The James Wilson Foundation on Natural Rights and the American Founding

“The Conservative Legal Movement at the Edge of Schism” — Hadley Arkes in Public Discourse

Hadley Arkes elaborates upon Josh Craddock’s vision of the pro-life movement after Dobbs v. Jackson Women’s Health. He unpacks how the decision will impact the strategies that must be taken up at the State and Federal levels. Further Prof. Arkes outlines how Congress could take modest first steps to protect unborn life around the nation, even simply by reviving the Born Alive Infants Protection Act. But in the coming days, the conservative movement must re-orient itself around the central argument against the injustice of Roe v. Wade, that it denied the protection of law to an entire class of innocent human lives.

We have included a few excerpts below for your perusal.

“The position long established in ‘conservative jurisprudence’ is that the issue of abortion is then returned to the political arena in the states. The argument has been that since abortion is nowhere mentioned in the Constitution, it forms no part of the business of the national government. To entrench this view further, the issue is returned to the states because, it is said, we are too divided on whether that nascent being in the womb is truly a human life, which comes rightly under the protection of the law. As one of our leading conservative justices put it, there is ‘no way to determine that as a legal matter . . . the fetus and what others call the unborn child is a human life.’ That question hinges, he said, on a ‘value judgment’ made by people in the states on how much value they attach to the offspring in the womb as a human being.”

“Everything Craddock sets forth is apt, but in the immediate aftermath of the decision of the Court in June, the kind of initiative he brings forth is likely, as we used to say, to ‘scare the horses.’ Even a large block of conservative lawyers and jurists may be found quite dug in, resisting any such move to engage the Congress in any active exertion of its powers to protect that ‘human person’ in the womb.”

“When the pro-lifers have marched in Washington, they haven’t been carrying signs marking, as their chief complaint, that the Court has exceeded the limits of its jurisdiction. The burning concern has been with the killing of babies in the womb. No one thinks the purpose of those marches will have been accomplished when the matter is simply sent back to the states. For we know that in states like New York and California, the killing will charge ahead on a massive scale, with any lingering limits on abortion swept away.”

“What then might be the clearest first steps that the Congress could take, readily understood by the public—and readily accepted on all sides? The answer would probably be found in the bill we once described as the “most modest first step” in legislating abortion: the bill to protect the child who survives the abortion, the Born-Alive Infants Protection Act of 2002. But now we have the Born-Alive bill redux: the move to restore the penalties, civil and criminal, that had been stripped from that original Act. The newer version, which now features serious penalties, is called the Born-Alive Abortion Survivors Protection Act.”

To read the essay in its entirety, please click 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