Apropos of the big news of this week — the leak of what is presumed to be the Supreme Court’s position (if only in draft form) that it will overturn Roe vs. Wade and return the issue of abortion to the state legislatures — here are some excerpts from the chapter on Abortion in my book, American Conservative — Reclaiming Conservatism From the Right (2016).
Update, 30 August, 2022: The decision finally came down and was, indeed, as presumed. This was my reaction to the aftermath…
August 2016
To the pro-life community, there is only one issue and one answer relevant to the debate over abortion: a fetus is a human life that demands protection under the law. In this view, debates about personal liberty or constitutional meaning are irrelevant.
Pro-choice advocates counter that the pregnant woman also has rights deserving of protection, and are incredulous when those rights are dismissed wholesale as beside the point. The fact of a moral tradeoff between the interests of the mother and those of the fetus seem so clear to them, in that limited context, that they cannot imagine how one could view it otherwise. But consider the following scenario.
Imagine a set of conjoined twins, George and Barack, who share enough vital organs that they cannot be separated without killing one of them. One day they go for a bicycle ride and, during the ride, because George misjudges the steering, they hit a rock and crash. George is unhurt, but Barack hits his head and ends up in a coma with no perceptible brain function.
The doctors say there is a small chance that Barack will die within the next three months; otherwise there is a good chance that brain function will resume within that time, and he will awake from his coma within another three months or so – and require years of therapy to fully recover. If brain function never returns, he will certainly die within the year.
During all this waiting for death or recovery, George will be tied to his brother – responsible for caring for him, feeding him, and seeing to his treatment, his activities constrained by their physical connection. On the other hand, if the two were to be surgically separated, then George could live out his life free from that constraint – but at the expense of ensuring that Barack, who is otherwise likely eventually to recover, will die.
Clearly George is facing a sudden, unexpected, enormous, life-altering burden, one that will last for years, and for which he may be unprepared. Separation from his twin would save him from that ordeal; does he have the right to order it?
This situation, while tragic, presents a fairly clear moral choice for most people: Barack’s life – however enfeebled and tenuous it may currently be – demands deference, and must take precedence over George’s burden. George can’t order that they be separated until Barack is dead, by whatever criteria – physical or mental – death may be judged.
If you believe that a human fetus, regardless of age, constitutes ‘human life’ – however feeble and tenuous it may currently be – this is a realistic and illuminating analogy for an unwanted pregnancy and the choice of abortion: two individual lives physically linked, one independent and one dependent, one exercising free will and one insensate.
In fact, it is a good working analogy even if you don’t believe that life begins at conception: whether you think it happens earlier or later, at some point a fetus does make the transition from mere human embryonic cells to a ‘human life’. At that point the mother, under any system which affords human life an innate value and dignity, must lose her status as a wholly free agent with regard to their intertwined fate. In the parlance of law, the state, at that point, acquires a ‘compelling interest’ in protecting the rights of the individual – and, therefore, a right and a duty to interfere in otherwise personal decisions. I suspect that most rational people, whichever side of the abortion debate they inhabit, could agree at least on that much.
On the question of the “right to life”, then, the crux of the issue is not “does the state have a compelling interest after some point,” but “what is that point?” At the extreme of ‘pro-life’ are those who contend it occurs at conception; at the extreme of ‘pro-choice’ are those who contend it occurs at birth. Most people, including most on the pro-choice side, find themselves where the Supreme Court did, somewhere in between, with the first trimester most likely ‘embryo’, the third trimester most likely ‘human’, and the second trimester hotly debated. But all of those answers – even those on the pro-choice side – are based on faith more than on science. The point is, no one knows, objectively, what constitutes the boundary of ‘human life’. And there is not and will not be – cannot be – a consensus on the question.
But if we cannot find a consensus, what is the prudent and moral position for the state to take?
From the pro-life perspective, one would argue that, in the absence of consensus, the safe choice is to assume that life starts at conception and protect it appropriately: in that case, we never run the risk of extinguishing it. On its face, that is perfectly rational. It is, “Err on the side of caution.” It is the justification cited for Illinois’ moratorium on the death penalty, to ensure there will be no execution of the innocent; it is the “precautionary principle”, the rationale used by environmentalists to argue for more regulation of greenhouse gases and industrial chemicals, even absent compelling evidence of their hazard; it is the philosophy enshrined in the Hippocratic oath: “First, do no harm.”
