The Daily Signal - The Future of Abortion Law

Episode Date: July 23, 2022

Hadley Arkes, a long-time commentator on abortion, natural law, and constitutional jurisprudence joins the Daily Signal podcast to discuss the arguments that should be made to defend unborn human life in America. He comments that "value judgment, ..., is a term that we began to use with Nietzsche. When people lost their confidence that they could speak about moral truth. So, they could speak about things, [that] have moral significance as we impart value to them. So, the matter of the value judgment is whether some of us, what do we care enough about? How much are we willing to value the life of that offspring in the womb? How much do we value the efforts to offer care for that life?" Arkes points the way to a principled defense of unborn human life that citizens, legislators, and judges can draw upon to instill the principle of equality for the unborn under law in America. Hosted on Acast. See acast.com/privacy for more information. Learn more about your ad choices. Visit megaphone.fm/adchoices

Hello, I'm Richard Reich. Welcome to the Daily Signal podcast. Today we're talking with Hadley Arcus, an American political scientist, and Edward N. A. Professor of Jurisprudence, an American Institution's Emeritus at Amherst College, where he has taught since 1966. He is the founder and director of the James Wilson Institute on Natural Rights and the American founding. Hadley, thank you so much for joining us to talk about this recent Dobbs decision. and the future of abortion policy and jurisprudence in American law. Well, thanks. So good to see you, Richard. Thanks so much for having me out.

So Hadley, a question here at the beginning. You are a well-known writer, legal, philosophical commentator on the Constitution and on what you argue for are the natural law underpinnings of the Constitution. You've written extensively about abortion for decades. When the Dobbs decision was handed down on June 24th, this past month. What went through your mind? What about this moment? What did you experience? Well, it was, of course, with all, any reservations we may have about it, a great moment. I was active in this movement just before Roe versus Wade. And it was hard to imagine that this thing would come down even in our lifetimes. And it took, let's see, 11 Republican appointments after Roe versus Wade, finally to get five votes going to do this. But the point of disappointment,

well, it runs back to those lawyers in Roe v. Wade, those lawyers from Texas, who assembled the most elegant brief drawing on the updated findings of embryology, woven with principal reasoning, to make this critical point that that offspring in the womb has never been anything other than human from its first moments,

that it receives its nourishment from this mother, but has never been merely a part of the mother. Well, the dissenters in Rome never spoke those words. And the point of disappointment for me and the source of regret and foreboding here is that the conservative majority in Dobbs did not speak those words. So it sent the matter back to the states on the premise expressed by

Justice Cavendor that we cannot know we cannot know that the fetus represents a human life we begin with the with that point of official ignorance about this matter

and so we sent it back to the states on the premise put in place in fact by Justice Scalia that we leave it to people in a separate states to reach their own value judgment on when human life begins. Now, value judgment, as you remember,

is a term that we began to use with Nietzsche, when people lost their confidence that they could speak about moral truths, or they could speak about things have moral significance as we impart value to them. So the matter of the value judgment is whether, some of us, what do we care enough about? How much are we going to value the life of that offspring in the womb?

How much would we value the efforts to offer for care for that life? Well, that was missing, but I've said that this decision, I compared to the Emancipation Proclamation, that Lincoln could not free the slaves in the border states, but everyone understood what brought the Emancipation Proclamation for, was a strong anti-slavery conviction. And that's the way it was understood. So my hope is that this decision, so artfully done by Justice Alino, will generate that kind of energy for the pro-life side.

Hadley, you had an essay in First Things. The day that the Dobbs opinion was issued titled The End of the Beginning of the End of Abortion. and you've been articulating here that the decision sends abortion policy back to the states. You are an author of a number of books, important books, on natural law, natural rights, and the Constitution, one that's meant a lot to me, first things, as well as natural rights and the right to choose, which is very much about abortion, and constitutional illusions and anchoring truths, is now the opportunity, though, for those in the state legislatures to step forward and make these natural law, natural rights arguments on behalf of the unborn in a Republican process. It seems to me that, you know, that takes more time, more courage, more thought, but might be more consistent with the Republican institutions of our government.

Well, it is a fine moment, and you might say that in the cunning of history, we almost suggest a Hagelli of death, we will have those laws in the pro-life states casting protections on the child from the first moments. Those laws are sure to be challenged by the defendants of abortion. And when they are, the conservative judges will no longer have that facile test of viability. Justice Lido did away with that.

