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Living in a House Divided: A Lincolnian Ethos after Dobbs

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  Bioethics in Law & Culture                                                                                                                              Spring   2022     vol. 5  issue  2

J. David Franks, Ph.D.

Chairman

Massachusetts Citizens for Life

With the leak to Politico[1] of a draft majority opinion in Dobbs v. Jackson Women’s Health authored by Justice Samuel Alito, which would reverse Roe v. Wade and Planned Parenthood v. Casey outright (sending the question of abortion regulation back to the states to decide upon), there seems to be some basis for believing that the almost half-century-old regime of a constitutionalized right to abortion is coming to an end.

 

Where would that leave the American republic? Where would that leave the pro-life movement?

 

There has been a noisy backlash from abortion supporters in the aftermath of the leaked opinion, studiously avoiding substantive engagement with Alito’s rock-ribbed argumentation, in which clichéd caricatures of pro-lifers and their beliefs have been vigorously trotted out, as if there could be no reasonable basis for wanting to have the legal status of abortion argued state by state. That does not augur well if one hopes to see America enter a new era of democratic deliberation. Both sides are guilty of demonizing the other, not crediting opponents with acting in good faith—but is one side or the other more supercilious? However it may be, democracies depend upon checking the heat of one’s righteousness, and republics depend upon institutions capable of checking each other. For each citizen, the paramount thing is to think—and slogans, clichés, and pat arguments (whether from pro-lifers or pro-choicers) make thinking impossible.[2] An honest discussion requires both sides acknowledging the strong points of the other.

 

The central component of this contest, what renders it so heated and intractable, is the confrontation between two urgent and supremely consequential claims: a woman’s liberty and a baby’s life. The civic sine qua non here is for everyone to take each of these claims to heart in ever greater measure, to look both in the eyes, as it were, and not to mitigate their intensity.

 

In this light, President Biden’s statement on the leak dismays by typifying a peculiar and astonishing fact about the pro-choice response to the possibility of the overturning of Roe and Casey: a complete inadvertence on the part of abortion supporters to the fact that another human life is involved in the procedure—even though that other life is precisely the target of the procedure.[3]

 

First, my administration argued strongly before the Court in defense of Roe v. Wade. We said that Roe is based on “a long line of precedent recognizing ‘the Fourteenth Amendment’s concept of personal liberty’… against government interference with intensely personal decisions.” I believe that a woman’s right to choose is fundamental, Roe has been the law of the land for almost fifty years, and basic fairness and the stability of our law demand that it not be overturned.[4]

 

Pro-lifers call each other to account and are called to account—rightly so—to take the precarious position of women and girls ever more to heart. The incalculable burden of pregnancy and childbirth falls on females; even and especially in intimate life a power differential persists which can be full of menace; women suffer impediments to full social, economic, and political participation. Pro-lifers acknowledge, indeed we point out, that a majority of women feel pressured into abortion—which is why the “pro-choice” label might seem to betray a kind of sub-feminist delusion.[5] That there is a weighty liberty interest in women controlling their reproductive destiny is too patent to be gainsaid. This is one reason the mainstream pro-life movement in no way countenances imposing legal penalties on mothers who undergo abortion.

 

But thinking requires advertence to at least two relevant factors: despite the memes of red-habited, white-wimpled “handmaids” (deploying which is to engage in public deliberation by way of crayons rather than thought), in the normal course of things, pregnancies result from actions expressive of personal liberty: it would be prim not to note that babies follow upon free acts commonly understood to be precisely the kind of act that gives rise to babies.[6] The activist language of “forced pregnancy” would only make sense as a descriptor for a sequela of coercive sexual violence.

 

The other relevant factor is that there is another human life involved. Ignoring a fact does not diminish its reality, and this reality is as weighty as any. As Americans, do we wish to countenance killing as a solution for complex social problems? Silver bullets do what bullets do, so cutting Gordian knots usually yields a body count. If women and girls continue to suffer the ramified effects of misogyny, and they do, then pro-lifers and pro-choicers need to get to work on the thing itself, refusing to feed the scapegoat mechanism that eliminates the innocent rather than grapples with the guilty. Abortion traumatizes a mother,[7] and kills an unborn human: and the whole misogynistic system churns on—a system that is simultaneously one of economic rapacity. What a gift to androcentrism and oligarchy is abortion! Pro-life or pro-choice, we have to wake up to the ideological shell game; we all need to become feminists devoted to an uncompromising responsibility and care.

