The Right Right For Our Time
At some point during President Bush’s term, one or possibly two Supreme Court justices will announce their retirement, thus triggering a war to control the ideological composition of the Court. We have already had a rehearsal for the event. Democratic opposition to the appointment of John Ashcroft as Attorney General was intended, according to Sen. Charles Schumer, D-NY, as "a shot across the bow in terms of Supreme Court nominations." By mustering 42 votes against Ashcroft’s appointment, the Democrats demonstrated that they had sufficient votes to avoid closure of any filibuster they might mount against an unacceptable Supreme Court nominee. President Bush was thereby warned not to send up a nominee who doesn’t share the Democrats’ views on the existence of penumbral rights, the vestigial nature of outdated rights like the Second, Ninth and Tenth Amendments, and the unlimited scope of federal power.
Ashcroft was opposed, in great measure, because he is pro-life. The hearings on his appointment were widely perceived as a trial run for the battle over the appointment of the next Supreme Court justice because that justice will likely hold the balance of power that topples, or maintains, Roe v. Wade. This degree of commitment raises a really intriguing question: just what is it about belief in the right of abortion that makes it a litmus test for service in government at the highest levels?
Surely this is worth some consideration. Is it not remarkable that, principal among all rights, abortion would have this significance? After all, it would not seem that “a woman’s right to choose” had much to do with the day-to-day government of the nation. Certainly the right has little to do with the performance of the economy, defense of the country, conduct of foreign affairs, protection of the environment, the administration of Social Security benefits, or the quality of our children’s education. Why, then, is the position on this issue determinative, for so many, of votes for President, Supreme Court Justice, Attorney General, Senator or Representative?
Consider the question from an historical perspective. The things we recognize as fundamental rights acquire that status at some point in history, such that they uniquely fit that time and place, and crystallize for us the distinct character of the men of that time. The barons who convened at Runnymede with their private armies to convince King John that the time had come to sign Magna Charta, agree that he was subject to the law of the land and that men could be deprived of their liberty or property only upon conviction by a jury of their peers, and not upon the King’s mere command, were plainly men who would not long tolerate arbitrary or irresponsible power, who knew where their rights came from, and how to maintain them.
Scroll down the ages nearly 800 years and we find Senators and advocacy groups like the American Civil Liberties Union and People for the American Way throwing down the gauntlet in a righteous rage not over concern that a Court nominee does not have a strong enough position on the limited powers of the federal government, the right to carry arms, the right to be free from unreasonable searches and seizures or the taking of property without just compensation, but “a woman’s right to choose.” Yes, it is a right that was created by government itself that is first upon the lips. What is it about the right of abortion that has made it the right for our time?
First, let us be clear what the right is: the right of a woman to commission and carry out the killing of her unborn child for nearly any reason right up to the point the child is completely out of her body. Strictly speaking, in legal theory, the woman possesses this right unconditionally only up to the point of viability. Thereafter, she may exercise her right only for valid “health” reasons, subject to the state’s interest in the life of the child. However, since there is, deliberately, no system to define what constitutes a legitimate “health” concern, or to monitor or verify the reasons for a doctor’s agreement that the abortion is advisable for the “health” of the mother, for practical purposes the right is nearly unlimited to the point of complete exit from the mother’s body.[i][i] In essence, then, the taking of innocent, unborn human life — for convenience, for “life-style” reasons, or simply because it is “not a wanted child.” Of course there can be more compelling reasons, but having a serious reason is not a requirement of the right, any more than having something profound to say is a condition to exercising the right to free speech.[ii][ii]
Examination of the activities of government reveals why this right so perfectly takes the measure of our time. The modern democratic state administers its citizens’ property, income and liberties as a spoils system for the purpose of creating a preferred, and allegedly more “fair” or “just” distribution of income, wealth, status, privilege, rights and obligations.[iii][iii] This is done by at least three means. First, by taking the income or property created, earned or inherited by some citizens (entitled to “equal protection of the law”) and transferring it to others (more equally entitled to equal protection of the law!) who have not earned it and to whom it does not belong. Second, by depriving some citizens (entitled to “equal protection of the law”) of their rights or liberties for the sake of conferring a benefit upon others (more equally entitled to equal protection of the law!). Third, by imposing unwarranted obligations upon some (entitled to “equal protection of the law”) for the benefit of others (more equally entitled to equal protection of the law!). For example, high tariffs on importation of certain goods, such as sugar or peanuts, or the imposition of import quotas (such as those on Japanese automobiles), as protectionist measures to benefit domestic industries, regulatory barriers to entry in business (such as livery cab restrictions), zoning and land use laws, prohibitions on smoking, taxation to fund benefit programs, imposition of environmental clean-up obligations on property owners who did not contaminate their land, requiring employers to offer health insurance to employees, etc.
