From the first moments that the issue of abortion began to arise as one of the central, contentious parts of our national politics, it was as plain to the pro-lifers, as it was preposterous and offensive to the pro-choicers, that the issue of abortion and the issue of slavery shared the same root in principle. Every mode of argument for the “right to abortion” found its analogy in the arguments used to justify the right of some humans to hold others as slaves. Abraham Lincoln crystallized the matter, in a moment of high clarity, when he remarked that Stephen Douglas’s policy of “popular sovereignty” reduced finally to this: “the right of one man to make a slave of another without any right in that other, or any one else, to object.” In our own time the philosopher Russell Hittinger would draw the parallel to abortion: that one person may kill another and a third may not object—for it is a matter now of “privacy.” But of course there could be no right of privacy to take the life of another human being for wholly private reasons, short of preserving one’s own life from a deliberate assault (a design that could never be imputed to a child in the womb). The matter had to turn on whether the life that was extinguished was really a “human” life. Cutting to the root of things, as usual, Lincoln argued that the question about slavery was
whether a negro is not or is a man. If he is not a man, why in that case, he who is a man may, as a matter of self-government, do just as he pleases with him. But if the negro is a man,…then my ancient faith teaches me that “all men are created equal;” and that there can be no moral right in connection with one man’s making a slave of another.
The surprise is that the comparison of slavery and abortion should ever have occasioned surprise. For at the core of both matters was that question of what John Paul II would call “the human person.” In our own age, and in Lincoln’s as well, we were already distant from Aristotle’s biology. No educated person could have held that the offspring in the human womb went through an “animal” stage before it advanced to the condition of a “rational” human conceptus, embryo, fetus, child. There was no change in substance anywhere along the chain of development as the same creature powered and integrated its own development.
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Nor was the central fact of the matter refracted or altered by “religious belief.” It was a matter solely of principled reasoning. Those of us who became active in the pro-life movement would draw our premier example here from that fragment Lincoln wrote for himself when he imagined himself to be engaged in a conversation with an owner of slaves, putting the question of how one could be justified in making a slave of a black man. Was it a matter of color: “the lighter having the right to enslave the darker? Take care. By this rule, you are to be slave to the first man you meet, with a fairer skin than your own.” Was it a matter of intellect—that whites were intellectually superior to blacks and “therefore have the right to enslave them? Take care again. By this rule, you are to be slave to the first man you meet, with an intellect superior to your own.” The upshot was that there was nothing to be said to rule out black people as human beings that could not rule out many classes of whites as well.
Some of us would then simply apply the same argument to abortion: Why was that offspring in the womb anything less than human? It didn’t speak? Neither did deaf mutes. It had yet no arms or legs? Well, others lose arms or legs in the course of their lives without losing anything necessary to their standing as human beings to receive the protections of the law. The upshot: there was nothing one could cite to disqualify the unborn child as a human being that would not apply to many people walking about, well outside the womb.
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And so once again, why should anyone have affected to be surprised by the comparison? In the one case came the line: “That is not a real human being; it’s a nigger—it’s something on the evolutionary scale between monkeys and real people.” In the other: “That’s not a human being; it’s a fetus.” Through the simple shift of labels, a whole category of human beings would be removed from the class of “rights-bearing” beings. They would be transferred to a class of entities whose lives could be taken without the need to render a justification in the forums of the law.
In all of this, as I say, there is nothing novel except the astonishment discovered, and the offense triggered anew, with each generation of pro-choicers coming of age. What is curiously new and striking is that a young scholar, accomplished in political theory and constitutional law, should take it upon himself to draw out the comparison explicitly with a careful, close tracking of cases, to show how the argument has been unfolded in both spheres: to deny the human standing of the slave and of the child in the womb. But Justin Dyer takes on an added edge in this new book by challenging, not only the partisans of abortion, but a stubborn, strong branch of conservative jurisprudence: he puts himself at odds with the lawyers and writers who find a connection between Roe v. Wade (1973) and Dred Scott v. Sandford (1857) by finding in both the vice of “substantive due process.” Which is to say, the vice of appealing to principles of “natural right” not found in the text of the Constitution. Those writers and lawyers still profess to be shocked that a judge would do what Daniel Webster insisted judges were obliged to do in justifying the judicial function: to look beyond the fact that a statute was passed with all of the formal trappings of legality, and consider whether its very substance could withstand any demanding test of its “justification.”
