Judges and Their Occupational Hazards

It was one of those threads running through the Platonic dialogues: Socrates would undo the facile arguments offered by a string of “interlocutors,” serving up maxims for the good and just life; and he would do it by showing that the maxim would reveal its emptiness as soon as it was connected to any case of moral substance. And so, very early in the Republic the question was posed as to whether justice inhered in always speaking the truth?

Socrates put the question: What if a friend, whom you knew to be deranged, asked you the whereabouts of a weapon? Others of us would ask: were the householders obliged to tell the truth to the Gestapo about the Jews they were hiding? The point was that not every instance of speaking falsely is unjustified and wrongful. A “lie” is an act of speaking falsely in order to defraud or to inflict an unwarranted harm. In short, if we can act upon a purported “principle” while doing wrongful things, that should alert us that we don’t have in hand a real moral “principle.”

The same kind of mistake is persistently made in the law: Phrases such as “freedom of speech” are taken to mark high principles, as though they were categorical in nature. But it’s been long recognized in the law – and in our common discourse – that speech may be used, along with any other part of our freedom, as a weapon to inflict wrongful harms: it may be the threatening phone calls, the extortionate letters, or the burning of crosses.

What brings me to all of this now is decision of the Supreme Court to hear an appeal this year in a case on abortion coming out of Texas, Whole Women Health v. Cole. The law requires that the surgeons performing abortions have admitting privileges at a local hospital. That was not only an added test of competence for the physician, but a guarantee of access for the patient to a full-scale hospital. The law further provided that each abortion clinic must have the same facilities as a surgical center.

The move to heighten the regulations was obviously animated in large part by the moral objection to the abortions themselves, and the desire to see these surgeries discouraged and reduced. Yet the claim was trumpeted for many years that abortion was safer than live births, a claim later shown to be quite false.

There should be no complaint then from the clinics that the law is now imposing on them the same regimen of inspections and rules it applies to other medical facilities, and even to some small businesses. But the hard fact was that these clinics could not readily meet those standards.

Socrates [National Academy of Athens, Greece]
Socrates [National Academy of Athens, Greece]

The plaintiffs contended that all abortion clinics in Texas could be closed down. The federal appellate court was not persuaded that was true. Still, the clinics in El Paso and Corpus Christi did have to close. Women near Corpus Christi would have to travel then about 235 miles to San Antonio in order to get an abortion. In Texas, that doesn’t strike people as a gargantuan drive, and yet that becomes the ground of the appeal: In making people travel further in this way, is the law imposing an “undue burden” on the freedom of a woman to order an abortion?

The phrase “undue burden” came from the case of Planned Parenthood v. Casey (1992). But the Supreme Court in that case insisted that it wasn’t an “undue burden” if the law simply made that right to abortion more difficult to exercise. Courts in Texas had accepted a distance of 150 miles as less than an “undue burden.” And it was pointed out that Casey “permitted even farther distances than 150 miles because it involved a 24–hour waiting period” and some women were required to drive for more than three hours.

But if we could step back for a moment, what would this discussion sound like if the question were connected here to the issue of moral substance: Would it be an “undue burden,” or an unwarranted hardship, if a person were required to travel 250 miles and more than three hours before he or she was given a license to destroy an innocent human life?

The question, cast in that form, could be readily understood, and quite as readily answered, by ordinary folk. But that mode of discourse is screened from the prose of the judges, weighing the issues, because the judges are working within the framework of the positive law: the positive law that proclaims a high “right to abortion” and screens the victim from view as a victim.

And so the judges in the lower court noted that “even assuming. . .that 150 miles is the relevant cut-off,” would there still be a “large fraction” of cases in which women are discouraged from having an abortion. But nothing in the notion of “a large fraction” or “150 miles” furnishes any moral or juridical principle.  Why are these judges, accomplished men and women, expending their genius in pondering matters of this kind?   They agonize over these phrases precisely because they are working under the positive law springing from Roe v. Wade.

But then the further melancholy result: If the judges are compelled to spend their days and lives writing in this way, can we not see how minds once cultivated are forced to start absorbing, as an occupational hazard, the idiocies of the positive law?

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.