 

Perhaps it would help both supporters and opponents of abortion to undergo the ongoing personal conversion which makes sustained civic conversation possible if we held up the mirror of the house of America divided over slavery.

 

This essay will take note of the basic points of Justice Alito’s draft. If Roe and Casey are reversed, we will have a repristination of America’s political constitution even as we remain bitterly at odds as a people. How do we conduct democratic deliberation under these conditions? Let us avail ourselves of a historical parallel, when this country was existentially threatened by passionate incommensurabilities, hoping to learn from Abraham Lincoln’s engagement with the Kansas-Nebraska Act and the Dred Scott decision. Might his principles and ethos allow us to craft an American modus vivendi even as our house remains divided?

I. Some Observations on the Leaked Draft

 

Alito opens with a frank acknowledgment of the perduring agonism on this matter: “Abortion presents a profound moral issue on which Americans hold sharply conflicting views.”[8] Then he quickly limns the anti-abortion, pro-abortion, and in-between positions. A democratic republic, federally structured, is meant to manage such agonistics, but in 1973 the Supreme Court constitutionalized a right to abortion, immunizing it from democratic political process. Combined with the expansive “health” exception in Doe v. Bolton, America became one of the most extreme abortion regimes in the world,[9] even though at the time of the decision our states were mostly anti-abortion shading towards an in-between position. It was a radical usurpation by the Court of the people’s prerogative, especially as exercised through the elected branches of government. Alito quotes from Justice Scalia’s dissent in Casey: “The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.”[10]

 

Alito’s historical analysis attempts to ascertain whether this unenumerated right, eventually legitimized by a substantive due process approach to the Fourteenth Amendment (by which Casey tried to supply a less sloppy basis for Roe’s “central holding” that a woman’s right to abortion before viability cannot be regulated in the interests of fetal life),[11] meets the Glucksberg standards of being “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” It is clear that a right to abortion does not survive this analysis. President Biden has emphasized his concern that other socially progressive rights (to contraception, homosexual marriage, etc.) are imperiled by this draft opinion. But Alito insists more than once that there is something different about abortion that means leeway should not be extended it:

The abortion right is also critically different from any other right that this Court has held to fall within the Fourteenth Amendment’s protection of “liberty.” Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called “fetal life” and what the law now before us describes as an “unborn human being.”[12]

 

Alito does not belabor the point about the beginning of human life, which is not an esoteric matter and can be learned from any textbook of human embryology. Beyond that scientific question, there are philosophical, ethical, and political questions about what exactly is owed human life in its earliest stages. “One may disagree with this belief [that abortion kills a human being] (and our decision is not based on any view about when a State should regard prenatal life as having rights or legally cognizable interests), but even Roe and Casey did not question the good faith of abortion opponents.”[13]

 

II. The Fire of Equality

 

Do we believe there to be a basis for civil conversation in our founding creed? “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.”

 

First, a terminological point. “All men are created equal” means “all humans.” Abraham Lincoln recurs to this founding declaration repeatedly, and he is often explicitly arguing that the equality declared here is without exception.

 

For example, one can see this in Lincoln’s quotation of Henry Clay in the last of the seven debates with Stephen Douglas at Alton, Illinois, where Clay’s memory was especially revered among a population of Old Line Whigs.

 

What is the foundation of this appeal to me in Indiana, to liberate the slaves under my care in Kentucky? It is a general declaration in the act announcing to the world the independence of the thirteen American colonies, that all “men are created equal.” Now, as an abstract principle, there is no doubt of the truth of that declaration, and it is desirable in the original construction of society, and in organized societies, to keep it in view as a great fundamental principle. But then I apprehend that in no society that ever did exist, or ever shall be formed, was or can the equality asserted among the members of the human race be practically enforced and carried out. There are portions of it, large portions, women, minors, insane, culprits, transient sojourners, that will always probably remain subject to the government of another portion of the community.[14]

 

Clay notes that “all men are created equal” denotes “the equality asserted among the members of the human race” and includes “women, minors, etc.”

