Continuing to Argue Against Abortion

baby feet

“Yet because the decision will not allow the question to remain silent, and yet sounds an ambiguous note as to how it would be answered in terms of our contemporary liberalism, the decision [Roe v. Wade] ‘Commends th’ ingredients of our poison’d chalice/To our own lips’.”  G. P. Grant

Although President Obama’s affirmation of “reproductive rights” appears to be the status quo, this is not a time to be silent about the sanctity of life.  George Parkin Grant, the Canadian philosopher known for his penetrating insight into the connection between liberalism and technology in modern society, argued in the wake of Roe v. Wade decades ago that the reasoning given in this judicial decision undermines free societies.[1]  In evidence, Grant pointed to the connection between abortion and confusion about the ontological status of the nature of human beings underlying our philosophies, but additionally he argued in a more political vein that Roe v.Wade had undermined the principle of equality under the law by stripping the unborn of the right to be represented in a court of law. He found Roe v. Wade extremely unsatisfying because it, in his words, undermined the “legal and political system, which was the noblest achievement of English-speaking societies.” Consequently, he came to consider justice for the unborn the central question facing North America, and it is not an exaggeration to say that he considered it a sign of that kind of danger to human rights that was present in Nazi Germany.

Around one million abortions are performed each year in the United States.  Although that number has fallen from a high of a million and a half abortions, it is nevertheless unsettling.  As has been frequently noted, no European country offers so little legal limit on abortion as does America. Anyone interested in protecting the unborn should realize that voting pro-life at the state level matters quite as much, if not more, than voting pro-life at the national level.  Political scientist Michael New, University of Michigan-Dearborn, has shown that certain kinds of laws are helpful in the short term to limit the number of abortions. On the stump, however, advocates for the unborn should be aware of the kinds of argument that Grant made. They are persuasive because they make a connection between the Declaration of Independence, the founding principles of American constitutional law, and the protection of the unborn.

The fundamental question might be raised in this manner: is the unborn a class of persons who should not have the same rights as other individuals under American law?  If so, then can one rest content with the fact that legalized abortion undermines the principle of equality under the law? Situated in this way, abortion is not connected to issues of sexual morality, like contraception or the nature of marriage, which, as important as they are, obscure the central legal problem.  In Roe v. Wade, the court removed legal and constitutional protections from a certain class of individuals, in this case very young children, despite the fact that those same unborn children can inherit property and may be recognized as a plaintiff in a lawsuit.  In connecting abortion to privacy issues, the court in Roe v. Wade gave the mother a private right to kill her child, situating within the law a private right to kill another human being.  Looked at from that angle, it is clear that the right to abortion makes the idea of equal rights under the law, guaranteed to each individual, no longer the law of the land. It also created an anomaly within the law, as there was no attempt to reconcile it with standing law. This is ominous for both minorities and women, both of whom have benefited from courts adjudicating on the basis of a right to equality, a right which is now in question.

There is a related philosophical question as to how rights should be conceived under the law: is equality under the law a universal right, self-evident and permanent, or is it the product of the court decisions?  The removal of legal rights from unborn children makes it appear that basic rights are now considered simply the product of courts.  This position has, of course, been defended persuasively for a number of generations.  The idea that courts ought to determine the outcome of cases pragmatically, that there is no higher justice, no fixed rights, and no recourse to historical legal reasoning, has its defenders within a school of thought called “realism.”[2] These include Oliver Wendell Holmes, Jr. for whom there was no law but the positive law, and who famously supported the sterilization of the unfit, a precursor to Roe v. Wade. Part of the difficulty of adjudicating on abortion is connected, therefore, to questions about the foundation of basic rights, and it is connected at least indirectly, to an approach to jurisprudence born of philosophical pragmatism.

Without describing philosophical pragmatism at length, one can say briefly that William James denied the existence of a higher law or any a priori principles of justice and truth in the name of pragmatic truth, a truth that is practically useful for people. Writing at the turn of the twentieth century, in Pragmatism, James argued that there is no objective higher realm of truth, truth claims are projections of our wills, and that what is true is true only insofar as it is useful to us. He spoke of the plasticity of truth.  Historians have noted that legal scholarship was influenced by such ideas. Clearly epistemic questions about the nature of truth are connected to the abortion issue when one raises certain crucial questions: Are rights invented by courts to serve certain social purposes, or are rights received from higher principles?  Are rights an expression of social desires,or are they inherited in the common law, an expression of permanent principles and, in the words of Edmund Burke, a guarantee of ‘rational liberty’? Can we know what a human being is?

