have already heard what you’ve said in other places?”

The pro-life arguments, for many people, still come as news. Those arguments are never out of season, and we should never tire of sounding them anew. Especially in those dark places found, most likely these days, in college towns.


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.