Within the camp of conservatives, the most cautious opponents of Roe v. Wade have stopped well short of arguing that the protections of the Constitution may actually extend to cover those "persons" in the womb. The conservative lawyers have been content to argue that the Constitution itself says nothing about a "right to abortion." In overturning Roe v. Wade , they would return the matter to the States. And there, before Roe v. Wade , most of the States were inclined to keep the protections for the unborn child that had been in place, as part of the common law, even before the American Revolution. But if the matter of abortion were returned now to the states, New York, New Jersey, California, Illinois and others are likely to enact laws on abortion that are quite expansive. And yet the epiphany waiting to be discovered is that even these states are likely to face some serious internal resistance if they sought to enact a right to abortion as sweeping, as unqualified, as the right to abortion that has been shaped by the Supreme Court.
Some of us, professors and writers, have argued that the principles that support the defense of the unborn child have a much wider reach. We think a case could be made that the deep principles of the Constitution, even beyond the Fourteenth Amendment, would extend the protections of the Constitution to the child in the womb. And even if the states became more active in defense of the unborn child, the federal government could not escape the need to address the issue. There is the obvious matter of the practice of abortion in the diplomatic and military outposts abroad, and in the District of Columbia. There is the question of whether the National Institutes of Health should make use of tissues drawn from fetuses in elective, not spontaneous, abortions. But apart from all that, a problem that emanated from the center¯from the highest federal court¯may require leadership from the center in undoing the problem. As we’ve seen with the federal law on partial-birth abortion, the sustaining of that law by the Supreme Court has provided both the cover and the encouragement for legislatures in the states to enact the same laws. And with that move, the legislators gain a critical practice in legislating again on abortion. Once the issue is opened, one step does indeed beget another.
Still, the lawyers who meet in the Federalist Society have been content, by and large, to return the matter to the states, and others of us have been content to focus on that move as one of the most critical steps in returning the matter of abortion to the political arena, where it becomes the object of discussion again among ordinary folk.
But now the surprise of the season. The pro-life lawyers are still wringing their hands, calculating that they will need one more vote on the Court, one more retirement, before Roe v. Wade can be overturned. The holding in Gonzales v. Carhart was the narrowest of holdings: The Court mainly blocked the move in the lower courts to strike down laws on abortion in facial challenges. The holding may not work actually to save any lives. With this one grisly form of abortion barred, the abortionists may simply return to older, familiar methods of killing a child in the womb, whether by poisoning or dismemberment. But the decision of the Court was momentous, for it sustained the federal act as the second legislative act that would restrict abortions. (The first was actually the Born-Alive Infants’ Protection Act in 2002, an act that essentially bans the "live-birth" abortion, in which a child is delivered alive and put aside to die.)
And yet even that modest bill, with that narrow holding, was quite enough to spook the partisans of abortion. They have seen, in Gonzales v. Carhart , a major step to the overruling of Roe . And that has spurred them now to seek legislation in the states to enact, in a statute, the rights of abortion articulated in Roe and its sequelae . But, as they do that, they would have brought about what the conservative lawyers have been proclaiming for years as their main, strategic objective; the objective for which they are still awaiting another retirement from the Court, and another battle over confirmation.
And so Governor Spitzer in New York has declared his intention of seeking a statute to protect the right to abortion against a Supreme Court that can no longer be trusted. A similar move is afoot in Maryland, and we can count on the liberal chorus quickly picking up this tune.
But behold: With this panicky recoil from the holding in Carhart , the liberals are now behind the push to have the states start legislating again on abortion. With each move, they affirm the premise that the legislatures may indeed legislate on this subject. Their aim, of course, is to vindicate the right to abortion, but they will find that, as they try to shape that right, they will also be marking, unavoidably, the limits of abortion. And those limits, they will discover, will be drawn far less broadly than any "limits" that can be found in the law of abortion as it has been shaped by the federal courts. The champions of abortion rights fancy they are taking the initiative, resisting the Court that has been altered now by the presence of John Roberts and Samuel Alito. But in the face of these initiatives, the pro-life side might well bring back that old line from Br’er Rabbit in the Uncle Remus stories: "Please don’t throw me in that briar patch." But, of course, Br’er Rabbit, in the briar patch, was in his element. For the liberals to bring the issue of abortion into the arena of politics, in the legislatures, is to bring us into the briar patch, where they are likely to suffer some disagreeable surprises.