 

It was Lincoln’s conviction that the fundamental postulate of America was that all humans are created equal. He believed that to be the common font of the American identity. Speaking of European immigrants to America not drawn from Britain:

If they look back through this history to trace their connection with those days [America’s founding] by blood, they find they have none, they cannot carry themselves back into that glorious epoch and make themselves feel that they are part of us, but when they look through that old Declaration of Independence, they find that those old men say that “We hold these truths to be self-evident, that all men are created equal,” and then they feel that that moral sentiment taught in that day evidences their relation to those men, that it is the father of all moral principle in them, and that they have a right to claim it as though they were blood of the blood, and flesh of the flesh, of the men who wrote that Declaration, and so they are. That is the electric cord in that Declaration that links the hearts of patriotic and liberty-loving men together…[15]

 

Can we still access that electricity? If not, is that because the current has been dissipated? Or has something gone insensible in us? What could wake us up to the adventure of the American experiment? It is my contention that in this time of national division over abortion and much else, every American must recur to our fundamental principle as a nation, to think constitutionally and originally upon that basis, to renew our common life upon a thing that transcends and can call to judgment our ideological predispositions.

 

On March 6, 1856, two days after the inauguration of the slavery-sympathetic Democrat James Buchanan as the fifteenth president, the Supreme Court issued its judgment in the case of Dred Scott v. Sandford. This ruling declared Congress incompetent to forbid slavery in the territories, as it had done with the Northwest Ordinance of 1877 and the Missouri Compromise of 1820—thus striking at the heart and agenda of the party that filled the vacuum after the collapse of the Whigs: the Republicans, whose primary commitment was to keep slavery from being extended into United States territories. Dred Scott also held that no African-American could ever become a citizen of the United States. It was a directly, and peculiarly, anti-Republican decision. And, indeed, President-elect Buchanan had conspired with certain Supreme Court judges to shape the decision and to whip votes for it. He wanted an expansive ruling that would shut down the political controversy especially fueled by the new Republican Party. In this desire for a silence that follows upon the paralyzing of those who disagree with one, there are echoes of what the plurality authors of Casey had to say:

 

Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution. The Court is not asked to do this very often, having thus addressed the Nation only twice in our lifetime, in the decisions of Brown and Roe. But when the Court does act in this way, its decision requires an equally rare precedential force to counter the inevitable efforts to overturn it and to thwart its implementation.[16]

 

The great controversy in Lincoln’s day was slavery. There is irony in the Casey joint opinion’s claiming that in Roe the Supreme Court was being asked to quell a national controversy. In 1973, “abortion reform,” as an adjunct of population control, was gaining ground in a handful of states, but the great and acrimonious debate over abortion took steam precisely from the Supreme Court’s usurpation of the political process in Roe, in part because those seven justices did not bother to “root” their diktat in the Constitution. Justices O’Connor, Souter, and Kennedy cannot then tell us that Roe, a decision whose logic they themselves are eviscerating in this very joint opinion, and their own worldview presented as the Casey decision must be treated as being bathed in a super-precedential aura talismanically removing them from the democratic judgment and action of each citizen of the United States.

 

Back to the historical parallel: Dred Scott was meant to short circuit the agitation of the Republican Party, which had been formed to resist a new slavery expansionism. Lincoln became acknowledged as the most eloquent defender of Republican Party principles, especially through his debates with Senator Stephen Douglas meant to sway the election of the state representatives and senators composing an Illinois legislature that was due to choose a senator for the seat Douglas occupied at the time (direct election of the senators by the people did not come about until 1913, with the Seventeenth Amendment).