He raised the question of why is it we impute value to the life of the child after viability, but don't respect that life for viability. In other words, she's telling us that these lines make no difference. They were dealing with the same entity, the same small human being, simply going through different phases. So it makes no sense to be speaking of 15 weeks, seven weeks. Now, my sense, Richard, is that when the conservative judges in the states, and federal judges confronting challenges to those laws of the pro-life states,

when they're faced with that question, I think the most natural reaction will be to reach out to Justice Alito's opinion in Dobbs. We sort of puts the pieces in place for the judges to put them together and think through them. And at that moment, the judges may be induced to speak the words that the dissent. centers in Roe never spoke when they were given those, that marvelous grief from the lawyers from Texas. In the words that the conservative majority, in this case, consciously omitted saying, steered around saying

about the human standing of that child in the womb. The judges confronting those challenges to the laws in the pro-life states will find themselves, they'll find that they will have to be speaking those. words in order to explain their position. So I find that this kind of, yeah, the interesting, interesting turn of history here, but also I think in the, as you suggest, pushing it into the pro-choice states, into the blue states, you know, opinion there is not as monolithic as we think. I saw some recent surveys saying that 72% of the public, you know, opinion, there is not as monolithic. I've

some recent surveys saying that 72% of the public in one sample were willing to support this restraint or restriction of abortion at 15 weeks, the kind of provision that was sustained in the case for Mississippi. Well, they may also have our own born-alive infant's protection act to protect the life of the child who survives. Now, that is still the most disarming, most modest bill you could bring forth. We could bring that forth in the blue states. And you may find a kind of crack in the monolith of pro-abortion of those states. Going back, you said, you know, so pro-life states or states are more inclined to protect,

offer protections to the unborn, that those laws will be challenged immediately. Talk about the nature of those challenges. How will they be challenged? Well, simply to say that this is too draconian, what's the ground in which you would offer protection for the child at that moment? The argument would be this is simply an imposition of religious conviction behind this information. And even one Gerard Baker in the Wall Street Journal who was really pro-life in his. dispositions remarked on these statutes protecting barring abortion early in pregnancy. He said that some of them were too draconian.

Why would somebody like that regard to as draconian, if not that people have talked themselves into the position that somehow it makes a difference, that the offspring of the womb has reached the point where it's more recognizable with all the features, the toes. squinting the fingers that we identify with human beings as we know them where they're fully formed. And somehow abortions earlier that just don't have the same kind of significance in removing something we would recognize as a human being. So we're going to hear some kind of version of that somehow it's too draconian for reasons we cannot quite explain. that after all, the, oh, look, the Supreme, the defenders, the people who have given us this doctrine of conservative jurisprudence have argued to us that we, the federal judges can't make moral judgments about when human life begins. This is, these are matters of value judgments for people in the separate states.

We're not sending the issue back to the states on the premise. There is a human life here. And we're inviting you to consider how you would reconcile the taking of this human life with your other laws and homicide, the grounds you demand in the other case. So let's say it is not being sent back to the states. And we're saying there's no central truth here that we're declaring or putting in place as the predicate of the situation now. It's a matter of you making value judgments. So the opponent would say, oh, this is simply a matter of your opinions. So now I thought I had a constitutional right.

And you're telling me that I'm losing it as I move from one state to another. And I lose it because 51% of the people around me have a different opinion or belief about when life begins. So the grounds in which we've sent the matter back to the states sort of invites those kinds of challenge. They could be met only by someone actually stepping up and speaking that inescapable truth, that even the conservative majority has tried to be careful not to speak. You have written that you wanted an opinion, and I think I've been articulating it in this interview, an opinion from the court that protected human life from the moment of conception as a constitutional matter.

thus prohibiting abortion nationally. What's your constitutional authority for that judgment? Well, that's not exactly how I would put it. I didn't expect that to happen. But once you're clear that we're dealing with a human life, well, then, of course, the 14th Amendment kicks in for the Congress and the federal courts to, So make judgments here when the protections of the law are removed from a whole class of human beings,

this case, unborn children, human beings. We saw this at work in the 40s, 50s to the 60s as the federal courts worked themselves through the coils of federalism to explain finally how the federal government could be, and Congress could be more directly involved in protecting black people in the South when those particular. protections of law will withdraw. So, get, no, get, Richard, I wouldn't think the court would be in position to argue that outright. A number of us have been arguing for years now, for 40 years, some of us, that it's quite open to Congress under the 14th Amendment to recognize, after all, but do you live with the human life? Once you deal with, is that you're dealing with the human life.

The laws of homicide have ever been indifferent to the question of, is it height, weight, how tall it is? The killing of an older man cannot be a worse homicide than the killing of a small child. But those things are in place. You say, well, what is your problem now? If you're creating a virtual license to take life without rendering a justification in the case of small human beings in the womb, you are evidently withdrawing the protections of law from a whole class of human beings. Now, what is it? I think that it's so unfathomable people.