As illustrated often in the context of environmental issues, however, regulation is not cost-free and the costs of regulation can sometimes be as harmful as what is being regulated. In the case of abortion, the costs of regulation are borne by pregnant women as a usurpation of their autonomy, and there is an equally reasonable argument that the resulting restrictions on liberty are far too onerous to be justified by ‘potential’ benefits. In that view, prohibiting abortion to prevent killing a ‘potential life’ would be like locking up each teenage boy until age 25 to save ‘potential victims’ from the possibility that he is a budding sociopath: that policy might (and undoubtedly would) save lives, but it is unacceptable in a free society.
From the opposite perspective, one can argue that, in the absence of consensus, the best course is no course at all – let the individual decide based on her own beliefs and her own conscience. That is the mainstream pro-choice position and it is appealing, not only in its promise of protection against a tyranny of a minority, but also in that it acknowledges the fundamentally personal nature of the decision.
But leaving it to individual conscience can also be problematic. Consider that, prior to the Civil War, a great many Americans believed slavery was justified precisely because the Negro was not quite human, at least not in the sense that the term applied to the rights to ‘life, liberty, and the pursuit of happiness’. In the absence of consensus on the ‘humanity of the Negro’, would it have been a proper and moral choice for the government to have deferred that judgment to the individual, rather than embodying the just choice in law by abolishing slavery? That was, after all, nominally what the Confederacy was established to achieve.
What, then, should we do? The best we can, I suppose, which is what the Supreme Court attempted in 1973. We know from philosophy and theology that, whatever else may make us human, consciousness and self-awareness are consistent themes; we know from science that these reside somewhere within the brain. We routinely use ‘brain death’ to put a boundary on the far end of life and it seems reasonable to do so on the near end as well. Other than religious dogma, there is no reason to suppose that a small collection of embryonic cells with no discernible nervous system or higher brain function is fully ‘human life’; other than its locale, there is no reason to suppose that a wholly formed but yet-unborn fetus with both is not. In between, we just don’t know, so we draw a line somewhere plausible: at the start of brain function, or at ‘quickening’, or at the point of ‘viability’, or at a fixed point in time. Exactly where the line lies depends as much on our ability to measure something as it does on what we measure.
Then, if we are prudent, we do everything we can to ensure we never have to decide a case close to the line.
…
Whereas pro-life advocates cannot see beyond the question of when life begins, the pro-choice community dismisses that question entirely as answered or unanswerable and, in either case, irrelevant. For them, the debate revolves around a different question: absent a compelling interest in protecting the rights of the individual human life, what role should – and what role may – the state play in regulating abortion? In the pro-life world-view, this question is moot because the compelling interest in protecting human life is assumed to exist; in the pro-choice world-view, this question is paramount because the compelling interest in protecting human life is assumed to be absent.
It is easy and satisfying to propose, as pro-choice advocates do, that the state can have no possible claim to jurisdiction in the realm of such private behavior – in the realm of something so personal. Indeed, any civil libertarian would wholeheartedly embrace that position, and the general public currently seems to agree. A review of the history of twentieth century political thought, legislation, and jurisprudence, however, lends neither a moral foundation nor a practical support for such a proposition.
The dominant theme in the progression of twentieth and twenty-first century politics and society has been the erosion of autonomy. From the emergence of socialism, to the New Deal and the Great Society, to the modern regulatory state, we have seen the ascendance of government authority and government oversight over ever finer details of our lives.
Today the federal government claims and exercises authority over what foods we may eat, what recreational and medicinal drugs we may ingest, what prices we may charge for our labor or for use of our capital, how much water we can use to flush our toilets, what safety features we must buy in a car, how we must insure our health. Various state and local governments regulate our choices for child care and education, whether we must have fluoride in our drinking water, whether we wear seatbelts in our cars, what our children must be taught about sexuality in school, what immunizations our children must receive, where we may smoke, the color we may paint our houses, how many cars we may have in our yards. Restrictions on personal financial arrangements abound. Public transit advocates want to restrict our choice to drive a car. Advocates of ‘multiculturalism’ propose speech codes to regulate the expression of ‘hateful’ ideas, while advocates for the arts propose to use tax money to create art that some find hateful. The religious right wants to require public prayer in the schools; the ACLU wants to abolish public prayer anywhere the government claims even a remote interest. Ralph Nader and John McCain, and many allies, want to prohibit us giving any significant amount of our money to those who would advocate for our political beliefs. Gun control advocates want to prohibit the private possession of firearms. Hard-core feminists join with the religious right to advocate continuation of existing restrictions on prostitution, or creation of broader restrictions on pornography.