 

In the Lincoln-Republican reading of American history, the Declaration of Independence’s fundamental principle concerning the equality of all humans animates the trajectory of America. Slavery was a fact, a hard-to-unwind fact, which the Constitution countenanced only out of necessity. Lincoln’s claim would be that the Founders could not figure out how to deal with slavery, though recognizing that it contradicts the most profound point of democratic-republican liberty and self-government. Many of those Founders, participating in the First Congress, voted for the Northwest Ordinance which determined how the territory north of the Ohio River, west of the Appalachians, and east of the Mississippi would be governed: slavery was prohibited in these lands. The Founders consoled themselves with the thought that the social fact of slavery would be confined to the southern states where it would eventually die out as manufacturing took hold.

 

Two things changed this calculus: 1) the invention of the cotton gin, which made slavery wildly profitable, and 2) the continued westward expansion of America. When Missouri petitioned for entry into the union as a slave state, the balance of power between slave and free states threatened to become unbalanced. Speaker of the House Henry Clay of Kentucky, Lincoln’s hero and grand champion of the Whigs, brokered the Missouri Compromise, which would govern the rest of the lands obtained from the Louisiana Purchase of 1803. In territory south of the parallel demarcating Missouri’s southern border, new states could choose to come in as slave states; north of 36° 30’, a state could only come in as free. This seemed to maintain the balance of power—until further westward expansion disturbed it again. The slave Republic of Texas joined the union as a slave state in 1845. And then came the Mexican-American War, which was so strongly opposed by Lincoln when he was serving his one term in the House of Representatives. There was worry that Southerners were eager for an imperialistic war in order to gain more land from which to create slave states. In the Mexican Cession of 1850, huge spaces of northern Mexico came under American dominion. What slavery rules would Congress apply to these lands? Slave and free states were at each other’s throats. Henry Clay and Stephen Douglas hammered out the Compromise of 1850, which would allow organization of the Mexican Cession according to a principle of “popular sovereignty”: a petitioning state would be allowed to come in as free or slave as territorial settlers saw fit. The fuse on the Civil War was lit when Douglas sought to apply “popular sovereignty” back upon the lands of the Louisiana Purchase, thereby nullifying the Missouri Compromise, in what became known as the Kansas-Nebraska Act. Douglas introduced his Nebraska bill at the beginning of 1854, and this roused Lincoln back into the political arena. Slavery no longer seemed ready to die out. The “slave power” was threatening to swamp the American Republic. The bill fractured the Whig Party along sectional lines.

 

In this context, the 1856 Dred Scott decision was devastating to those who hoped to hobble slavery. For Lincoln and the newly formed Republicans, the fundamental principle of America was imperiled.[17]

 

Chief Justice Taney, in his opinion in the Dred Scott case, admits that the language of the Declaration is broad enough to include the whole human family, but he and Judge Douglas argue that the authors of that instrument did not intend to include negroes, by the fact that they did not at once, actually place them on an equality with the whites. …[The Founders] did not mean to assert the obvious untruth, that all were then actually enjoying that equality, nor yet, that they were about to confer it immediately upon them. In fact they had no power to confer such a boon. They meant simply to declare the right, so that the enforcement of it might follow as fast as circumstances should permit. They meant to set up a standard maxim for free society, which could be familiar to all, and revered by all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people of all colors everywhere.[18]

 

When Roe was handed down, pro-lifers again felt that the fundamental principle of America was imperiled: if all humans are created equal, then the littlest humans are entitled to have their right to life protected in law. If Dobbs reverses Roe and Casey, then pro-lifers will at least have the chance to make the case in each state that if we are serious about our founding declaration, certain things follow: not least that taking powerless human life is no good basis on which to build social equality. We cannot violate human equality to advance human equality.

 

With slavery, there was a conflict between two of the three primary domains of rights secured by the Due Process Clause of the Fifth Amendment (later replayed in the Fourteenth Amendment), which are related to the three unalienable rights adduced in the Declaration: life, liberty, property. With slavery, the property rights of slaveowners confronted the natural claim to liberty of every slave. With abortion, we have a conflict between life and liberty: the life of the human developing in utero and the liberty of the mother gestating that unique human life.

 

As Lincoln notes, a slave may be “property” according to the then-existing system of slavery, but a slave is different from other property.