Now it is evident that one who believes that there is a right of abortion, that is, that one person can have a right to deprive another human being of life itself, for no greater reason than that one does not wish to be encumbered by the other’s claims upon a preferred life-style, can have no moral or philosophical objection to any of the myriad lesser deprivations of the rights, liberties or property of others that constitute modern governance. For example, compared with the act of killing an unwanted human being because he interferes with one’s plans, will overtax one’s desire or ability to deal with him, or is inconvenient, taking over 15% of a person’s lifetime gross wages to create and support retirees and pay their medical costs is practically an act of grace. One who has no qualms about the former, certainly cannot have concerns about the legitimacy of the latter.
The right of abortion thus represents the limit of a line on which the modern state is already traveling: any taking, for any reason, because we want it. To claim or support this right, then, is to give the best evidence that one shares the government’s reigning ethos -- in spades -- and is well qualified to lead us further down this road.
As further evidence, we can view the matter from the perspective of the modern state’s use of law. Historically, the principal purpose of the criminal law was justice: to avenge or requite wrongs. Wrongs, moreover, were not simply anything that men outlawed by statute.
Classically, the crimes recognized by common law involved clear harms to another: murder, rape, assault, robbery, theft, arson. These harms had to be proven to be the result of a man’s acts. However, the linchpin of the system was the requirement, as summarized by Blackstone, that “to constitute a crime against human laws, there must be first a vicious will, and secondly, an unlawful act consequent upon such vicious will.”[iv][iv] To be a crime, an act resulting in harm to others had to have been committed with bad intent. The requirement of a “vicious will” (where “vicious” has the older meaning of “having the nature or quality of vice or immorality” rather than the more common modern meaning of “brutal”), wedded crime to immorality, insuring that only acts that sprang from immoral or blameworthy intent could be defined as crimes, and were punishable.
The modern state, however, pursues prevention, safety and fairness, not justice. It does not render justice for society, but engineers society itself. Of necessity, it targets conduct that is not itself criminal, unjust or unfair, but which precedes criminality, injustice or unfairness (else it cannot prevent). It therefore seeks to restrain men before they have done anything wrong, unjust, unfair or harmful, that is, while still innocent, with the avowed goal of preventing them from harming themselves or others and, increasingly, to shape their conduct into safe, healthy, fair and pleasing modes. This is done not only to prevent crime (e.g., gun-free post offices, school zones and streets), but also to avoid burdens that overtax the state’s “charity” (such as the campaign against smoking on grounds that it inflicts burdensome health care costs), to mandate a preferred life-style (zoning, or, again, smoking), for “health” reasons (e.g., mandated air or water quality standards), to build a better or more fair society (e.g., compulsory education, government-mandated education standards, racial preferences in hiring, promotion, contract awards), or to secure any number of other social engineering goals.
