Twisting our Language to Fit the Courts

In times of contagion and war, unelected judges have been rightly timid about challenging and checking the decisions made by those high figures in elective office, who bear a more direct responsibility to the people whose lives are in danger.   And so I told a correspondent who wrote to me last week.  But I told him also that we are likely now to see the first dramatic case to impose limits on those powers, for the question was bound to arise as to why it was vital to keep abortion clinics open and thriving while other businesses are being closed down in the current crisis.

If the move was made to close the clinics, there would be no want of federal judges ready to say that, in radical contrast to the retail business in clothing and bars, the business of the abortion clinics was bound up with a deep “constitutional right.”

As if written by script, that is the way things have played out now as Texas, Ohio, and Alabama have sought to close down their clinics. Federal judges in the three States have issued temporary restraining orders to block the closing of the clinics, and we are likely to see the same play unfolded as moves are afoot in Iowa, Mississippi, and Oklahoma to close clinics there as well. And we know how it will all come out.

All about us, we see legitimate businesses closed down as governments assert the paramount importance of protecting human life.   And yet, are we really to suppose that people in authority, issuing those edicts, are so morally numbed that they will not notice that one of those businesses makes the killing of innocent lives its daily office work?

But the rule of the courts imposes its own language on people in public office, and so they cannot speak the words they really mean here.  The attorneys general have been more inclined to say that the equipment tied up in these clinics could be put to better use in treating victims of the virus.  But that is a thin rationale, easily subject to unraveling, and it will not hold up as a justification for withholding what is heralded as a constitutional right.

The governors in Texas and Ohio would challenge at the root that “constitutional right” to kill the child in the womb, but that is an argument they cannot make while the lower courts are compelled to respect the holding and the language that come along with Roe v Wade.

It has been easily missed, but the same predicaments were at work in the Senate in the attempt a few weeks ago to deal with the bill to protect the survivors of abortion. One standard argument has been that there is no need for the bill because children who survive abortions are protected right now under the laws of homicide in the States.


But that argument misses the deep revelation of the experience in Philadelphia with the killings done by Kermit Gosnell of the babies who survived abortions.  The reports had long come in of the casualties from that clinic, with the dirty, bloody offices.  And yet the authorities had been directed to avert their eyes.  The word got out even to the police to look away because the work in that clinic was tied in with nothing less than a “constitutional right.”

I recalled in an earlier column that during the argument in the Senate over the Born-Alive Act, Sen. Durbin of Illinois summoned the chutzpah to oppose the bill, while flashing his outrage over the mortality rate among newborn black infants, much higher than among whites.

Durbin had to know that the abortions of black infants have recently exceeded the live births of blacks in Chicago.   But if we are to believe him, he sees no human fatalities among those who perish in abortions.

That illusion could have been burst in a stroke if he had been challenged directly to say whether he thought that those babies in the womb actually undergo a change of species when they are born. If not, the laws on homicide have always been indifferent to the size and age of the human victim, have they not?

Those are the sorts of questions that could have drawn Durbin into the kind of exchange that Rick Santorum used, over twenty years ago, to draw in Barbara Boxer, to her own embarrassment – and the instruction of a wider public.

But the manager of the bill, Ben Sasse of Nebraska, had no interest in drawing out Durbin, because his own argument was that “there is nothing in the bill that is about abortion – nothing.”  It was simply about infanticide, killing a child born alive.

With that move Sasse hoped, of course, to appeal to moderates in the country – and in his own party – to impress them with the modest reach of this bill.  But with two or three exceptions, the Democrats would have none of it.   For they knew that the bill was about nothing if not abortion.

It was meant to challenge the premises of abortion at the root – on the human standing of that child marked for killing.  But that is a lesson that Sasse passed up the chance to teach, as he feigned a moderation that lured no one.

This encounter in the Senate we may chalk up as yet another instance in a recurring record: a pro-life politician engages his cleverness to find a path to success by saying, craftily, what he doesn’t really mean.


*Image: Death (‘Nāve’) by Janis Rozentāls, 1897 [Latvian National Museum of Art, Riga]

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.