Perhaps those regulations are worthwhile. Perhaps they are even worth the corresponding injury to individual liberty. But what can be more personal than your choice of what you eat and breathe, or how you value your own labor, or on what you spend your money, or why and with whom you have sex, or what you read and watch in the privacy of your home, or who you permit to view your naked body and under what circumstances, or how you express your pleasure or displeasure to others?
These and myriad other encroachments upon personal liberties exist because legislatures and executives, at the urging of citizens and with the blessing of the judiciary, have determined that some “compelling societal interest” – in order, in fairness, in justice, in safety, in comfort, in security, in morality – is more important than each particular liberty being curtailed. The same argument can be made for abortion: even those who support a woman’s right to choose commonly concede that abortion itself is undesirable, that society would be better off if it happened less often. How far is it from that concession to a “compelling societal interest” in regulating it? And, given the endless examples of other behaviors that are fundamentally “personal” and that the government, nonetheless, regulates, what sets abortion apart as something morally beyond its reach?
…
Imagine you buy a piece of property upon which to build your dream home. Before you build, you carefully research all the zoning laws in the town to make sure your house is in compliance. Yet, when you are finished, the town government declares you in violation of the law, and orders you to tear down your house, on the grounds that it is “ugly”. There is nothing anywhere in the ordinances regulating ugliness – in fact neither the word nor any of its synonyms appear in the text of the building code. Nonetheless, the zoning department finds that ugliness is forbidden due to “penumbras formed by emanations from specific items in the zoning code which help give them life and substance”, penumbras and emanations which, taken together, imply that ugliness is proscribed.
That, roughly speaking, describes the constitutional foundation upon which the ‘right’ to abortion rests. And the decrepit nature of that foundation is reflected in the tenuous balance of opinion on the Supreme Court that protects it from being overturned. If you find the language of the example – “penumbras formed by emanations…that help give them life and substance” – too bizarre or intangible to be taken seriously as a comfortable basis for law, then you, too, might overturn the right to abortion: it is precisely those words[1] that form the basis for the constitutional ‘right to privacy’ upon which the right to abortion depends.
In deference to the Court, the point they were making is less esoteric than the flowery language would imply. There have been many rulings from the Court in which specific guarantees of the Bill of Rights – for example, protection of free speech – have been logically extended to apply to other activities that are not actually mentioned in the text – for example, freedom of association. In this case the argument is that freedom of speech would be an empty promise without freedom in the specific means of speech, one of which is “association” with other, like-minded people (the same reasoning, by the way, is behind the so called “money-equals-speech” decisions by the court: that the promise of freedom of speech would be an empty promise without freedom in the specific means of speech, one of which is the ability to pay for publication and/or broadcast of that speech).
These specific, practical applications of a general principle found in the text are the “emanations from those guarantees that help give them life and substance”.
To the extent that different provisions of the Constitution (and their “emanations”) seem to be specific instances of a more general philosophical theme – for instance, of a ‘right to privacy’ – one might presume that a statement of the general theme could, itself, also be considered a part of the Bill of Rights. As the 10th amendment to the Constitution reminds us, the Bill of Rights was never intended as an exhaustive list, was never intended to imply an automatic grant of government authority over anything and everything not explicitly proscribed within the text of the Constitution. Quite the contrary: the intent of the Constitution was that authority must be explicitly granted to the government, and that anything not so granted was to be beyond its jurisdiction. Hence, it is not unreasonable to extrapolate from the specifics identified in the Bill of Rights to the general themes they represent. Those more general statements of principle are the “penumbras” of the Griswold opinion, penumbras which become new constitutional guarantees and creating, in turn, their own new “emanations” and “penumbras” in an exponential cascade.
…
It may seem obvious to some that judges should be allowed leeway in applying laws to new situations in new times. No legislature can anticipate and accommodate social, political, and technological change even a decade ahead. Laws designed for the horse and carriage may not apply as well to the automobile, much less to the airplane. The law must be adaptable. And when the result is the discovery of new ‘rights’ for the citizens, it seems we all must benefit.
But, as the example of the ugly house shows, such freedom can impose a cost, in both the predictability and the fairness of law. If the meaning of law cannot be discerned from a reasonable reading of its text, how is one to conform to it? And, if the meaning is open to wide interpretation by different judges at different times, how is it to be applied equivalently to everyone? Laws created in the age of horse and carriage may not be well-suited to the age of the automobile and the airplane. But, perhaps, rather than depending on the courts to figure out how to make them apply anyway, we should, instead, demand that the legislature re-write them in a more appropriate fashion.