Viewed from the perspective of the principles of justice established at common law, the use of law as a tool of prevention or social engineering punishes men in advance, before they have actually done anything harmful to others that, under common law principles, would be defined as criminal (i.e., morally wrong), based on assumptions, statistical probabilities or mere fears about what might or could happen later, or what might already have happened (but which is not proven or proven harmful). In essence, men are punished for an unproven presumed harm, or a presumed injustice, on the basis of an assumed or probabilistic indicator of crime or injustice that may not have actually happened or may never happen (for example, owning an unregistered machine gun or carrying a gun in a post office because the owner might use it to commit a future crime, failure of an employer’s work force to reflect the racial composition of the surrounding society, as proof of an ongoing crime, viz., racial discrimination, or carrying too much cash as evidence of a past crime – drug dealing). To put it as succinctly as possible, men are punished based on signs and portents.[v][v]
Again it is evident that one who believes that he has a right to deprive another of life itself, when that other has committed no act (harmful or otherwise) other than to exist and is completely innocent, simply on grounds that it is necessary to achieve the life-style envisioned for himself or because the other’s existence would be too burdensome, can have no possible moral or philosophical objection to innumerable laws that punish those who have done nothing morally wrong or harmful simply to secure compliance with orders implementing the state’s favored life-style choices. Apparently, then, in its expression of this willingness to freely use the ultimate sanction without regard to moral guilt or innocence and solely as a means to secure a desired result, a belief in the right of abortion declares that one is supremely fit for service in the modern state. But this is not all. We have not yet grasped the full significance of this right.
Now, to assert a right of abortion is to assert a right to reject responsibility for the very life and well being of another human being, despite the fact that that life was created as a direct result of one’s own, voluntary actions. A person who believes in a right of abortion thus believes that a person has a right to reject complete responsibility for his own acts even when that “choice” necessitates the killing of one’s own flesh and blood. Now a person who is prepared, who believes there is a right, to go this far, is certainly ready, willing and able to accept any offer of the state to relieve him of innumerable responsibilities of far less significance, and to permit the state to take whatever steps are necessary to do so, let the consequences for others be what they may.
The right of abortion thus represents the limit of a line on which the great majority of Americans are already traveling: abdication of any responsibility, at any price, because we will not bear it. Apparently, then, in its expression of this absolute readiness to renounce personal responsibility and let others bear the consequences, a belief in the right of abortion renders one supremely fit to be a subject of the modern state.
Thus, belief in the right of abortion represents, as no other single fact can, a remarkable concurrence of understanding between subject and state. It most appropriately serves, therefore, as the litmus test for service in government at the highest levels. In fact, it may fairly be claimed that the relation of mother to child established by the right of abortion is the perfect analogue of the ideal relation sought between the state and its subjects: it represents that degree of power and right both that the state seeks to possess and exercise over its subjects and that the subjects want the state to exercise for their benefit.
Now to this it might be objected that no subject could truly will this ideal, as it implies consent to his own utter destruction should the state determine that it is he who becomes too burdensome or stands in the way of realizing the state’s preferred life-style choices. True, but this is an objection that is possible to raise only outside the ethos of the modern state, which is, simply, and no more than — wish fulfillment. Its impetus is not tempered or curbed even by the condign warnings given in fairy tales about the fate of those who command the jinn to transform their wishes into reality, much less the Kantian test for insuring that one treats each person as an end in himself, and not merely as a means to the fulfillment of one’s desires, viz., that a desire can be willed simultaneously universally without contradiction or self-destruction. No, instead, rival groups proceed from election to election forever hoping that their representatives will gain control of the spoils system, so that it will be their turn to be, in Bertrand de Jouvenel’s marvelous description, the beneficiaries of arbitrariness.[vi][vi]
And here again it is belief in the right of abortion that so perfectly captures, and self-selects for, this trust, so vital to the workings of the modern state, in a Power that warrants and contains one’s own destruction, secure in the knowledge that that Power is meant to be applied only against others, because the only persons who believe in a right of abortion are those who already safely exist because their mothers did not abort them, and for whom abortion is simply a power they have over others.[vii][vii]
Now it might be said that the argument thus far rests on a patent error: the aborted fetus may indeed be a “human being,” since its genetic code is complete from the moment of conception, but it is only an “unformed” human being in the earliest stages of its development, and so is not really a “person.” Therefore, killing it is not “murder,” its destruction does not have the terrible significance ascribed above, and the demonstrations of how well this right accords with the nature of the modern state and its subjects collapse.