[Douglas] contends that whatever community wants slaves has a right to have them. So they have, if it is not a wrong. But if it is a wrong, he cannot say people have a right to do wrong. He says that upon the score of equality, slaves should be allowed to go in a new territory like other property. This is strictly logical if there is no difference between it and other property. If it and other property are equal, his argument is entirely logical.[19]

 

Lincoln resorts to an “originary” thinking, an employment of higher-law logic and moral inquiry that at the same time attends to the bare human life at hand, in order to think through the constitutional and political issues of the day. The text of the Constitution must be respected (and so Lincoln was no abolitionist), but the dynamism of human equality (itself a higher-law principle attending to the reality of bare human life), which he recognized the Founders as revering, must be allowed to work through the history of the nation.

 

Justice Alito’s logic in his draft resonates with Lincoln’s qualifying of one fundamental right by adverting to who loses out, when he notes that the liberty involved in the right to privacy must take account of the fact that another life is involved in abortion:

 

What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decisions acknowledged: Abortion destroys what those decisions call “potential life” and what the law at issue in this case regards as the life of an “unborn human being.” See Roe at 159 (abortion is “inherently different”); Casey at 852 (abortion is a “unique act”). None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion. They are therefore inapposite. They do not support the right to obtain an abortion, and by the same token, our conclusion that the Constitution does not confer such a right does not undermine them in any way.[20]

 

The American principle of human equality requires both a commitment to the Constitution (prudence, order, and lawfulness are moral requirements of their own) as well as a constant recourse, in a performance of constitutional and originary thinking, to that very principle of the Declaration and its ever more radical implications.

 

Lincoln reminds us that the thing the American citizen must think through again and again is the morality of power.

 

That is the real issue. That is the issue that will continue in this country when these poor tongues of Judge Douglas and myself shall be silent. It is the eternal struggle between these two principles, right and wrong, throughout the world. They are the two principles that have stood face to face from the beginning of time, and will ever continue to struggle. The one is the common right of humanity, and the other is the divine right of kings. It is the same principle in whatever shape it develops itself. It is the same old serpent that says, “You work and toil and earn bread, and I’ll eat it.” No matter in what shape it comes whether from the mouth of a king who seeks to bestride the people of his own nation and live by the fruit of their labor, or from one race of men as an apology for enslaving another race, it is the same tyrannical principle.[21]

 

When women, and especially mothers, are at a disadvantage, Americans must attend to that and seek to remedy whatever wrongs are involved—personally and, where possible, through the machinery of laws. And Americans must likewise attend to the barest human life, the human developing in the womb. We must care for both mother and child, and interrogate, say, a cruel oligarchic regime that leaves both desperately unprovisioned and sets one against the other. We must make no exceptions, soothing to our partisan itches, in our responsibility for each fellow human: “I should like to know if taking this old Declaration of Independence, which declares that all men are equal upon principle, and making exceptions to it, where will it stop? If one man says it does not mean a negro, why may not another say it does not mean some other man?”[22]

 

Supporters and opponents of abortion must interrogate each other and each themselves as to the tendency of their political policy. This includes interrogation of our partisan commitments. What evils does support for either the Democratic or Republican Party implicate us in? Both parties do implicate us in evil. But what are the moral costs of not being aligned with either party?

 

Before the Civil War, Lincoln tended to think that settling freed slaves in their own colonies was the only practical solution at hand over against continued enslavement. (He grew to see more and more the possibilities of mutual coexistence of the races as the war progressed).

 

How differently the respective courses of the Democratic and Republican parties incidentally bear on the question of forming a will—a public sentiment—for colonization, is easy to see. The Republicans inculcate, with whatever of ability they can, that the negro is a man, that his bondage is cruelly wrong, and that the field of his oppression ought not to be enlarged. The Democrats deny his manhood, deny, or dwarf to insignificance, the wrong of his bondage; so far as possible, crush all sympathy for him, and cultivate and excite hatred and disgust against him; compliment themselves as Union-savers for doing so; and call the indefinite outspreading of his bondage “a sacred right of self-government.”[23]

 

The point here is not to say anything in defense of the original “solution” of remote settlement, but rather to note how Lincoln x-rays the tendencies involved. When it comes to abortion, we must ask ourselves: do we see the humanity of both the woman and the child? Do we take it to heart? How would we take care of both the unborn child and his or her mother? If our political morality were given full realization, what would their lives look like? How about a pregnant young impoverished woman—Hispanic or African-American or Appalachian? How do we want the principle of equal human dignity to take flesh in their lives? What are we willing to do and to sacrifice to realize that vision?