For adaptation – the remaking of law – is a legislative function, not a judicial one, assigned by the Constitution to the legislature and not to the courts. And for good reason: granted authority to decide what the law intends when its text is silent, or to redefine the meaning of that text when it is not, or to hold its provisions unenforceable because they are anachronistic or socially unacceptable, a judge becomes a de-facto legislator – but without the electoral exposure that constrains our actual representatives.
In the case of the Supreme Court, he becomes a super-legislator, unconstrained either by electoral exposure or by subsequent judicial or legislative review for, in our system, the nine appointed justices of the Supreme Court get the final word on the meaning of law. As George F. Will asked in his 1995 essay, “Eventful 1965”[2], “Armed with emanating penumbras, what could the Court not do?” Even if you agree with what the Court has done with that authority, you may doubt the wisdom of allowing such unfettered power over the content of law by nine appointed individuals with lifetime tenure.
And indeed, what the Court has done with that authority over the last seventy or eighty years has been to vastly expand the scope and power of the federal government over behavior that was previously seen as the purview either of the individual states or of individual citizens. For this reason, the authority to ‘legislate from the bench’ implied by broad construction is seen by many as the greatest threat to liberty we face today, with the potential to completely undermine the rule of law.
It is, however, also the basis for a great many Supreme Court decisions on which the constitutional legitimacy of the modern regulatory/welfare state rests. Thus, a return to true strict construction, by returning authority for such issues as civil rights and environmental regulation from the federal to the state governments, could threaten a great deal more than just abortion rights.
[1] U.S. Supreme Court, Griswold v. Connecticut, 1973
[2] Collected in The Woven Figure, Touchstone, 1997
…
An embryo or fetus with the higher cerebral functions not yet engaged – pre-sentient and without the consciousness from which may eventually emerge self-awareness and free will – has the potential to become human not the quintessence of humanity. In my areligious worldview, with no faith in some revealed and ancient catechism to instruct me on whether or not a soul exists independent of corporeal sentience and on when such a soul might manifest, I cannot justify surrendering to government unfettered authority over a palpable liberty that already exists in the defense of some ineffable essence that may yet come to be.
And yet, I must agree with the religious conservatives – not out of any theological insight but out of a humanist and libertarian respect for human dignity – that such potential for ineffable essence has value. And, therefore, I equally cannot countenance the view that discarding such potential is an act utterly without moral import. Nor can I countenance the view, extreme but seemingly common on the far “left” and particularly among the feminist fringe, that such ineffable essence somehow suddenly and miraculously materializes at the emergence from the birth canal and not an instant before.
It seems clear, to me at least, that at some point, after the cerebral cortex begins functioning and prior to full-term birth, the potential of a human fetus transforms into the quintessence of a human baby. It seems equally clear that by exercising one choice – to carry a pregnancy to that point of quintessence – a woman, herself, circumscribes other choices including, in particular, the choice to have an abortion thereafter.
And, even if you believe that, prior to the point of quintessence, a fetus or embryo lacks sufficient moral standing to justify what would otherwise be an improper government interference with a woman’s autonomy, that does not mean you must believe abortion is either desirable or inconsequential. It certainly doesn’t mean you must accept that abortion should be a casual and common act.
As with obnoxious speech, or pornography, or flag burning, or drug use, or sexual appetites, or greed, or smoking, or gun possession, or eating trans-fats, or driving an SUV, we may and should separate the questions of whether and when one ought to engage in a particular behavior from the questions of whether and when the government may assume authority to regulate it. And, as with obnoxious speech, or pornography, or flag burning, or drug use, or sexual appetites, or greed, or smoking, or gun possession, or eating trans-fats, or driving an SUV, how objectionable abortion may be is a matter of degree, a function of how far along the path from human tissue to human being a particular embryo has progressed. Discarding a blastocyst may be a relatively minor thing; discarding a fetus on the cusp of consciousness is almost certainly not, especially given how little we know about the nature and timing of that mysterious transition.
In that sense, the frequently disparaged “moderate” notion that abortion should be “safe, legal, and rare” is not some ugly political compromise but an honest, well-reasoned, and principled statement of humanist values – provided, at least, that an emphasis on rarity over legality advances along with fetal development. It is also fundamentally ‘conservative’ in the traditional libertarian and cultural senses of ‘conservatism’: the coupling of legality with rarity implies a reliance on non-binding and apolitical social sanction – on social condemnation and a sense of personal shame and (dare I say it?) a modicum of intolerance – as a legitimate and effective alternative to government regulation for controlling anti-social – or merely disagreeable – behavior.
© Copyright 2022, Augustus P. Lowell