The James Wilson Foundation on Natural Rights and the American Founding

“Twin Barbarisms”– Prof. Hadley Arkes reviews Prof. Justin Dyer’s “Slavery, Abortion, and the Politics of Constitutional Meaning” in the Claremont Review of Books

Writing for the Claremont Review, Prof. Hadley Arkes draws upon Lincoln and various scholarly texts to explain how the issue of abortion and the issue of slavery share the same root in principle.

Some excerpts:

“For at the core of both [abortion and slavery] was that question of what John Paul II would call ‘the human person.’ In our own age, and in Lincoln’s as well, we were already distant from Aristotle’s biology. No educated person could have held that the offspring in the human womb went through an ‘animal’ stage before it advanced to the condition of a ‘rational’ human conceptus, embryo, fetus, child. There was no change in substance anywhere along the chain of development as the same creature powered and integrated its own development. …[N]o one could suppose that human beings became more human as they became taller and heavier and more articulate, or that it was a lesser wrong to kill a smaller, younger human not yet diagramming sentences. The gravity of homicide was not measured by the height or weight, or the intelligence or articulateness, of the victim. Once it was clear that the offspring could be nothing other than human, the reasons that were needed to justify the taking of that small human life had to stand on the same plane as the reasons that would be necessary to justify the taking of any other human life.”

“Nor was the central fact of the matter refracted or altered by ‘religious belief.’ It was a matter solely of principled reasoning. Was [slavery] a matter of color: ‘the lighter having the right to enslave the darker? Take care. By this rule, you are to be slave to the first man you meet, with a fairer skin than your own.’ Was it a matter of intellect—that whites were intellectually superior to blacks and ‘therefore have the right to enslave them? Take care again. By this rule, you are to be slave to the first man you meet, with an intellect superior to your own.’ The upshot was that there was nothing to be said to rule out black people as human beings that could not rule out many classes of whites as well. Why was that offspring in the womb anything less than human? It didn’t speak? Neither did deaf mutes. It had yet no arms or legs? Well, others lose arms or legs in the course of their lives without losing anything necessary to their standing as human beings to receive the protections of the law. The upshot: there was nothing one could cite to disqualify the unborn child as a human being that would not apply to many people walking about, well outside the womb.”

“In other words, the injuries of the slave did not count or register, because the slave himself did not count as a real person, whose injuries mattered. And so we fast-forward and find President Bill Clinton vetoing the bill that banned the grisly procedure of ‘partial-birth abortion’—with 70% of the baby’s body dangling from the birth canal, the baby’s head was punctured, the brains sucked out, and the body removed, so to speak, intact, leaving behind no dismembered parts that could cause infection. In vetoing the bill Clinton expressed deep concern for those women whose health could be protected by the use of this procedure. But screened from his sense of the scene was that other person, the one whose head was being punctured and brains vacuumed out. That assault on ‘health,’ that grievous pain inflicted without an anesthetic, just didn’t register. The pain did not count because the child herself did not count.”  

“In 1868, the year that the 14th Amendment passed, the redoubtable Horatio Storer wrote in his book Criminal Abortion that

[i]f the foetus be a lifeless excretion, however soon it might have received life, the offence is comparatively as nothing: [but] if the foetus be already, and from the very outset, a human being alive, however early its stage of development, and existing independently of its mother, though drawing its sustenance from her, the offence becomes, in every stage of pregnancy, MURDER. 

In our own day we find people with pricey degrees, even Ph.Ds, who profess not to know what medical science, or the textbooks on embryology, teach about the beginning of human life.”

“[T]he ‘hard nut to crack,’ as Lincoln would say, is that ‘truth’ about the ‘human person.’ The need to deny that truth must ever be the source of that authority, untroubled with doubts, to invoke brute power over others as the means of denying both liberty and life. And the only thing novel is that, with each generation, the news comes as a surprise.”

Read the whole piece here

Law and liberty cannot rationally become the objects of our love, unless they first become the objects of our knowledge.
— James Wilson, Lectures on Law, 1790