Conclusion

 

Pro-lifers must prepare for a radically transformed social and political situation after Dobbs, in which, presumably, each particular state’s conditions will be decisive.[24] Sixteen states and the District of Columbia have laws that would maintain abortion’s decriminalized status, and twenty-three states have laws that would regulate and restrict abortion.[25] There are a handful of pro-life states whose constitutions have been construed by their highest courts as protecting a right to abortion, so state-constitutional remedies will have to be pursued.[26] A civil argument should be conducted state by state, and pro-lifers should show themselves willing to listen to the profound concerns supporters of abortion have. Even in states where there is a large enough anti-abortion majority, we should always seek to listen, to expose our political positions in the crucible of bearing each other’s burdens. I am convinced that an emphatic embrace of a consistent ethic of life will be essential if we are to win the democratic argument in pro-choice states, but more than that, I am convinced that the consistent ethic of life is the only way to honor the American principle that all humans are created equal.

 

Let us end with Lincoln. Here he quotes Douglas and exposes the zero-sum, oligarchic logic behind his thinking:

 

“In the struggle between the white man and the negro” assumes that there is a struggle, in which either the white man must enslave the negro or the negro must enslave the white. There is no such struggle! It is merely an ingenious falsehood, to degrade and brutalize the negro. Let each let the other alone, and there is no struggle about it. If it was like two wrecked seamen on a narrow plank, when each must push the other off or drown himself, I would push the negro off or a white man either, but it is not; the plank is large enough for both. This good earth is plenty broad enough for white man and negro both, and there is no need of either pushing the other off.[27]

 

We must love both mother and child. We must recognize that the hunger-games mentality abroad in America has been orchestrated by those who would have us believe we must strike at each other in order to stay afloat. The preferential option for the poor must in every case be our option if we are to live out the content of our creed, that all humans are created equal. Let a new American civilization rise no longer bound by the brutal oligarchic contrivances of either major party. But until that pass, let us live peaceably in a house divided, listening as we can to each other, forbearing with one another, blessing when we do not agree, and loving every day.

________________________

[1] https://www.politico.com/news/2022/05/02/supreme-court-abortion-draft-opinion-00029473

[2] We certainly hear in the media and over social media the old chestnut about how pro-lifers only care about life in the womb and not life afterwards. Since pro-lifers support pregnancy resource centers, and other programs which provide ongoing support for mothers, it is a strange charge, presumably bristling with political assumptions. It is not clear that pro-choicers can be identified with such concrete support of women with children. But let’s bracket that. To make their argument stronger than it is usually stated, the criticism is that identification with the Republican Party leads many pro-lifers to vote in a way that undercuts social safety-net provisions. I find this a criticism to take to heart. I have argued and will continue to argue that a more consistent ethic of life approach must be taken up by pro-lifers. The natural law requirement that we care for others (reinforced by the divine law command to love our neighbor) does indeed entail governmental expressions. Of course, such governmental action should not be seen as acquitting us from personal interactions in which we provide care directly.

[3] Hadley Arkes, “The Dobbs Case and the Strains of Prudence,” Human Life Review, 23 September 2021: https://humanlifereview.com/article/dobbs-arkes-summer-21/.

[4] That such a statement comes from a putatively devout Catholic increases the shock: https://www.nbcnewyork.com/news/politics/roe-v-wade-white-house-releases-statement-after-report-on-leaked-scotus-draft-opinion/3672460/.