For once the issue is opened, the pro-life side can readily bring forward a host of amendments, containing serious restrictions on abortion that are supported even by people who call themselves pro-choice. Most people in the country are opposed to abortions late in the pregnancy, and most have been unaware that, under Roe , abortions could be performed throughout the entire length of the pregnancy. For the pro-lifers, the quibbling over trimesters touches no issue of principle, for the child does not undergo any change in species, or any morally relevant change, in the shift from the first trimester to a later one. Still, a deliberation in a legislature, even in New York or New Jersey, may find legislators trying to confine, or pretend to confine, abortions to the first trimester. But once that move is made, they would be open to the move to forbid abortion after the first evidence of a beating heart. In one recent survey, 62 percent of the respondents professed to be opposed to abortion after the evidence of a beating heart. Most people in the survey probably did not know that a beating heart can be picked up as early as twenty-two days after conception, using ultrasound. At nine or ten weeks, the heartbeat can be picked up even more quickly, and that would still be within that first trimester. After that, the pro-life legislators could pick up on Justice Kennedy’s virtual invitation, in Carhart , to consider some gentle but useful schemes of "informed consent." A right to abortion is still consistent with the understanding that a choice made in ignorance is not a voluntary choice. Patients could be asked if they wished to see sonograms of the child in the womb. And as James Q. Wilson has long argued, people seeing a fetus of only eight to ten weeks will see what they clearly recognize as a baby.
But once the matter is opened in this way, many other provisions will quickly spring forth. Most people surveyed have been opposed to abortions in cases in which the child might be deaf. And that kind of concern quickly brings the matter under the whole scheme of legislation dealing with discriminations against the disabled. Ordinary folk, not burdened with a legal education, will readily grasp that from a person’s disability we cannot draw moral inferences: We cannot say that a person afflicted with deafness or Down’s syndrome deserves to die because he has a life not worth living. We would not kill those people we can see, afflicted with Down’s syndrome; why would that condition supply a ground of justification for killing a child in the womb?
But these and other questions are simply bound to come forth as soon as the issue is opened; and the liberals, in their fury over Gonzales v. Carhart , seem resolved to bring the issue into the open arena of the legislatures. Blinded by their own passions, they don’t seem to recognize that they are doing the work of their own adversaries. They find themselves backing into a kind of jujitsu, but their blindness may be matched by the slowness of the pro-lifers in recognizing what is before them: that in playing defense here, they can enjoy some powerful leverage.
The melancholy side of this situation is that the pro-life side should be playing defense at all. In the aftermath of Gonzales v. Carhart , a pro-life president could have induced real strains in his adversaries by offering a moderate follow-up to the case: Even many Democrats, including Harry Reid, voted for the federal bill on partial-birth abortion, a bill containing criminal penalties. Mr. Bush could have come forward with the proposal that we enforce the bill with measures short of criminal penalties: We could simply withdraw federal funds from all hospitals and clinics that housed the surgery. That measure, too, would command massive support in the country. Even people who regard abortion as a legitimate "personal" choice have been unwilling to regard it as "public good" that has to be paid for by everyone else. And yet, with a step of that kind, the president would throw the pro-abortion party into the most grievous tensions. The Democrats surely know that, if Congress could use its power over spending to restrict abortions, it could legislate on abortions every step of the way, without even appearing to legislate. After all, if hospitals and clinics do not accept the federal money, they are still free to do the surgeries and put the burden of litigation on the government. But if the Democrats resist, they resist on a terrain that is heavily, sharply tilted against them.
All of this might have taken place if there were a White House genuinely interested in taking even modest initiatives in advancing the pro-life argument. But quite apart from the aversion of this president to doing that sort of thing, there is the most curious want of political reflexes. Any move of this kind taken by the president creates strain for the Democrats in Congress. And any strain for the opposition will impair them on other matters as well. It would keep them off balance in dealing with the war in Iraq, or in their campaign to bring down the U.S. Attorney General, or to undercut the measures of this administration in waging the war against terrorism. We may count this as the season of paths newly opened, of leverage newly discovered. But it is also the season of unfolding revelations about an administration that will not defend its own measures or its own people, and that declines to take costless initiatives, even when they would divide its enemies and hearten its friends. It is the season of deficits in political leadership, made ever clearer with each passing week.
Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College and one of the authors of the Born-Alive Infants’ Protection Act.