The Right Choice
Hadley Arkes on natural rights from the Declaration to Roe v. Wade.
Nov 25, 2002, Vol. 8, No. 11 • By PETER AUGUSTINE LAWLER
Natural Rights and the Right to Choose
HADLEY ARKES is a frustrated man. All he wants to do is to get his fellow citizens to talk with him seriously on the fundamental moral and political issue of our time: abortion. And he has been tireless in provoking such conversation through his writing, lobbying, testifying, and other political activism. It's a shameful commentary on the present state of our liberal democracy that he has achieved so little success.
In his new "Natural Rights and the Right to Choose," Arkes defends with plenty of reasons his view that "the right to choose" (really, the right to unlimited sexual freedom) has undermined the foundation of both natural rights and our constitutional order. To make sense, rights must be limited--by the rights of others, if nothing else. And the proposition of our intellectual political class seems to be that the unborn really have no rights, no claim for dignity at all, that we are bound as free and rational beings to respect.
That proposition, Arkes is convinced, cannot withstand the test of reason. He has a Socratic confidence in the power of reason to lead us to the truth about our natural limits and purposes, and so he is equally convinced that the crisis of our time is rooted, in large measure, in our lack of confidence in reason. Too many of our intellectuals--even too many conservative constitutionalists, such as Robert Bork and Antonin Scalia--are unreasonably skeptical about reason. Too many pro-life conservatives do not want to join in Arkes's conversation because they wrongly believe that reason is the enemy of moral decency. Those who believe that abortion is wrong are too often silent in public because they do not think they can really convince their fellow citizens that their belief is true.
In "Natural Rights and the Right to Choose," Arkes seems most of all to aim to convince his fellow moral conservatives to help him instigate a national conversation on abortion--and to convince them that reason is actually their best weapon in their effort to limit and eventually eradicate abortion through law. Conservatives even more than liberals need to understand that the pro-life position has an essentially secular basis in our Founding principles and in truthful reflection on human nature.
President Bush is certainly pro-life, but he followed the precedent set by most of his Republican predecessors when he refused to say during his campaign why he thought abortion wrong. Bush also followed precedent by refusing to explain to Americans why Roe v. Wade and subsequent pro-abortion Supreme Court decisions were wrongly decided. Indeed, he seemed to suggest that it is somehow unconstitutional for an elected official to challenge the constitutional wisdom of the Court.
But Lincoln, as Arkes points out, declined to accept the Court's notorious pro-slavery error in Dred Scott v. Sandford, and he taught Americans that ours is an anti-slavery regime. The refusal to bring sound and irrefutable arguments against Roe--to expose the fact that it unconstitutionally deprived American citizens of their right to make moral choices on abortion--is the largest error of Republican politicians in our time.
Not just a lack of confidence, but a moral weakness, lies at the heart of this refusal. Arkes points out that Republican legislators often prefer to have courts take abortion out of their hands--so they can then shake their heads and complain that there's nothing to be done about it. If Roe were reversed, our legislators would have to deliberate about what sort of pro-life legislation is warranted. That controversy would cause them great difficulty and no doubt ruin some careers.
Arkes sees the Democratic view of abortion as both smarter and more pernicious than the Republican view. The pro-choice Democrats do everything they can to squelch argument on abortion. Their demand is not only that no law restrict abortion but that it be deemed beyond the pale for anyone to say in public anything against it. Their increasingly obstinate position resembles that of the leading southerners prior to the Civil War, who demanded not only that no anti-slavery legislation be passed but also that slavery be regarded as a positive good under the Constitution.
ARKES'S CLAIM is that the Democrats are right: A national argument over, say, partial-birth abortion could easily unleash a train of thought that would lead to the discrediting of all abortion in America. I tend to think it will be more difficult than Arkes believes to make effectively the argument that laws allowing abortion are unconstitutional. For one thing, Arkes's confidence in the power of reason to inform practical life directly seems naive. For another, his presentation of the American Founding identifies modern "natural rights" with classical "natural right," as well as with the "natural law" teaching of St. Thomas Aquinas. In "Natural Rights and the Right to Choose," he presents the great tradition of Western political thought as more seamless than it really is.
If we understand America in light of Lockean "natural rights" alone, as some conservatives do, there is a line of thought that leads to the promiscuous application of the principle of consent to all areas of human life. Locke can be viewed as the grandfather of the soft libertarianism of our time.
To take Arkes's challenge seriously, we must begin a national debate over the true understanding of human nature and human dignity. Indeed, there is an additional urgency to this argument now, as the threats of biotechnology begin to loom over us. Unless we become clear as a nation that abortion is wrong, women will--I predict--eventually find themselves compelled to submit to therapeutic abortions of genetically defective babies and then to do whatever is required to enhance their children genetically.
Some of this, of course, is already happening informally through pressure imposed by physicians and HMOs. But the real coercion has not yet begun. We will not be able to protect the genuine reproductive freedom of women--their right to have and love their own babies--unless there is a pro-life consensus embodied in our law. Those who believe the effective regulation of biotechnological development can be morally neutral about abortion are simply wrong.
Peter Augustine Lawler is Dana Professor of Government at Berry College and author of "Aliens in America: The Strange Truth about Our Souls."