www.firstthings.com/ftissues/ft0301/articles/schlueter_bork.html
Nathan Schlueter Readers of First Things should by now be wellacquainted with the heated n ational debatein part inspired by these very pagesover the role and legi timacy of the modern Supreme Court, armed with the power of judicial rev iew, in a country that proclaims itself to be selfgoverning. Under the i nfluence of a progressive jurisprudence the modern Court has issued cont roversial and innovative rulings on topics ranging from criminal due pro cess to school prayer, rulings that often conflict with both the text an d context of the Constitution, and with the history and traditional prac tices of our nation. But perhaps no issue better illustratesand indeed m agnifiesthis conflict than abortion. Roe v Wade and its progeny not onl y challenge the legitimacy of the Court, with their highly partisan and tendentious reading of the Constitution, they challenge the legitimacy o f the entire government, a government that tolerates, and often even enc ourages, the mass destruction of those human beings who are most innocen t and defenseless. It is surprising, therefore, that on this most central constitutional and moral issue a preponderance of prolife advocates and legal scholars con tinually misinterpret the Constitution. According to them, a proper read ing of the Constitution would reject the concept of a privacy right to a bortion, and thus return the nation to the preRoe status quo in which th e decision of when, whether, and how to regulate abortion was left to th e states. In offering this restoration interpretation, they ignore or re ject the proper interpretation, which would extend the protections of th e Fourteenth Amendment to unborn persons. This is what I will call in th is essay the unborn person interpretation. They continue to do this desp ite the fact that both the majority in Roe and the appellants to the cas e conceded that if the personhood of the unborn could be established, th e appellants case, of course, collapses, for the fetus right to life wou ld then be guaranteed specifically by the Amendment. To gauge the pervasiveness of the restoration interpretation among life a dvocates, one need only consult these pages. Fortyfive leading prolife a dvocates, including Gary Bauer of the Family Research Council, James Dob son of Focus on the Family, Clarke Forsythe of Americans United for Life , Wanda Franz of the National Right to Life Committee, and Ralph Reed of the Christian Coalition, signed a much heralded joint Statement of ProL ife Principle and Concern published in First Things in 1996 in which the primary legal complaint was made that Roe wounded American democracy by removing the issue of abortion from democratic concern. The statement s uggested two legal remedies: first, the Supreme Court could reverse Roe, returning the issue to the states; second, the nation could pass a cons titutional amendment that would extend Fifth and Fourteenth Amendment du e process protection to unborn persons. The statement does not even hint at the possibility of a Supreme Court ruling that would extend due proc ess and equal protection to unborn persons. The First Things statement s eems to reflect the unanimous opinion of those Justices on the Supreme C ourt who have urged reversing Roe, not one of whom has attempted to make or even respond in their opinions to the unborn person interpretation. However wellintentioned, the arguments of the restoration advocates are u sually grounded in an epistemological skepticism that is alien to normal constitutional interpretation and harmful to the political morality on which free government is based. While I dont object to a constitutional amendment that would extend special protection to unborn personsespecial ly since such an amendment would presumably lodge protection for the unb orn beyond the discretion of partisan courts, and also dispose of any po tential problems with respect to state actionsuch an amendment is consti tutionally superfluous. The issue of protecting the basic rights of pers ons from hostile or indifferent state governments was constitutionally r esolved almost one hundred and fifty years ago in the Fourteenth Amendme nt, purchased with the blood of hundreds of thousands of American lives in the awful crucible of the Civil War. The constitutional debate over a bortion, then, is ultimately a rehearsal of the very same questions that shook the nation during the Civil War. To see why the restoration argument, while certainly more honest and lega lly plausible than the opinion in Roe v Wade, is both constitutionally flawed and politically problematic, we must first consider the arguments that have been made on its behalf. The core of the restoration argument consists of an attack on the contention that the right of a woman to te rminate her pregnancy is a personal privacy right protected by the Const itution. Such a right isto use the words of the Courtneither implicit in the concept of ordered liberty, nor is it a principle of justice so roo ted in the traditions and conscience of our people as to be ranked funda mental. To the contrary, there is a strong historical and legal traditio n in America condemning and prohibiting abortion as a violation of the r ights of the unborn. Moreover, the alleged privacy protected in Roe diff ers in kind from the other privacy precedents insofar as the right neces sarily affects the interests of another human life, the fetus, and insof ar as the abortion procedure has a decidedly public expression. But it leaves out of t he equation the paramount question of the status of the unborn child. Th e Justices write as if this question can be ignored or constitutes merel y a value judgment about which reasonable people can disagree.
Some societies have considered new born children not yet human, or the incompetent elderly no longer so. Bu t if the status of the unborn child is merely a value judgment, then the re is at least a plausible argument that the states have no right prohib iting abortion, especially when one considers the considerable burden an unexpected, unwanted, or dangerous pregnancy can place on a woman. Inde ed, Justice Scalias arguments have a frightening moral and epistemologic al agnosticism at their center. The states may, if they wish, permit abortion on demand, but the Constit ution does not require them to do so. The permissibility of abortion, a nd the limitations upon it, are to be resolved like most important ques tions in our democracy: by citizens trying to persuade one another and then voting. As the Court acknowledges, Where reasonable people can dis agree the government can adopt one position or the other. By making the determination of human life a value judgment, Justice Scali a forecloses the possibility that any scientific proof or rational demon stration can establish that an unborn child is a human being. Indeed, he ultimately forecloses the possibility that there can be any rational di scussion of the matter at all, insofar as values by their very nature ar e subjectively determined. Taken to an extreme, as Justice Scalias legal positivism in this matter seems to do, democracy becomes the simple exe rcise whereby the powerful define for themselves their own concept of ex istence, of meaning, of the universe, and the mystery of life, to use th e famous words of the majority opinion in the Casey decision. In such a universe, constitutional government is superfluous.
is no t a man, why in that case, he who is a man may, as a matter of selfgover nment, do just as he pleases with him. But if the Negro is a man, is it not to that extent a total destruction of selfgovernment to say that he too shall not govern himself? It cannot be too strongly emphasized that whether or not an unborn child is a human being is the critical question in this debate, and the questi on was definitively answered decades ago. Whatever might be said for an earlier time, today there can be no scientific disagreement as to the bi ological beginning of human life. Embryology, fetology, and medical scie nce all attest to the basic facts of human growth and development, and m edical textbooks for decades have declared that distinct a...
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