However, this criticism, far from destroying the argument thus far made, is the final evidence that completes the case for abortion as the preeminent right of our time. Yes, true! The question of who is a “person” is not a fact of nature observed by scientific analysis of the biology or physical development of the human being, but is a religious judgment of the nature of man, a recognition and acknowledgment that each man has a soul created by God. And this is critical: the decision to treat a human being as a “person” is not compelled by scientific evidence but is a religious or at least moral decision made in absolute freedom of conscience, for which one is, therefore, absolutely and eternally responsible. Oh, yes, it is a “choice” we make, but one which proclaims the extent of our acknowledgement of, our obedience to and humility before, God, or in the watered down concepts acceptable to a secular world, the extent of our own humanity.
And precisely this is what is so terrifying — if one believes that there is a God. The fact that we could choose not to extend or grant, in good conscience and of our own free volition, “personhood” to one in his earliest moment of existence, when most helpless, most in need of our love — yes, yes, that is enough to make one fall down in fear and trembling — that for us, unlike the God who is love, it is a choice whether we see God’s creation, or treat it as human waste.
But if one does not believe in God, then man is the measure of all things, including, evidently, who is, and who is not, human, one knows naught of fear and trembling, and presumably all goes swimmingly. At least there is no basis for saying that it does not, for, as de Jouvenal observed, “once man is declared ‘the measure of all things,’ there is no longer a true, or a good, or a just, but only opinions of equal validity whose clash can be settled only by political or military force; and each force in turn enthrones in its hour of triumph a true, a good, and a just which will endure just as long as itself.”[viii][viii]
Ultimately, the right of abortion is emblematic of our time because modern governance rests on an astonishing facility in not seeing persons. There are, of course, the obvious examples: the genocide of American Indians, the internment of Japanese-Americans, killing Iraqis to secure cheap oil, bombing aspirin factories in distant lands to get impeachment off of the front page. But there are innumerable less obvious examples as well.
The tax burden borne by the average American family approaches 40 percent of family income. One might wonder whether a government that lost no sleep at night over the fact that it was taking this much of its citizens’ income really, truly understood that those whom it deprived had their own hopes and dreams, were trying to create opportunities for themselves and a better life for their own children, had their own worthwhile causes to support, that, in short, taxation was truly diminishing them and all connected with them. One might wonder whether a government that really saw all persons as entitled to equal respect might not, at some point, begin questioning whether it really had the wisdom or ability to determine whether it was doing more harm than good by taking from some to give to others through benefit programs too numerous to name, keep track of or scrutinize, multiplying upon the flimsiest of “good ideas” (say, for example, midnight basketball). In short, one might question whether such a government really saw its taxpayers as persons in their own right, or simply as resources to be mined, and the tax code as a tool of infeudation.
Or we might question whether retirees, when they discovered that Social Security was not a pension plan that paid them with the proceeds of their own (forced) savings but simply a system that took the earnings of workers to pay retirees, might not question whether the parasitic relationship kindly established by the state was really a preferred means of getting along with their fellow man, or the manner in which persons worthy of equal and mutual respect ought treat one another, and so reject the notion that they had any right to the income of others. We might wonder whether, in such circumstances, although asking the indulgence of the taxpayers upon whose support they depend because of the difficulty at this late date of living by their own means, they might not become the most vocal advocates for the expeditious elimination of the program, so that future generations would not fall prey to the same fate or indignity.
