Beyond the Right to Life

Touchstone readers will find of interest senior editor Wilfred McClay's essay "Beyond the Right to Life" in the Fall 2006 issue of The New Atlantis: A Journal of Technology and Society. McClay, reviewing Ramesh Ponnuru's book The Party of Death, looks at rights language in contemporary bio-ethics debates.

McClay argues against Ponnuru's hyper-polemical tone, starting with the title of the book itself. McClay counters:

The party in question is not in love with, or advocating for, death. It is in love with, and advocating, a short-sighted and impoverished vision of life: the dream of complete and unconstrained personal mastery, of the indomitable human will exercised on the inert and malleable stuff of nature by the heroically autonomous and unconditioned individual, who is ever the master of his fate and captain of his soul, and whose own existence is, or deserves to be, infinitely extendible. It eagerly embraces the Jeffersonian dictum that the earth belongs to the living, and rejects the Burkean idea that society is an eternal contract between the living, the dead, and the unborn—a contract that is most powerfully manifested in the primal strength of family bonds, and that serves as a profound form of prior restraint upon the individual’s room to maneuver.

Turning to the question of "rights" language on the part of pro-life advocates, McClay asserts that while the "right to life" is indeed constitutionally guaranteed, it doesn't tell the whole story:

To say that we do not kill them because they have a right to life is not to explain why we have a responsibility to care for them, and love them, and why we fail ourselves when we fail to acknowledge that responsibility, and seek to offload it onto others. An ailing elderly parent has the right not to be killed, but he does not have the “right” to be loved.

Yet it is one of the central tasks of our humanity that we care lovingly for him, and not merely be instructed by the law that we must resist killing him. “Rights talk” does not necessarily give rise to “responsibility talk.” Sometimes it may have the opposite effect, in luring us into a false sense that we have fulfilled all righteousness merely by dutifully observing the rights of others. One of the many fallacies behind the legal instrument of the “living will” is the thought that the “right” of the abstract individual to decide his medical fate—often basing the decision on ignorant and meaningless projections into a future that few of us can imagine, let alone predict—should take complete legal precedence over the loving input of families on the scene. This is not only a fallacy in practice, since living wills are generally set aside when they get in the way, but a fallacy in theory, since we are never entirely our own, and least of all in moments of profound dependency.

The energies that bind the family cannot be accounted for by rights talk.

Ironically, McClay writes, the "rights" language employed by pro-life advocates could actually fuel the Frankensteinian forces behind the culture of death. He writes:

It is not at all hard to imagine a world in which a general desire to boost birth rates, in tandem with technological advances such as the perfection of the artificial womb, would lead governments to make liberal and even systematic use of frozen or “surplus” embryos to repopulate their declining countries. Such developments would fully respect the embryonic right to life, but it would do so in an otherwise ghastly way, by eliminating the need for childrearing parents, and indeed for the natural family itself. It is not the least bit far-fetched to imagine that the “snowflake babies” of today could become the “state babies” of tomorrow, absent a strong commitment to the idea that the individual right to life is not sufficient unto itself, and cannot be separated from our protection, in mores and in law, of the normative human context in which it arises. An emphasis on the inviolability of individual rights, particularly when it is offered without a similar stress on the actual institutions within which individual human lives come to fruition, oddly mirrors the very radical individualism it seeks to counter.

Perhaps McClay's strongest critique of the Ponnuru book is McClay's contention that the style of debate employed by Ponnuru isn't the way minds are changed on the abortion issue. McClay points to the slavery debates of the 19th century, arguing that the tide of opinion on human slavery wasn't turned by abolitionist debating points but by such things as Harriet Beecher Stowe's Uncle Tom's Cabin.

McClay argues that sonar technology and legislative measures banning partial-birth abortion have been more effective than abstract arguments because they, at the gut level, humanize the "fetus" in the minds of the public and expose "the pitiless extremism of the abortion-rights movement." McClay concludes that the way of Stowe's novel is the path to the future if we wish to protect unborn children. "It brought slaves inside the affective circle," he writes. "There is almost certainly a lesson for the present in this, a lesson about the kind of books we need but don't yet have."

