Comparing abortion to slavery, Hadley Arkes explains how conservative jurisprudence has obscured the central issue of abortion–the killing of small lives–by referring the decision to the States. Though popular, such traditional conservative reasoning fails to address what the States should do if Roe is overturned. Conservatives should go further. The Fourteenth Amendment expressly gives Congress and the Courts power to protect life when the States refuse to do so. In overturning Roe, therefore, the Supreme Court should reject neutral language about “value judgments” in favor of the way ordinary pro-life Americans talk about the rights and wrongs of abortion. Only a decision plainly declaring that unborn babies are human lives will send a clear message to state courts and legislatures and begin to “navigate us out of this culture of death.”
“…one way or another, whether Roe is overturned, scaled back dramatically, or set on a path toward reversal, people will be invited to deliberate again about just how much protection they are willing to accord a child in the womb. Put another way, they will be invited to judge just who will be protected by their laws against homicide. For this reason, it matters profoundly how the issue of abortion is framed by the Court and sent back for the people in the various states to ponder anew.”
“’Value judgment’ is a term that came into play with Nietzsche and Max Weber, as people began to lose confidence in speaking of ‘moral truths.’ They would speak rather of things that were important insofar as people ‘valued’ them. This mode of thought has long been settled in the social sciences, and it has made its way even to conservative lawyers and jurists through the language of legal positivism. And so, whether the child in the womb will be regarded as a human being will depend entirely on how most people in the states ‘value’ the unborn child as a human being—and how strenuously they think the law should cast protections over that child.”
“Of course we would regard it as unthinkable now to invite people, through ‘the democratic process,’ to offer their ‘value judgments’ regarding the question of when black people become ‘fully human.’ It makes no more sense to invite people to offer their most earnest ‘value judgments’ regarding when life in the womb becomes ‘fully human.’”
“A straightforward mixture of empirical evidence woven with principled reasoning is quite enough to address the most natural and rudimentary question that could ever be asked about any law: Is this a measure that we are justified in imposing on people, as binding on them, even when it removes or restricts their freedom? In this case—the case of a purported ‘right’ to abortion—it is the freedom to kill, to dispose of, a small, innocent human being.”
“We have seen the signs already that judges in the states will find this ‘right to abortion’ to be implicit in their state constitutions. But the seed for a resistance may be planted if the Court sends the matter back to the states with this simple point recalled and put in place: The child in the womb has been nothing less than a human life from its first moments, and it has never been merely a part of its mother. To recognize that child as a human life would establish the crucial predicate for new constitutional protections for human lives, sojourning for a while in wombs. That ought to be enough to get the motors running with the Fourteenth Amendment, with its protections for ‘life’ as well as liberty and property.”
The complete article may be found here at First Things.