The James Wilson Foundation on Natural Rights and the American Founding

The Test of Heartbeats for Judges–and Other Former Fetuses: Prof. Hadley Arkes in The Catholic Thing

In his weekly column for The Catholic Thing, JWI Founder and Director Prof. Hadley Arkes details some of the history of the Right’s strategy on pro-life legislation in Congress and the Courts. Republicans, Arkes contends, have not tried to overturn Roe in one fell swoop, but rather have taken smaller steps that gradually restrict abortion access, hoping to slowly build up enough support in the culture for an eventual overturn of Roe. These small steps, Arkes writes, are well-intentioned and effective ways of reducing abortions in the United States. We need to remember, however, that restrictions are not the end goal. For it is only when abortion is completely banned in all states, Arkes argues, that the rights of the unborn child will be fully respected.

Some excerpts from the piece:

“In any case, it has been evident for almost 30 years now that the conservatives on the Court have thought it deeply imprudent to overturn Roe in one frontal move.  And so Justice Kennedy would add the critical vote to preserve Roe v. Wade in 1992, but he would vote later to sustain the federal bill to bar ‘partial birth abortion.’ With the addition of John Roberts and Sam Alito, the Court reversed its earlier decision on that issue.  And with that move it seemed to be announcing that: we are in business now, open to sustaining a host of measures, emanating from the States, and putting restrictions on abortion that would strike the public as reasonable.”

“In a world hemmed in by the inverted reasoning of the courts, the heartbeat bill may offer something that stays within the guidelines set down by the judges, even though the bill rests on layers of fallacies. Fetal heartbeats can be detected earlier than they could be in the 1970s, and yet, as Daniel Robinson once observed, there is something deeply implausible in letting the definition of human life ‘depend on the current state of the art in amplifier science.’ For the deeper truth is that the heartbeat is just one more feature made manifest in a nascent being that is already powering and integrating its own growth.  We might as aptly choose as the telling markers the appearance of fingers and toes (at 8 weeks), or the local reflexes of swallowing and squinting (at 9 or 10 weeks). The plain fact is that there is something in the womb quite alive and growing, and if that were not the case, an abortion would be no more relevant than a tonsillectomy.

View the full article in The Catholic Thing here.

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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