Comments

[Bill R]

"McClay argues that sonar technology and legislative measures banning partial-birth abortion have been more effective than abstract arguments because they, at the gut level, humanize the "fetus" in the minds of the public and expose "the pitiless extremism of the abortion-rights movement.""

I agree, and perhaps the refusal of the House yesterday to pass the fetal pain bill will have a similar effect. I mean, even NARAL did not oppose this bill! The average Joe or Jill on the street relates to fetal pain far more strongly than to an abstract concept of "fetal viability." Here is "the pitiless extremism of the abortion-rights movement" writ large.

[Reid]

I have long held doubts about the use of the word rights, both in the U.S. Constitution and in the "right-to-life" movement. Saying, "A man has a right to life" is, at best, an awkward, indirect way of saying, "God forbids murder." It makes murder an offense against the man (or, slightly better, against some right inherent in the man because of how God designed him), rather than an offense against the immortal God who created man in His own image. Taken further this view prepares man to take offense even at the judgment of God against the sin of man -- and do we not hear some unbelivers rail against the God of the Bible who gave Moses laws calling for capital punishment, who sent the Israelites to destroy the Canaanites in judgment for their sins, and who speaks through his prophets and apostles of judgments yet to come against the men of this sinful world?

Far less do notions of a right to liberty and a right to pursue happiness seem defensible. Far better to speak of our obligations toward God and consequently toward one another, both individually and corporately. Do we somehow imagine we can protect the unborn by an appeal to an abstract right to life in a society that is unmoved by an appeal to the authority of the living God?

The notion of babies brought to birth and raised by the state alone is terrifying and seems all too plausible. The state's role in raising children, first through compulsory education laws and taxpayer-supported government schools, more recently through government daycare and preschools, already encompasses all of childhood for many children.

[GL]

Alleluia!

Supreme Court upholds 'partial-birth' abortion ban

I checked the Supreme Court's web site. The opinion has not yet been posted. I will provide a link to it as soon as it is.

[GL]

See Gonzales v. Carhart. I do not have the time to read the opinion until later today, but hopefully there will be some language in it that will give us all hope for more of the same in the future!

Alleluia!

[Stuart Koehl]

>>>Supreme Court upholds 'partial-birth' abortion ban<<<

Aside from the providential aspects of the ruling, it must have been very satisfying to see Ruth Bader Ginsberg "bitterly" gnawing on her own liver.

[Stuart Koehl]

Bits and pieces of the decision and the dissent are coming up on the web. Here is the heart of Ginsberg's "pound the table" dissent--not up to Scalia standards by any means:

"The Court’s decision refuses to take Casey and Stenberg seriously. A health exception is necessary. The Court blurs the line between pre-viability and post-viability. Its holding regarding facial challenges is inconsistent with precedent. The only redemptive feature of the opinion is that as-applied challenges may proceed."

Here is a summary of the majority opinion by Justice Kennedy:

1. We apply the balance struck in Planned Parenthood v. Casey. (Slip op. at 14-16.)

2. The federal Partial-Birth Abortion Ban Act of 2003 is not void for vagueness, does not impose an undue burden, and is not facially invalid.

a. The Act is not unconstitutionally vague. (Slip op. at 18-20.) It provides doctors of ordinary intelligence a reasonable opportunity to know what is prohibited, and its intent requirement further alleviates any vagueness concerns and prevents against arbitrary enforcement.

b. The Act does not impose an undue burden. (Slip op. at 20-26.) Its reach is limited to physicians who carry out the intact D&E after intending at the outset both to deliver the fetus until its head lodges in the cervix and to pierce or crush the fetal skull. It does not apply to D&Es in which the doctor intends from the outset to remove the fetus in pieces. The Act differs in this respect from the Nebraska statute struck down in Stenberg v. Carhart. The identification of specific anatomical landmarks and the inclusion of an overt-act requirement also distinguish the Act from the Nebraska statute. Also, the canon of constitutional avoidance, which “has, in the past, fallen by the wayside when the Court confronted a statute regulating abortion,” also calls for us to give a statute a reasonable construction that would save it from unconstitutionality.

c. The Act does not on its face impose a substantial obstacle to late-term, but pre-viability, abortions. (Slip op. at 26-37.) The Act expresses respect for the dignity of human life and advances the interest in protecting the integrity of the medical profession. These are legitimate objectives under Casey. Casey’s requirement of a health exception cannot be tantamount to allowing a doctor to choose the abortion method he prefers. “Where it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to bar certain procedures and substitute others.”

