About two weeks ago, I wrote an article about the Texas abortion law that was then being argued before the Supreme Court. I looked forward to the Court perhaps finally overturning the poorly reasoned Roe v. Wade decision and what that likely would entail.
Before Roe, abortion law, like murder law, was decided by the states, mostly by their legislatures. Were Roe to be simply overturned, then the result would be a return to the status quo ante Roe — the states would again be free to legislate as they saw fit. This would be a welcome improvement over the nationwide ban on laws protecting early fetal life.
I welcomed that possibility. The Roe decision was the Warren Court at its most hubristic — and that is saying a lot. Years of trenchant arguments by Justice Antonin Scalia and others took the glitter off the Warren Court and exposed the extreme nature of some of its arguments and the danger of its practice of legislating from the bench. The majority in Roe purported to find a constitutional right to abortion in the right to privacy they had asserted in Griswold some years earlier, although neither of those rights is mentioned at all in the Constitution. Taking the shadowy penumbra-reasoning from Griswold as a bright guiding star, the Warren Court majority effectively legislated a new federal statute that overruled laws on the books in most of the states. And conveniently, being the Supreme Court, their legislation, unlike any other in America, was not subject to judicial review.
It would be great to be done with that! No reason not to be glad.
A whole other way of looking at it was raised by Austin Stone with passion and vigor in his American Spectator article, “For Pro-Lifers, Abortion Should Not Be a States’ Rights Issue” of December 13. Feeling that it is time to go beyond tactics and think in terms of overall strategy, he made a sharp distinction between pro-life support predicated on the natural law/divine law argument of the sanctity of all life and all other arguments which are based on points more fashionable but also more ephemeral. Pulling no punches, he proposed that laws not based on the outright recognition that fetal life must be protected are not based on reality and as a result, “do more harm than good, even when they save infant lives.”
Stone has a wonderfully clear case that the law we make through our legislatures or our courts is not necessarily good or moral just for the mere fact of it being law. Positive law, the law that we humans make, has to ultimately conform to a larger good and a larger truth in order to be legitimate. When the Nuremberg laws and the Jim Crow laws are still clear in our minds, it is hard to make the case that just because a sovereign state has followed its own procedures to make a law that the law is necessarily good or just.
That is the gist of the argument in the Declaration of Independence. No one doubted that the various intolerable acts were in fact positive law. The Declaration’s point was that those laws violated something deeper, of the constitution of “Nature and Nature’s God.” Since Britain’s government trampled on rights that were given by God and are by that nature unalienable (unable to be removed from us), we no longer were bound in truth by its laws. We could now establish our own sovereignty, and when we formalized it in our Constitution, we gave formal protection to those rights which we believe cannot properly be infringed by any human government.
Prime among those rights, and literally first in the Declaration, is the right to life, for, without life, liberty and the pursuit of happiness are impossible. If we forget this, we do harm to our argument, more harm than good.
But here is where I must differ with Stone’s argument, though with good hope of persuading him of my point.
But first, my agreements, which are deeper than my differences.
I do agree with him that unborn life is protected by divine law (to clarify, I am following John Selden in identifying natural law with divine law). Yet Americans properly subject divine law arguments to strict scrutiny, for such arguments have been so often abused. The Founders were justly concerned about such arguments and wanted to avoid the bloody strife from wars over religion that so plagued Europe. Therefore, they did not allow any religion to be established, giving its take on divine law preference over others and thus giving it the final say over all law, as divine law’s authority is greater by definition than any law produced by a human government. Divine law was left to work through its rule on citizens individually. And without that input from moral and religious citizens, as John Adams noted (appropriately cited by Stone), the Constitution cannot work.
This is how I understand Stone’s powerful argument: if we merely get a correction of a faulty legal decision but we do not address the far greater issue of removal of the Constitution from the moral and religious base that alone enables it to work properly, we have missed the main fight and we may lose the whole war.
But Stone did mix something else into his vital argument that needs correction, an overstep that does harm to the goal. For the goal of divine law is that it actually governs our behavior; the fashioning of a good argument and a proper understanding helps to achieve that goal, but is not the final aim. As a subsidiary good, the argument’s worth is measured by how much it helps us to achieve the desired end. Therefore, when Stone states categorically that “Laws that are not based on reality do more harm than good, even when they save infant lives,” he has overstepped. Our first and final goal is to save those lives. That always takes precedence over the arguments, whose value is in the end measured by how well they produce the required end, the protection of life.
I agree with Stone that our goals must be determined by divine law. I agree that arguments that do not base themselves on that firmest of foundations are, in the abstract realm in which the battle of ideas is conducted, not the best arguments. But such arguments, if they save even a single infant’s life, have done in actuality what even the finest of abstract arguments only do potentially. An actual life was saved. Whatever argument saves that life is the one that was right at that moment and for that life. And there is no life that is not of infinite value and any argument that preserves that infinite value demonstrates a value nearly as real and irreplaceable as that life it was instrumental in saving.
Law systems generally recognize that almost all laws are suspended when it comes to saving a life from danger. Someone dying from starvation may take food not their own to save their life. Someone may kill someone else who is threatening their own life.
In Jewish law, this choosing of life is considered to be of deep religious significance. The Talmud describes a case in which a man sees a woman drowning in a river and refuses to try to help because it would be immodest to grab hold of her or to even look at her. The rabbis call this man a pious idiot. The great legal codifier Moses Maimonides goes further and rules that anyone who does not put aside their abstract dedication to the law in order to save lives in immediate danger profanes the holy Name of God.
A more modern take on the philosophical issue involved was offered by the mathematician-philosopher Alfred North Whitehead, who criticized our modern world’s tendency to mistake our ideas for the concrete reality of the world. Our lives are not abstractions, and the actual world always exceeds our grasp. It is wonderful to think deeply about giving charity and to talk about it, but no poor person was fed by the talk and by the idea. As important as it is to get our ideas and mental models right, it is more important by far to have the actual act of saving life than the correct thought about how to argue for saving it.
But both of those things are important. Without clear ideas, we are not at our best when we talk about this with others and try to persuade them to help protect lives. Without clear ideas, we most likely cannot prevail in changing the hearts of enough people to see the truth and the necessity of strongly protecting unborn human life. Especially if we are talking about the super-majority we must achieve to pass the constitutional amendment Stone proposes, there is a whole lot of persuasion that is needed. We will have to more than simply claim divine authority and make an argument in the abstract. We will have to win the hearts and minds of very many people to whom right now this way of thinking seems foreign. We will have to overcome the natural reticence of people to give divine authority to any law.
But the story of Stone’s own life is the story of a concrete action. He movingly tells of his own life being one spared from being ended by the abortionist. His life was saved — the very fact of that. That moves people. And once they move, the thought of this being a divine law that reflects the reality of Nature and its God becomes something not so strange, something close to the heart.
Let us not be so particular in what argument brings about the result that we must achieve. Placing the actuality of saved lives before the abstractions will help us think more clearly and communicate better. It will welcome allies and draw them in ever more deeply to the underlying truth, instead of excluding them before they can learn. Together, accepting our responsibility to teach and communicate, we can reach the holy goal of universal protection of life.
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