New Orders, Old Fallacies

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 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.