The murdered unborn are only the first casualties. Those who survive exit from their mother’s bodies will soon run a new gauntlet. The definition of who is and who is not a person has been freed for political use, and henceforth will be brokered by parties in their bids for control of the spoils system along with the rest of men’s labors, liberties and lives. As the current raging debate over the use of embryos for medical research and cloning already portends, as Hillary Clinton’s Health Reform Task Force’s observation that most of a person’s health care costs are incurred in the last six months of his life ominously foreshadows, rival groups will compete to seize the reins of power to decide, in part, who is a full human being, who is an exploitable biological resource for others, whose life has ceased to be “worth living,” whose life is too costly to maintain, who is human waste. Wish fulfillment has slipped its last rein, and a rich new vein has been opened in the mining of individuals as “human resources.”
Such is the inheritance we gain when government creates rights.
[i][i] Abortion case law defines “health” broadly to include the psychological impact of pregnancy or having a child. But even if the law limited it to the purely physical, pregnancy and childbirth always involve some risk to the life or physical well-being of the mother. Thus, the requirement that an abortion be performed for “health” reasons is no requirement at all unless bureaucratic mechanisms are put in place first to define valid health reasons by reference to government-approved “unacceptable” degrees of risk and then to monitor, approve and police the decisions of women and doctors post viability. Obviously, no such system is seriously contemplated, and the nation cannot even muster the will to ban partial-birth abortions, where birthing is already in full swing and must be stopped to commit the abortion, and the physical health risk of carrying to term (or near–term) and delivering the child has already been accepted.
[ii][ii] This article does not address the question of whether other reasons for abortion, such as a significant risk of the death of the mother, rape, incest, or the child’s physical or mental deformity, are justifiable, because exercise of the right, as defined by the Court, is not, at least prior to viability, conditioned upon prior satisfaction of specified conditions. Thus, in this article I deal only with the significance of the legal reality that the right has been grounded in mere desire (whether the child is “wanted” or not).
[iii][iii] How fortunate that “fairness” and “justice” are readily determined by majority vote!
[iv][iv] 4 Commentaries on the Laws of England, 21 (1765 – 1769).
[v][v] The modern American Model Penal Code requires only that a proscribed act be committed with intent, not bad intent, to constitute a crime. Whatever else one might say about this state of affairs, without the requirements of a proven harm caused by an act springing from bad intent, due process, as our Founding Fathers understood it, is severed from morality, becomes empty formalism, and has ceased to exist, because any intentional act may be defined as criminal and subject to punishment (albeit justified by reference to what the act signifies or portends). After this coup, any further talk about the majesty of the “rule of law” or the harm suffered by the “rule of law” by the acts of this or that President is simply uninformed or mindless prattling, because such a system of “law” is indistinguishable (in terms of the possible and permitted results) from that under which tens of millions were condemned to death in the Soviet Gulag, a fact readily apparent from Solzhenitsyn’s revealing descriptions of the nature of Soviet law in Volume 1 of The Gulag Archipelago. Consider, for example, this passage: “Please forgive us, reader. We have once more gone astray with this rightist opportunism — this concept of ‘guilt,’ and of the guilty or innocent. It has, after all, been explained to us that the heart of the matter is not personal guilt, but social danger. One can imprison an innocent person if he is socially hostile. And one can release a guilty man if he is socially friendly.” Or this one: “And it must be kept in mind that it was not what he had done that constituted the defendant’s burden, but what he might do if he were not shot now. ‘We protect ourselves not only against the past but also against the future’ ” [quoting “that fierce revolutionary, . . . and later the organizer of the Department of Exceptional Courts of the People’s Commissariat of Justice . . . the glorious accuser in the greatest trials,” N.V. Krylenko]. [Harper & Row, publisher, 1974 paperback edition, at pp. 282, 306 and 309.]
[vi][vi] On Power – The Natural History of Its Growth (1945), translated by J. F. Huntington, published by Liberty Fund, Inc., Indianapolis, 1993, p. 402. Available from Liberty Fund, Inc., http://catalog.libertyfund.org/.
[vii][vii] Supporters of the right of abortion believe in this marvel: a right that can survive only by not being exercised.
[viii][viii] On Power, at p. 234.