The Act’s ban on abortions that involve partial delivery of a living fetus furthers the government’s legitimate objectives. The government has an interest in countering the likelihood that some doctors may prefer not to disclose precise details of intact D&E and may thereby cause greater grief to the “mother who comes to regret her choice to abort.”

Under precedents that we assume to be controlling, the Act would be unconstitutional if it subjected women to significant health risks. There is documented medical disagreement on this question. In the face of this uncertainty and given the availability of other abortion procedures that are considered to be safe alternatives, the Court’s precedents instruct that the Act survives a facial attack.

3. These facial attacks should not have been entertained in the first instance. The proper means to consider exceptions is by as-applied challenge. (Slip op. at 37-38.)

A pdf of the ruling can be found here: www.scotusblog.com/movabletype/archives/05-380_All.pdf

Apprently Thomas and Scalia concurred, but wrote their own one page concurrence, which Ed Whelan summarized as follows:

"In a one-paragraph concurrence (joined by Justice Scalia), Justice Thomas makes two points: (1) The Court’s abortion jurisprudence has no basis in the Constitution. (2) The question whether the Act is a permissible exercise of Congress’s Commerce Clause power was not before the Court. "

[GL]

It would be a lot easier to teach Supreme Court cases if all jurists were as concise and to the point as Justices Thomas and Scalia.

[GL]

I spent my lunch reading the opinions in Gonzales v. Carhart. The majority decision is a narrow one, but that it hints of more in the future (should the Court remain as is) is demonstrated by the fears expressed by Justice Ginsburg in her dissent:

The Court offers flimsy and transparent justifications for upholding a nationwide ban on intact D&E sans any exception to safeguard a women’s health. Today’s ruling, the Court declares, advances “a premise central to [Casey ‘s] conclusion” i.e., the Government’s “legitimate and substantial interest in preserving and promoting fetal life.” * * * But the Act’scarcely furthers that interest: The law saves not a single fetus from destruction, for it targets only a method of performing abortion.

* * *

As another reason for upholding the ban, the Court emphasizes that the Act does not proscribe the nonintact D&E procedure. See ante, at 34. But why not, one might ask. Nonintact D&E could equally be characterized as “brutal,” ante, at 26, involving as it does “tear[ing] [a fetus] apart” and “ripp[ing] off” its limbs, ante, at 4, 6. “[T]he notion that either of these two equally gruesome procedures . . . is more akin to infanticide than the other, or that the State furthers any legitimate interest by banning one but not the other, is simply irrational.” Stenberg, 530 U. S., at 946 947 (STEVENS, J., concurring).

Delivery of an intact, albeit nonviable, fetus warrants special condemnation, the Court maintains, because a fetus that is not dismembered resembles an infant. Ante, at 28. But so, too, does a fetus delivered intact after it is terminated by injection a day or two before the surgical evacuation, ante, at 5, 34 35, or a fetus delivered through medical induction or cesarean, ante, at 9. Yet, the avail- ability of those procedures along with D&E by dismemberment the Court says, saves the ban on intact D&E from a declaration of unconstitutionality. * * *

Ultimately, the Court admits that “moral concerns” are at work, concerns that could yield prohibitions on any abortion.

* * *

One wonders how long a line that saves no fetus from destruction will hold in face of the Court’s “moral concerns.” See supra, at 15; cf. ante, at 16 (noting that “[i]n this litigation” the Attorney General “does not dispute that the Act would impose an undue burden if it covered standard D&E”). The Court’s hostility to the right Roe and Casey secured is not concealed. Throughout, the opinion refers to obstetrician-gynecologists and surgeons who perform abortions not by the titles of their medical specialties, but by the pejorative label “abortion doctor.” Ante, at 14, 24, 25, 31, 33. A fetus is described as an “unborn child,” and as a “baby,” ante, at 3, 8; second-trimester, previability abortions are referred to as “late-term,” ante, at 26; and the reasoned medical judgments of highly trained doctors are dismissed as “preferences” motivated by “mere convenience,” ante, at 3, 37. Instead of the heightened scrutiny we have previously applied, the Court determines that a “rational” ground is enough to uphold the Act, ante, at 28, 37. And, most troubling, Casey’s principles, confirming the continuing vitality of “the essential holding of Roe,” are merely “assume[d]” for the moment, ante, at 15, 31, rather than “retained” or “reaffirmed,” Casey, 505 U. S., at 846.