[5] See, for example, David Reardon, “Only a Minority of Abortions are for Unwanted Pregnancies, New Study,” Charlotte Lozier Institute, 15 April 2021: https://lozierinstitute.org/only-a-minority-of-abortions-are-for-unwanted-pregnancies-new-study/.

[6] The crisis of sexual violence and coercion must not be minimized, and it deserves an all-hands-on-deck social, economic, and political response. But the number of abortions targeting babies conceived by rape is not a relatively large number, accounting for one percent of annual abortions: https://www.usatoday.com/story/news/nation/2019/05/24/rape-and-incest-account-few-abortions-so-why-all-attention/1211175001/. Statutory rape is another matter, but begs the question about the pro-choice lobby’s animus against parental involvement laws even with the provision of a judicial bypass.

[7] Every post-abortive woman is a mother who deserves our special care—and never our judgment.

[8] Justice Samuel Alito, leaked first draft of Dobbs v. Jackson Women’s Health, p. 1: https://www.politico.com/news/2022/05/02/read-justice-alito-initial-abortion-opinion-overturn-roe-v-wade-pdf-00029504. Hereafter, AD.

[9] AD, p. 6 and fn. 15: “Only six countries beside the United States ‘permit[ted] nontherapeutic or elective abortion -on-demand after the twentieth week of gestation.’”

[10] AD, p 6. As Alito notes on p. 13-14: “In interpreting what is meant by the Fourteenth Amendment’s reference to ‘liberty,’ we must guard against the natural human tendency to confuse what that Amendment protects with our own ardent views about the liberty that Americans should enjoy. [Substantive due process]…has sometimes led the Court to usurp authority that the Constitution entrusts to the people’s elected representatives. As the Court cautioned in Glucksberg, ‘we must…exercise the utmost care whenever we are asked to break new ground in this field, lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court.’”

     When an unenumerated right is constitutionalized, a higher-law logic is being deployed: this right I count so essential to personal flourishing, it must be removed from democratic deliberation and action. There is something above the positive law of nations, but it is always tricky identifying what the higher law entails. We must be reticent and humble because even when a progressive employs higher-law reasoning, the tendency is theocratic. We each believe our judgments of both principle and prudence to be correct. There is a question of epistemic debility which political liberalism must never forget. Trumping democratic deliberation and action must be done with supreme circumspection, for blindness here subverts necessary and irreducible agonistics in favor of tyrannical monopoly of opinion.

     And such covert tyrannizing is all the more corrosive if operating from the Supreme Court. When raw ideological self-assertion displays itself unmoored from the gold standard of the constitutional text, the entire republican system courts a crisis of legitimacy. The political vigor of the people suffers, scandalized by the Bermuda Triangle weirdness of “ad hoc nullifications” of even the most reasonable abortion regulations. All the instruments go haywire when abortion is involved: “The Court’s abortion cases have diluted the strict standard for facial constitutional challenges. They have ignored the Court’s third-party standing doctrine. They have disregarded standard res judicata principles. They have flouted the ordinary rules on the severability of unconstitutional provisions, as well as the rule that statutes should be read where possible to avoid unconstitutionality. And they have distorted First Amendment doctrines” (p. 59). There is no greater reliance interest the Supreme Court could safeguard than the people’s expectation that a justice will not play a king.

[11] I predict that should Dobbs be decided more or less as the leak indicates, that at least one dissent will seek to provide a third basis for a constitutionalized right to abortion: the Equal Protection Clause of the Fourteenth Amendment, as Alito himself intimates (AD, p. 10). But what to make of a putative constitutional right that cannot be pinned down securely in the text or logic of the Constitution?

[12] AD, p. 5. Though the nonsensical locution “potential life” as describing a human fetus is not felicitous, at least Roe and Casey do what contemporary pro-choicers do not do: take note of that being which abortion would remove from the mother’s body. This belongs to a larger irony: Roe and Casey do not consider abortion to be an absolute right; pro-abortion activists, however, tend to treat it as absolute: no regulations are tolerated. It is hard to get more radical than Roe-plus-Doe, but the activist “codifications” of Roe in several states after the confirmations of Justices Kavanaugh and Barrett are indeed more radical. This is a pernicious form of American exceptionalism: already Roe and Casey had us out of line with most of Europe when it comes to abortion. But what worlds separate American abortion absolutism and, say, the hedged-in practice of Germany under its Basic Law, which tries to remember how much of a lie it was, the Nazi concept of human life unworthy of life (Lebensunwertes Leben)! America kills too much—all along the line.