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Dyer takes the side of Webster in this book, Slavery, Abortion, and the Politics of Constitutional Meaning. A professor of political science at the University of Missouri, he evidently brings to the teaching of constitutional law a background of preparation in political philosophy. “Over the last forty years,” he writes, “with developments in both medicine and law—the new constitutional questions implicated by Roe have only served to underscore the impossibility of avoiding such substantive constitutional analysis.” Some conservatives see a line moving from Dred Scott through the famous Lochner case (1906, on maximum hours for bakers) to Roe v. Wade. But with any serious understanding of the logical properties of the arguments, Dyer argues, “Roe is more accurately seen as a break with, rather than a continuation of, the natural rights jurisprudence that developed in the first few decades after the ratification of the Fourteenth Amendment.” Justices like Stephen Field, and yes, Rufus Peckham, the author of the opinion in Lochner, saw themselves engaged in the defense of the human person in all of his liberties, including the liberty of ordinary people to make a living at an ordinary calling. In a telling contrast, the formidable Harlan Stone, appointed to the Court by Calvin Coolidge, showed how deeply the teaching of relativism had penetrated even among supposedly conservative judges. Dyer points to Stone in 1936 remarking that the 14th Amendment no more contained a “preference for some particular set of economic beliefs than it has adopted, in the name of liberty, the system of theology which we happen to approve.” This graduate of Amherst and the Columbia Law School could no longer speak of real “principles” of natural right, grounded in “truths”—any more than he thought Christianity could invoke “truths” along with its attendant faith. But if all moral judgments now reduced simply to “beliefs,” why would the beliefs of the religious stand on a lower epistemic plane than any other beliefs about politics and justice? And so, as Dyer asks, “What if a state government adopted a theological program under a sincere and religious belief that public piety was related to the health, safety, and morals of the community?” Why, he asks, would the Court strike down this bit of “social regulation” while it sustained regulations based on theories far more tenuous?
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In tracing the arguments on slavery, Dyer recalls the “paradigmatic” case of North Carolina v. Mann (1829) with Judge Thomas Ruffin, later hailed by Roscoe Pound at Harvard as one of the “great judges of the formative era of our law.” The case involved a slave girl named Lydia, who had been hired out to a third party. The master reproved her for some minor offense—and then shot her in the back as she ran away. A jury found the man’s actions “cruel and unwarrantable and disproportionate to the offence committed by the slave.” But Judge Ruffin overturned the verdict by taking the system of slavery to its root moral premises:
[A slave is one who] has no will of his own; who surrenders his will in implicit obedience to that of another. Such obedience is the consequence only of uncontrolled authority over the body.… [A]s a principle of moral right every person in his retirement must repudiate it. But in the actual condition of things, it must be so. There is no remedy. This discipline belongs to the state of slavery.
In other words, the injuries of the slave did not count or register, because the slave himself did not count as a real person, whose injuries mattered. And so we fast-forward and find President Bill Clinton vetoing the bill that banned the grisly procedure of “partial-birth abortion”—with 70% of the baby’s body dangling from the birth canal, the baby’s head was punctured, the brains sucked out, and the body removed, so to speak, intact, leaving behind no dismembered parts that could cause infection. In vetoing the bill Clinton expressed deep concern for those women whose health could be protected by the use of this procedure. But screened from his sense of the scene was that other person, the one whose head was being punctured and brains vacuumed out. That assault on “health,” that grievous pain inflicted without an anesthetic, just didn’t register. The pain did not count because the child herself did not count.
Dyer may surprise certain conservatives by pointing out that Harry Blackmun, the author of Roe, could have been seen as taking the line of an “originalist.” In the text of the Constitution, “persons” were “held to service” under the laws of one State or “escaping into another”; or they were “born or naturalized.” In other words, they were mobile and post-natal! Blackmun would also cite a historical study, later proved to be egregiously false, that the statutes on abortion in the 19th century were meant only to protect women from incompetent, pretended doctors, not to protect the unborn child. And yet any serious canvassing of the medical texts and the treatises on the law, even in the 1860s, showed a key clarity on the point that a child in the womb was a human being from the first moments. In 1868, the year that the 14th Amendment passed, the redoubtable Horatio Storer wrote in his book Criminal Abortion that
[i]f the foetus be a lifeless excretion, however soon it might have received life, the offence is comparatively as nothing: [but] if the foetus be already, and from the very outset, a human being alive, however early its stage of development, and existing independently of its mother, though drawing its sustenance from her, the offence becomes, in every stage of pregnancy, MURDER.