I've tended to use that line from Henry James to say that some of our friends have made themselves victims of a perplexity from which a single spark of direct perception could have spared. The 14th Amendment, you know, many have argued that person in that amendment was not, did not incorporate. the unborn. And so a fear that it would be an activist move by a federal judiciary that would further inflame opinion. And, you know, the, the move would be, you know, to allow it to be settled in the states. It seems to me that it may not be settled in the states. It may be settled in the Congress, in which case arguments arguing for this broader understanding of person and the 14th Amendment would inevitably come to the fore. Well, I think it is going to move to Congress.

But look, this matter of person, so we have people arguing, we'll do those protections of the Constitution, extend to women because, and just men, of course they could take it. they extended to women. When we're talking about those beings were the barriers of rights, those are human beings.

You don't shift the labels of but they're calling the persons. That's the distraction here. It says nothing about people in wheelchairs or we assume that they're not somehow outside the protections of

the Constitution. The presumption must be that all those provisions in the Constitution speaking of rights are speaking about those beings who can be the bearers of rights. And those are human beings. I think the burden would lie on the other side. But getting to this back to the matter of Congress, it was the court with Roe v. Wade that suddenly made abortion the business of the federal government.

and poisoned our politics. Now, you'd say, well, now we've returned to the matter to the states, but abortion is still the business, it is capably the business of the national government. Now, before Rovers v. Wade, of course, we were having federal aid to hospitals, major and minor. That aid goes on. We do not raise the question of whether any conditions should be attached to that aid,

either to promote abortions, to discourage abortions, to provide protections of conscience for doctors and lawyers who wish to become complicit in abortion. The decision adopts. Renders gives us nothing that governs those judgments. Those judgments are still there to be made. So it's still open to Congress and the executive in the instruments that come under their hands

to use those instruments to promote. abortions, improve abortions, sustain them in the District of Columbia or military and diplomatic outposts abroad in territories of the United States. So it is not, I think that people will say,

aha, finally, we return the matter to the states. Happily, we can wash our hands at this matter. We don't have to think of this anymore in the federal government. But this is like the tar baby. No, you can't let go of it. It is there. it comes back in many ways.

And one way or another, you're going to have to be making these judgments on whether the federal authority is going to, the federal funding is going to be used to approve abortions, discourage them, sustain them. As I'm listening to you, I mean, I think of the disputes who just mentioned at the federal level, spending disputes, disputes over religious freedom, religious conscience, those, of course, can be protected by congressional. statute should be protected. But what I hear you, you know, I'm also hearing you, you seem to be reflecting Lincoln's judgment. We're either going to become all slave or all free. Lincoln said, is that sort of your version, what you think about the idea of returning abortion policy to the states? We really can't live in a country with 27 states with protections and, you know, the other 23 without. Well, no, we could. The difference in Lincoln's time was that the Supreme Court was establishing the president that black people have no rights that whites were obliged to respect.

And if there is a right not to be dispossessed of my property, would I enter into a territory? That will be extended finally to this. If it's a constitutional right, it should be binding on the states as well. But here we have something quite different. But I do think, think that the, well, first of all, it shows a kind of disconnect between the pro-life movement and what conservative jurisprudence has been offering all those years. You know, people were drawn to Washington in the worst weather that Washington serves up in January for the March to Life. At times, the pictures were pictures of babies who were being poisoned.

They concerned among that crowd marching there. with the dismembering or poisoning of babies. No one was carrying a sign saying, ah, the real villainy this moment was the court has over the name. It's moved beyond this rightful jurisdiction. So we're faced with the situation that should be now. We remove the act of abortion as a constitution right. But abortions will thrive massively.

We've performed in massive numbers still in the blue states, in California, Illinois, but now with even fewer restrictions. New York before, versus Wade, will have started to ease its laws to allow abortions. But now, after 50 years of this,

abortion tourism. Yeah, that people have talked themselves not only yet, it's a regrettable public choice, but it's a public good. It should be sustained. And we should give vouchers to women coming in from other states who can't get people.

It's now seen as a public good. So it's flourishing. And my concern now is that when the court brought it back to the states on these terms, we'd say, well, where is the dynamism moving? I think the pro-life movement is going to show real energy as it has. What has brought us to this point is precisely the fact that the public were not persuaded. Look, 10 years after Brown versus Board was decided on racial segregation in schools. Ten years after that, we're able to have the Civil Rights Act of 1964 to ban racial discrimination in those private businesses open to transactions with the public.