[13] AD, p. 29. Here many pro-lifers will feel disappointment. At least, it would have been salutary to have read into the record the science about the beginning of human life. Other pro-lifers would wish that Roe and Casey not only be reversed, sending the question of abortion regulation back to the states, but that the Supreme Court, on the basis of the scientific facts, rule that the unborn human child counts as a “person” under the Fourteenth Amendment. That would constitutionalize the right to life of the unborn, and would work the opposite of what Roe has done for almost fifty years: remove abortion from democratic deliberation and action, but this time with its being impermissible. A pro-lifer does recognize that the unborn human, as innocent human life, deserves the protection of law. But it seems to me that in a democracy such an object of controversy perforce must be hashed out through democratic process. A pro-life inversion of Roe would continue to distort national politics, and would not be secure. There is only one way to reconcile this house divided: by a burning charity and a clarity of thought that convinces state majorities that a preferential option for the most powerless must be made. Truth alone is not enough in a democratic republic: it must always be translated into the flesh and blood of a luminous human life, an existence that reaches out to other existences. The political habit is the perpetual incarnation of an order at all times fed by truth, goodness, and beauty.

[14] A quote from Henry Clay’s “Speech in Richmond, Indiana,” Oct. 1, 1842, by Abraham Lincoln, on p. 270 of The Lincoln-Douglas Debates, The Lincoln Studies Center Edition, eds. Rodney O. Davis and Douglas L. Wilson (Urbana and Chicago: The Knox College Lincoln Studies Center and the University of Illinois Press, 2008). Hereafter, LDD.

[15] From Abraham Lincoln: His Speeches and Writings, ed. Roy P. Basler (Cambridge, Mass.: Da Capo Press, 1946), pp. 401-02. Hereafter, ALSW.

[16] Planned Parenthood v. Casey, pp. 866-67: https://tile.loc.gov/storage-services/service/ll/usrep/usrep505/usrep505833/usrep505833.pdf.

[17] The most efficient and best overview of Abraham Lincoln can be found in Lincoln: A Very Short Introduction by Allen C. Guelzo (Oxford: Oxford University Press, 2009. Two other excellent resources are available from The Great Courses: Guelzo’s “The Life and History of Abraham Lincoln” and David Zarefsky’s “Abraham Lincoln: In His Own Words.”

[18] ALSW, pp. 360-61.

[19] LDD, p. 284.

[20] AD, p. 32.

[21] LDD, pp. 284-85.

[22] ALSW, p. 403.

[23] ALSW, p. 365.

[24] Any survey of the post-Dobbs landscape must make note of the fact that chemical abortion, the “abortion pill,” accounts for more than half of all abortions: https://www.guttmacher.org/article/2022/02/medication-abortion-now-accounts-more-half-all-us-abortions. Pro-abortion activists had made use of pandemic conditions to push through even more deregulation of this abortion method, so that mothers would be allowed to acquire and take these pills without any in-person contact with any medical professional. An underground commerce in these pills will probably arise in states that place substantial restrictions on abortion. Pro-lifers will continue to worry that the use of these pills outside of medical oversight is dangerous. In any case, even in pro-life states, there will have to be an intensive effort to make the abortion-pill reversal protocol widely known and available.

[25] https://www.guttmacher.org/state-policy/explore/abortion-policy-absence-roe and https://www.guttmacher.org/article/2021/10/26-states-are-certain-or-likely-ban-abortion-without-roe-heres-which-ones-and-why

[26] https://khn.org/news/article/state-constitutions-vex-conservatives-strategies-for-a-post-roe-world/

[27] From “Speech at New Haven, Connecticut,” 6 March 1860: https://quod.lib.umich.edu/l/lincoln/lincoln4/1:3?rgn=div1;view=fulltext, p. 20.