An anchor of understanding
Evaluating the future of Roe v. Wade in U.S. courtrooms and American hearts
As the U.S. Supreme Court prepares to hear oral arguments regarding a Mississippi pro-life law, hopes for an overturn of Roe v. Wade are higher than they’ve been since before the cruel surprise of the 1992 Casey decision: In Casey, a supposedly pro-life court maintained and even strengthened the Roe regime. In the edited and tightened interview that follows, Hadley Arkes offers perspective from his decades in the pro-life movement, which included designing the bill that became the Born-Alive Infants Protection Act of 2002.
Arkes, born in 1940, maintains a connection with Amherst College, where he began teaching in 1966. He is the founder and director of the James Wilson Institute on Natural Rights and the American Founding. Wilson, one of only six signers of both the Declaration of Independence and the Constitution, said in 1790, “With consistency, beautiful and undeviating, human life, from its commencement to its close, is protected by the common law.”
What’s the likelihood of the Supreme Court overturning Roe v. Wade? I hope the justices will, but John Roberts seems very reluctant. He knows they’ll make themselves the focus of a political storm, but there’s no getting away from that, so I think they’re saying, “We’re open for business now.”
Which means? You take action in this case or that case where people can look at it and say, “Well, that looks sensible to me.”
Bit by bit rather than a Roe reversal? I took John Roberts to be a solid vote in opposition to abortion. In the Whole Woman’s Health case the court overturned a law requiring access to local hospitals, and he was in the minority. Then, four years later, he was willing to honor that decision as a matter of stare decisis. He’s clearly reluctant to take on Roe, and if he gets even one more ally—Brett Kavanaugh or Neil Gorsuch, or even Amy Barrett, whom I can see being quite cautious about this.
So we shouldn’t let our hopes get high? I would think that Roberts wants to go incrementally and simply sustain something. And yet, on the other hand, my sense of it is that they understand that abortion has been the central poisoning ingredient in our politics and our law. It’s disfigured so much.
Heartbeat bills make the stakes clear. To approve a heartbeat bill would be virtually to overrule Roe, because you’re saying you can establish the beating of the heart at just around the time that a woman discovers she’s pregnant. So to declare that as the place at which states may act to bar any abortions is virtually to get rid of abortion in many states. But there are some states in which it won’t matter at all, of course.
Comparing the Dred Scott slavery decision in 1857 and Roe v. Wade in 1973: The parallel is not just that in both cases victims are enslaved or killed, but also that slavery poisoned politics from 1830 to 1860 and abortion has poisoned our politics over the past four decades. The slavery/abortion parallel is that you are moving a whole class of human beings from the class of rights-bearing beings simply by changing the description. “Oh, that’s not a human being, it’s a black person.” “Oh, that’s not a human being, it’s a fetus.” You’ve just shifted the name. That’s why there’s nothing as important as the heartbeat bill, because that would have a deep effect, and it would really put the question to people even in pro-abortion states. … People with pricey educations don’t understand that as soon as your mother conceived, that was you. You didn’t become a different person as you got bigger. The characteristics you have genetically were formed at that first moment.
Are people with pricey educations really ignorant? Or they’ve made a vow of ignorance, that these things are becoming so important politically to them that they’re willing to black out the information that could call it into question. But I appreciate that so many people have remained pro-life amid the deluge.
Is another parallel to slavery that the South had a lot of anti-slavery sentiment early in the 19th century? A hardening grew after 1830, and we’re seeing a similar hardening now concerning abortion. They think there’s something morally right about the freedom to dispose of that child, and anyone who stands in the way just has to be overridden: “If we have the power, we’ll do it.” A modest measure may be good at constricting abortions, but it does not displace the corrupting premises that have been absorbed by so many people. Let’s just assume that we bring people into a center where we play “My Melancholy Baby”—“come to me, my melancholy baby”—and it just so happens that 90 percent of the people hearing that tune decide not to have the abortion. That would be a thing to be appreciated, but we’ve left undisturbed the deep conviction that “I do have this right to destroy a very small life if it suits my convenience.”
Abraham Lincoln in his Cooper Union speech in 1860 called for “a national policy in regard to the institution of slavery that acknowledges and deals with that institution as being wrong.” That’s what we would like—substitute abortion in that sentence for slavery. But you’re saying, and I agree, that’s probably unlikely. Yes, Lincoln complained that he couldn’t get that.
Didn’t Confederate Vice President Alexander Stephens show the harder position in 1861 in his “Cornerstone” speech? Stephens argued that the Southerners at the Constitutional Convention were as bad as the Northerners, because the Southerners also thought all men are created equal. He said the Southerners then were ashamed of slavery and understood it as not good for them. They wanted to get rid of it. Some Democrats back in the mid-70s thought that way about abortion. Now we don’t even have that.
Let’s compare Roe v. Wade with Plessy v. Ferguson, the infamous 1896 decision upholding the “separate but equal” doctrine that allowed for segregation in railroad cars. Justice John Harlan, a former slaveholder, dissented from the majority Supreme Court decision. Why? Sometimes he talked about equality and sometimes about restraining the liberty of black people in their freedom to travel. But I think we could show that the world of race discrimination is a world of assuming that race exerts a kind of deterministic control on the conduct of any person—so if we know something about a person’s race, we can infer whether the person is likely to improve or degrade the community. If race determines our conduct, none of us is responsible for his own action. So if race discrimination isn’t wrong, then nothing is wrong. Harlan came closest of anybody in saying that it was simply wrong in principle to discriminate.
But Harlan didn’t. Even in Brown v. Board of Education, which in 1954 ruled school segregation unconstitutional, the Supreme Court did not take that principled position. Instead, it used some social science studies to show that segregation hurt black children by making them feel inferior. One person involved in the civil rights litigation asked, “If we separate the students in schools on the basis of race, and their performance goes up, their reading scores go up, there’s no sign that segregation has impaired the performance of the students—can segregation still be wrong?” The court did not state that there’s something in principle wrong with racial segregation.
Chief Justice Earl Warren, as I understand it, essentially said, “Hey, we’re not overturning Plessy—that was about transportation; this is about schools.” Maybe he calculated politically to go this far but no further? I think so. We don’t have the clear expression of the principle, as when Lincoln said, “I reject slavery. My rejection of it is quite indifferent to the question of whether I am a master or a slave. As I would not be a slave, I would not be a master.”
So Lincoln emphasized the principle, but his fallback position was containment—restricting slavery to existing states that had it, not letting it expand into territories. I’m concerned about abortion overall and also its expansion via telemed abortions and chemical abortion pills. We’ve scaled down the number of abortions from 1.6 million to about 860,000. Will that progress continue? We’ve made progress, but the point of apprehension for me is that the banner of transgenderism, same-sex marriage, and the unquestioned right to abortion prevails in the centers of power in this country—in media, in universities, and now we find the penetration of that understanding into corporations. How have we got into this position where that sense of things is so widespread that it has closed off all alternate positions in universities, in media, and now even in corporations, where we used to expect some island of sanity against the passions that were fashionably running through the academy? Tell me something hopeful. What’s hopeful?
Total number of abortions, still horrendous, has declined by about 45 percent since the 1990s. But the acceptance of abortion as a good seems more entrenched than ever on the left.
LGBT advocacy is stronger, but the pro-life position is holding its own. Yes, despite all the power exerted by the pro-abortion lobby, including media power and the power to exclude criticism, the pro-life argument has sustained. In part, it’s because of the truth of the matter. When women become pregnant, they know exactly what they’re carrying. An anchor of understanding will not be effaced.
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