Let us hope that Justice Ginsburg's fears are well-founded. That Justice Kennedy wrote the majority opinion is a hopeful sign. He has been a swing vote on abortion cases. Had he voted differently in Casey, Roe might have died a well-deserved death years ago. Undoubtedly, that is why Chief Justice Roberts assigned him to write this opinion. His vote was absolutely essential.

When Justice Ginsburg writes:

As another reason for upholding the ban, the Court emphasizes that the Act does not proscribe the nonintact D&E procedure. See ante, at 34. But why not, one might ask. Nonintact D&E could equally be characterized as “brutal,” ante, at 26, involving as it does “tear[ing] [a fetus] apart” and “ripp[ing] off” its limbs, ante, at 4, 6. “[T]he notion that either of these two equally gruesome procedures . . . is more akin to infanticide than the other, or that the State furthers any legitimate interest by banning one but not the other, is simply irrational,”

I answer her question with a question, "Why not, indeed?" Let us pray that the day comes soon when the Court takes her criticism and does exactly what she suggests, though in the face of her dissent.

(I apologize for lack of italics, etc., but this is a cut-and-paste from the pdf. By the way, Supreme Court opinions are not protected by copyright.)

[Stuart Koehl]

>>>Had he voted differently in Casey, Roe might have died a well-deserved death years ago.<<<

My understanding is Kennedy was extremely upset with the way in which Casey was interpreted by lower courts and used by the Supreme Court to effectively permit abortion on demand.

[GL]

My understanding is Kennedy was extremely upset with the way in which Casey was interpreted by lower courts and used by the Supreme Court to effectively permit abortion on demand.

I was unaware of that, but there is certainly language in Carhart which indicates that he sees it as perfectly consistent with Casey. For instance (and in a very hopeful section of the opinion), Kennedy writes:

“[T]he elementary rule is that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.’ (Citations omitted.) It is true this longstanding maxim of statutory interpretation has, in the past, fallen by the wayside when the Court confronted a statute regulating abortion. The Court at times employed an antagonistic “ ‘canon of construction under which in cases involving abortion, a permissible reading of a statute [was] to be avoided at all costs.’ ”(Citations omitted.) Casey put this novel statutory approach to rest. (Emphasis added.)

Here, Kennedy appears to say that abortion statutes should be interpreted, as are all other statutes, so as to render them constitutional if possible and that the past practice has been just the opposite. That one change alone would increase the likelihood that future restrictions on abortions would be upheld.

[GL]

Commentary from Senator Obama on the VT shootings (issued by Obama on Monday) and the Court's decision upholding the partial birth abortion ban (issued by Obama on Wednesday):

"I hope that it (the shooting at VA Tech) causes us to reflect a little bit more broadly on the degree to which we do accept violence n various forms all the time in our society. We glorify it. We encourage it. We ignore it. And, it's heartbreaking and it needs to stop."

“I strongly disagree with today’s Supreme Court ruling, which dramatically departs from previous precedents safeguarding the health of pregnant women. As Justice Ginsburg emphasized in her dissenting opinion, this ruling signals an alarming willingness on the part of the conservative majority to disregard its prior rulings respecting a woman’s medical concerns and the very personal decisions between a doctor and patient. I am extremely concerned that this ruling will embolden state legislatures to enact further measures to restrict a woman's right to choose, and that the conservative Supreme Court justices will look for other opportunities to erode Roe v. Wade, which is established federal law and a matter of equal rights for women.”

There appears to be no problem with consistencies (foolish or otherwise) on Senator Obama's part.

[Judy Warner]

Completely consistent, GL. Whatever will keep him in good standing with the leftist Hollywood types, bloggers, etc. Not principled, but consistent. All the while telling us that cynicism is our worst problem.