Pragmatic jurisprudence has its brilliant defenders, but what they protect is not the human person because he has rights, for to speak of a given human nature is a contested, metaphysical speculation. Rather they defend the right to engage with others in such a way as to respond to real-life pressures.[3] On this account, there is no need to prove that a new right is connected to historic rights, but rather one must make an argument about the merits of the practical effect of that right. In other words, courts will protect a right if it helps people realize a certain ‘quality of life.’ Reproductive rights are pragmatic rights in this sense.  Thus the language of right remains, but the content of the word right has changed, and the language of liberalism has become confused.  Natural rights emerged at a time when philosophical liberalism spoke about human nature in a certain way: it was fixed, and human beings were able to know universal rights. Rights language is now connected to a metaphysical standpoint which denies this.  It is this fact that places a great question around Roe v. Wade.

George Grant made the case that rights are nothing if not grounded in the permanent things.  To leave the courts to decide whether a person—born or unborn—is worthy of rights endangers the rights of every person within a society. In the language of the American Declaration, rights are self-evident truths; but this presumes that truth is available to reason. The signers of the Declaration, while Christians or deists themselves, assumed that rights are universal because they thought that every person in the world, reasoning rightly, whether Christian or not, could see that equal treatment under the law is a tenet of justice.  They saw in the common law the very rights they were engaged in protecting; they did not question them. The idea that each individual, qua individual, was equal under the law was self-evident because it was rational and historically grounded. So Roe v. Wade raises a serious question about the very possibility of justice as understood in Western law and it raises questions about the very nature of liberalism. It is also, philosophically speaking, connected to deeper questions about human rationality. If human beings are not rational, and if the history of the common law and the development of common law rights have no foundation in reason, then what the judges have done is, to use Grant’s paraphrase of Macbeth, “raised a cup of poison to the lips of liberalism.”

Are rights a projection of the will of the courts or the majority and nothing more?  Have we, like Macbeth, turned against ourselves?  Are we now coming to the end of the great “English-speaking drama” which once was, and is no more, the bulwark of Western liberties?  While ontological issues are at stake and the greatest questions regarding the very existence of rights are being argued in the universities, at the same time, it is also true that ordinary persons still speak and think as if they have rights.  This is no small thing; the reasoning of ordinary human beings today, as at the time of the Magna Carta, informs them that equal treatment under the law is a fundamental tenet of justice.

In the universities, of course, it is rather important and useful to consider the impact that progressive and pragmatic ideas have had on the courts and ponder the merits of progressivism and philosophical pragmatism. One must consider the effect that these larger ideas have had on the western legal tradition, and also how such thinking will affect laws connected to euthanasia and care for the mentally handicapped.  At the local and national level, bright young people should run as pro-life candidates because this issue offers an entry into making the kinds of arguments that will preserve liberal justice—“rational liberty,” as Burke once termed it. These are the kind of liberties that were central to justice as it was conceived in the West for centuries.

Roberta Bayer is Assistant Professor of Government at Patrick Henry College, where she teaches medieval and contemporary political thought. Dr. Bayer edits the magazine of The Prayer Book Society of the United States, The Anglican Way. Her recent work includes Reformed and Catholic: Essays in Honor of Peter Toon (Wipf and Stock, 2012). 

[1] George Parkin Grant, English-Speaking Justice, (Notre Dame: Notre Dame Press [1974], 1985), and “Abortion and Rights,” in Technology and Justice (Notre Dame: University of Notre Dame Press, 1986).

[2] See:  A. J. Beitzinger, A History of American Political Thought, (Eugene, Oregon: Wipf and Stock, 1972, reprint) ch.22.

[3] Stanley Fish, Richard Posner, and Richard Rorty, for example, have taken up the question of pragmatism in legal terms. See: Fish, Doing what Comes Naturally, (Duke U.P., Durham, 1989).


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