In our own day we find people with pricey degrees, even Ph.Ds, who profess not to know what medical science, or the textbooks on embryology, teach about the beginning of human life. Or they supplant those facts with a theory of when “meaningful life” begins. But as late as 1964 it could be taken as a settled fact by professors of law that there was no serious dispute on the question. W. Prosser in his famous Handbook on the Law of Torts could note that
medical authority has recognized long since that the child is in existence from the moment of conception, and for many purposes its existence is recognized by the law. The criminal law regards it as a separate entity, and the law of property consider it in being for all purposes which are to its benefit, such as taking by will or descent.… [T]he unborn child in the path of an automobile is as much a person in the street as the mother.
As Dyer notes, the attorney general of Texas, defending the statute at issue in Roe v. Wade, was no less precise in drawing on the textbooks in embryology in making exactly the same case. It could not be said that the Court was kept in the dark, shielded from the most up-to-date findings of science. Blackmun did note that the State of Texas, in its brief, had set forth “at length and in detail the well known facts of fetal development.” But those medical “facts,” now “well known,” would have no decisive bearing. Blackmun could now insist that the unborn child or fetus did not count, as Dyer says, as a “constitutional person.” And with that premise planted, the Court would strike down over the years a series of measures to limit or scale back that “abortion liberty.” Dyer recalls the telling observation of John Noonan that, in Blackmun’s positivist jurisprudence, the human “person” refers to “no natural reality but a construction of juristic thinking.” Thirty years later, federal judge Maryanne Trump Barry in New Jersey, sister of Donald Trump and appointee of Ronald Reagan, would reflect the understanding absorbed widely now by judges as she reacted with disbelief and outrage at the attempt of New Jersey to bar partial-birth abortion. The legislation, she wrote, involved “semantic machinations, irrational linedrawing, and an obvious attempt to inflame public opinion”:
the Legislature would have us accept, and the public believe, that during a “partial birth abortion” the fetus is in the process of being “born” at the time of its demise. It is not. A woman seeking an abortion is plainly not seeking to give birth.
Blackmun’s judicial state of mind had achieved its fullest expression in a kind of “postmodern” jurisprudence. There were no objective facts—no birth, no “child” being killed at the point of birth, because the mother, after all, had elected an abortion. Once she had made that fateful choice, there was no birth to take place, no child to be killed.
When the Supreme Court dealt with the statute in Nebraska on partial-birth abortion in Stenberg v. Carhart (2000), Justice Ruth Bader Ginsburg remarked that the grisly nature of the procedure had no relevance in principle to the rightness of abortion. Whether the child was dismembered inside the womb, or dismembered upon leaving it, made no difference to the essential “right” of a woman to have it killed. Whether either of these procedures was “more akin to infanticide than the other, or that the State furthers any legitimate interest by banning one but not the other, is simply irrational.” And she did have a point: since both procedures involve the killing of the same human being, it was indeed quite beside the point to contend, in the style of Daniel Patrick Moynihan, that partial-birth abortion was closer to infanticide. But Ginsburg, in her usual acuity, may have given away more than she had quite realized. For as Dyer observes,
[I]f it was indeed irrational to distinguish between the killing of a baby whose “body past the trunk is outside the body of the mother,” and the killing of a baby still in utero, it was surely just as irrational to make a further distinction for a baby already born—since the point of Ginsburg’s argument was that the location of the baby during his or her death was irrelevant.
In other words, Ginsburg could not make this argument without withdrawing her objections from infanticide itself; and infanticide would cease to matter only if homicide in general ceased to matter.
In this way does “modernity” cycle in on itself as the same old story. Whether it is John C. Calhoun or Harry Blackmun, the “hard nut to crack,” as Lincoln would say, is that “truth” about the “human person.” The need to deny that truth must ever be the source of that authority, untroubled with doubts, to invoke brute power over others as the means of denying both liberty and life. And the only thing novel is that, with each generation, the news comes as a surprise.