And this is here, but 49 years since Roe v. Wade was decided there has not been any kind of consensus of that kind. The country has been sharply divided. The people who thought that there was something wrong about this have not been dislodged. from that conviction. So now we have this situation. We say the court has sent it back. We declare no truth about this matter. The separate states are free to sort of license abortion to highest levels.

As you say, I don't give up the possibility of the pro-life movement. Even in the blue states can start having its effect. But you look at the whole thing, and my concern is what has been planted in this decision? That imparts a pro-life movement to this matter. You send it back to the state saying, as Justice Kavanaugh says, we cannot tell you when human life begins. That's just a patent forso. There's something strange about a jurisprudence that takes as a grounded point in that way,

but must be as a forcum. Let me, a couple of things. I do think that the Alito opinion in pulling down, one of the major progressive constitutional milestones performs an incredible work for the country. And the way he wrote about it, the dishonest arguments made on behalf of Roe by her counsel in that opinion, trying to appeal to the common law historically, thus distorting the record and being willing to do whatever it took to get that opinion in 1973. I thought that was, I mean, just he held it up to withering ridicule and scorn. I thought that was necessary and good.

I also thought in the opinion it's sort of like, well, what's the first step we can take here in terms of what we have to do first is just cabin and collar, substantive due process jurisprudence? And I thought Alito did that opinion, in that opinion, he did it marvelously well and just showing how limited this should actually. be and it shouldn't really be able to do that much. And he sets the stage for a new way of thinking about these claims that's much more favorable to a, you know, restrained jurisprudential model. And I, so I, and I think that's, you know, in a way he is returning the Constitution to a more fixed understanding and also returning things back to the people in a Republican sense. And it will be up to the people now, either in Congress or in the States, to argue affirmatively, as you are saying, which I agree with your natural law analysis. What do you make of that?

I think there was just profoundly important opinion. I think the work that Sam Alito did was just formidable in this smithling heavy blackman's opinion brick by brick. But also, as you point out, pointing out. the false history that had been incorporated in the framing of that position. But look, looking at the record of the common law or the major move in the United States, the surge of move read by the medical profession in the mid-19th century, to strengthen the laws on abortionists. It's an oppressive list.

But if you go back to the premise that we don't. don't know when human life begins, and it's all a value, judgment. We should not have been astonished that the people on the other side have looked at that opinion and said, oh, all you have given us is a record of what people in an earlier day believed about abortion. It could have made a profound difference if we said what this record reveals is an understanding, taking hold amplified by embryology that we are dealing

with nothing less than a human life that's been human from its first moments. That is what the record reveals. Not simply a catalog of what people in an early day believed about this matter. See, I think it affects things

at every moment of that way, which is why so many people in the side just dismissed that impressive historical record about the reed of laws barring abortion. Justice Thomas's concurring opinion, he says, quote, the court's substantive due process jurisprudence has caused great harm to the country, end quote. I know you agree with that statement.

He makes the argument, you know, perhaps a lot of prior precedence that have come under substantive due process, like Griswold, like Oberger, like Lawrence v. Texas, the proper way for those to be considered would be under Privileges and Immunities Clause of the 14th Amendment to see if they actually should be protected rights. What did you make about Justice Thomas' opinion?

Well, I think he's flayed this too long. As I say, substantive due process are us. I think it's a serious. The great Thomas Cooley, there's commentaries on the Constitution. due process clause was carrying with it now, all the great principles, the constitutional principles that we associate with the natural law. Take a look at this difference, for example. Roe versus weight. Can you see Richard the difference between these two different paths for judging

that issue? You could say, ah, there's nothing in the Constitution about abortion. Therefore, Or Wurici is under due process and according something substantive. The lawyers for Texas, this is an alternative path said, we can show you the ground, an embryology, woven with principal reasoning, by which we show you that those laws in Texas were justified in casting protections of law around these on-border. We don't have to talk about substantive due process. look the justice has been challenged

on that very point they say the decisions on grizzan and contraception and interracial marriage of course the conservative majority has taken the line that these become fundamental

only because they are rooted in our tradition and the other side says, well, take a look at the very standard you put forth. Conchaception wasn't rude about tradition. It was, in fact, outlawed a number of states at the time Griswold came down. There's still states when Loving v. Virginia came out on interracial marriage. Well, there's still states that barred marriage across racial lines.

