The Magazine

Right to Choose, or License to Kill?

An exchange on the Senate floor exposes the dark side of "pro-choice" dogma

Nov 15, 1999, Vol. 5, No. 09 • By HADLEY ARKES
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(1) The right of a child to receive the protections of the law cannot pivot on the question of whether anyone "wants" him.

(2) If that is correct, then the child must constitute a real entity, in the eyes of the law, a being whose injuries "count," or have standing.

(3) If the Supreme Court can articulate new rights under the Constitution (such as the right to abortion), the legislative branch must have the authority to fill out those same rights, and in filling them out, to mark their limits. The one notion that should be plainly incompatible with the principle of the separation of powers is that the Court may articulate new rights -- and then assign to itself a monopoly of the legislative power in defining those rights.

If the courts -- and the Democrats -- deny those first two points, they are obliged to tell us just what the ground is on which the law claims to protect the newborn child. Or, if they would deny that the law can protect the child born alive, they would have to say now even more explicitly what the federal courts have been suggesting in the cases on partial-birth abortion: that it is no longer legitimate to bar infanticide if doing that would inhibit abortions. Over the past year there have been several cases of children who survived abortions, but the reactions of Barbara Boxer confirm yet again that the importance of the bill moves well beyond the number of cases.

Santorum was persuaded by the leadership in the Senate to hold back last year at this time, rather than distract attention from the bill on partial-birth abortion. And yet, it should be clear by now that this simpler bill would help to prepare the ground for banning partial-birth abortion. For it would compel the Barbara Boxers to declare themselves on the point they still wish to evade: whether there is a real child or entity there with a right to the protection of the law. The bill on partial-birth abortion looks likely to be vetoed again by President Clinton. And so, too, may be congressman Lindsey Graham's bill on "the unborn victims of violence," a bill that simply covers unborn children who are injured in the course of crimes that are already covered by federal law. If both measures are vetoed, Santorum and Graham should resume collaboration on a bill to protect the survivors of abortion.

The reaction of Barbara Boxer to Rick Santorum's questions reveals, powerfully, that the "pro-choice" contingent in both parties cannot face directly the simplest question that stands at the root of the issue; that the very posing of the question produces, on their part, anger and incoherence.

What more signs are needed? Bring that draft out of the files -- and press it now.

Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College and a fellow at the Center for Ethics & Public Policy.