If you take that line, you really leave yourself open to those people who say everything out of your very terms, the very terms of your argument, what you put forth. Yes, all those decisions still are open to challenge. As opposed to saying, we think there's a compelling reason to explain why it was wrong to bar marriage across racial lines. A compelling reason to explain why someone should be protected from a policy of compulsory sterilization in a skinner case in Oklahoma or why people may justify in having access to contraception. That's a different way of doing it. But it's a matter of reaching judgments about why these early decisions were justified,

as opposed to saying, oh, no, it wasn't in the list of things contained in the Constitution. Look, let me please you one other test if you were open to it. Remember Brown versus Board the very same day that Brown, the companion case for Brown v. Board, on segregation of schools, was Bowling v. Scha. segregation in the District of Columbia. Well, when the court did Brown v. Board, as you remember, they invoked the Equal Protection Clause of the Constitution. When it turned to the District of Columbia, they could have evoked the Equal Protection Clause because the District of Columbia is not a state.

It doesn't come under the due process, under the Equal Protection Clause. So what do they call? The due process clause. Now, I can give you a good argument, so why that is a fit argument. in this case. But I am tempted now to raise the question with Justice Thomas when I see him again. Do you think that decision in Boeing v. Sharp on racial segregation gave us another one of those instances of the dreaded substantive due process. So the question substantive due process and privileges and immunities?

I mean, that's what I took Justice Thompson to be saying. That's a different route of analysis that he would put these cases through. Well, you know, you, I wrote a book once called Beyond the Constitution containing a chapter of life among the clauses where you'd see judges utterly agreeing about the ground of the judgment saying why you can't keep indigent people out of California. But they're arguing fiercely over which clause in the Constitution does the work. And what they failed to see was that the underlying structure of their moral arguments was exactly the same. They're trying to explain why it was not justified to turn people away from the state simply because they were poor, not that they were fleeing indictment or could form trials, not because they're carrying contagion. We explain the ground, explain why it may be wrongful to turn the way because they are poor.

Now, you'll find that if you look at these matters. an argument for equal protection can be recast as a matter of due process. You find almost any of these arguments can be refitted to any clause. Yes, they can be refitted to the privileges and immunity clause, but as commentators have pointed out, the privilege and immunities cause simply refer to the same essential liberties. Why are you justified in restraining the freedom of this people to move to another state to have...

to have access to higher education and so on. It's going to be, no matter what you call it, whether you use this clause or that clause, it's going to come down to the same thing. You can still have to explain why it is that people have a right to have access to the surgery, why it be unjustified to bar that right to them. Or on the other hand, why the unborn child would have a claim to the protection of law, why it be unwarranted to withhold that protection. So, again, my sense, if you, some of these points,

you may use the letters of clause on letters of mark and reprisal. You can do, almost any of these clauses can be made to fit. But, look, this is we, even if we didn't have the Equal Protection Clause in the Constitution. It's just a deep principle of the law that you treat like cases in an equal way. That's a deep principle for law. The logic of the equal protection clause is there. I mean, look, John Quincy Adams said that right to petition the government is simply implicit in the idea of a free government. It would be there even if that right had not been mentioned in the First Amendment.

It would be there even if there were not. First Amendment. It would be there even if there were no Constitution. So in all these things, I think, you know me, Richard, you know, if you go to a dentist, you'll give you root canal. You come to me and I give you natural law. I question, question for you, on the dissenting opinion. What struck you about the descending opinion, the last ditch effort to defend Rowan Casey?

What was remarkable is that the only, the persons who are bearers of interest, people have stake in the outcome, are the people who are pregnant or favorably. What is left out of the scheme is the child who's given no weight or standing in the whole system. It's rather like Bill Clinton, when he vetoed the bill on partial birth abortion

and expressed sympathy for the woman who was barred from having that surgery when she thought she had need for it, but had nothing to say about the child whose head was being crushed and the brain sucked out and removed from the body of the mother. The remarkable thing is, in that opinion, that there's no recognition at all that we're dealing in the case of an unborn child. with another life, a human life that is part of the equation here. Of course, the case, it opened, though, even a bizarre way, with Justice Breyer is saying, according to the court now, a woman has no right to abortion from the earliest point in the pregnancy. But, of course, that's exactly what the court avoided saying.

The court, of course she still may have access to an abortion for the earliest points in the pregnancy. if that is provided in the separate states. Justice Alito and his colleagues were doing nothing to deprive women of that right to divorce early in the pregnancy. That all would be put back into the separate states. So again, it was that opinion, Justice Barris sounded like a messenger coming in out of season from another galaxy. It's as though it made very little contact

with the substance of the argument that it was ostensibly resistant. Hadley, thank you so much for joining us to discuss the Dobbs opinion and the future of abortion jurisprudence in America. Thank you so much. That'll do it for today's episode. Thank you for listening to the Saturday edition

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