Natural Rights & the Right to Choose

The anti-abortion movement has been struggling since 1992, when the Supreme Court reaffirmed Roe v. Wade and the country elected a President who supported abortion rights. These combined events broke the heart of a movement that had seemed on the verge of eliminating the unrestricted abortion license and returning the issue to the legislative arena. What does a movement do when even its intermediary goals become unattainable? With the majority of Supreme Court Justices and the new President strongly committed to abortion rights, the anti-abortion movement appeared doomed to irrelevance.

Natural Rights & the Right to Choose, can be seen as an account of these wilderness years of the anti-abortion movement. The book combines Professor Arkes’ political philosophy of natural rights with memoir-like accounts of the politics of abortion during these years. It offers an account of the jurisprudence and politics of abortion from the perspective of a political philosopher committed to a highly principled and reason-based theory of natural rights.

The juxtaposition of Prof. Arkes’ political philosophy with the jurisprudence and politics of abortion is occasionally jarring. While his political philosophy is immersed in rational argumentation and claims of universal principle, the jurisprudence and politics of abortion is, by contrast, characterized by irrational assertions, the distortion of scientific and medical facts, short-term political concerns, and clashing claims of liberty and equality. It is no wonder that Arkes is horrified by what he finds. He could hardly have picked a world more contrary to his own principles.

Arkes believes in a rational discourse that can enumerate and build upon universal first principles. He associates his own views with those of the Declaration of Independence, the Founders, and Lincoln’s antislavery views. His theory of “natural rights” is premised on natural law, and hence views rights from the perspective of a fundamental moral framework. It is a classical American theory, filled with confidence in the capacity of the human mind to discern fundamental principles, apply them to contemporary circumstances, and act accordingly.

Arkes emphasizes the difference between his own theory of natural rights and the one to which abortion rights advocates appeal. He does so in order to argue that the American Republic is imperiled by a philosophical fall from reason. His argument is not merely about the substance of the abortion debate, but rather about argument itself, and particularly about the lack of faith in reason among most contemporary politicians, judges, and academics, whether liberal or conservative, pro-life or pro-choice. Arkes’ claim is therefore that the decline of the pro-life cause signifies a deeper decline from the fundamental political principles of the nation.

It is unfortunately typical of contemporary political movements to suggest that the fate of the Republic rests on the success or failure of their movement. Both sides in the abortion debate tend to argue in these terms, although the relative success of the abortion rights movement mutes their sporadic attempts to invoke such a crisis. For the pro-life movement, it has been common to compare its cause to that of the antislavery and civil rights movements. Arkes does so himself, frequently invoking Lincoln’s antislavery rhetoric. In these ways, Arkes’ book is not merely an account of abortion politics, but is itself a typical reflection of that politics.

Yet Arkes is not merely another pro-life activist lamenting abortion rights victories. He is also an individual deeply committed to a belief in a reason-based political philosophy, quite apart from his views on abortion. Indeed, it is necessary to his own theory that he be committed above all to first principles, prior to their immediate political or policy applications. Arkes, in short, really believes his own “sky is falling” rhetoric, and not merely because his preferred cause is on the political ropes.

Of course Arkes is correct that any theory of “rights” filled with as much irrationality, deception, and self-contradiction as that employed in defense of partial-birth abortion will be unreliable for defending liberty. It could be hoped that even many abortion rights advocates would not find much inspiration in their movement’s response to partial-birth abortion, or infanticide consequent to attempted abortion. Pointing to logical holes in the politics and jurisprudence of partial-birth abortion advocacy is almost too easy, particularly for a skilled analyst like Arkes.

The difficulty is not that Arkes has aimed at a straw man, because unfortunately abortion rights judges, politicians, academics, and activists have indeed sometimes sunk to the low levels of discourse he describes. Rather, Arkes’ juxtapositions between rational natural rights theory and irrational abortion politics, and between the philosophical heights of the Founders and the calculated pragmatism of today, raise myriad questions.

One group of questions arises from his appeal to a golden age of reason, civility, and morality. Why, for example, if the Founders were such exemplars of reason and moral clarity, did they compromise on slavery? If Lincoln so clearly won the argument on race through simple, rational argumentation, why did the nation so quickly regress after the Civil War to a system of white supremacy and segregation? If jurisprudence was so clearly superior at the founding, and indeed before the modern era of moral relativism, then why are so many judicial opinions of earlier eras filled with logical flaws and result-oriented pragmatism? It may be fallacious, in other words, to compare the best of the past—the Declaration of Independence and Lincoln—to the worst of the present.

A further set of difficulties follows from Arkes’ juxtaposition of evil theories of relativism and skepticism, which produce social evils such as slavery and abortion, to good theories of natural law and natural rights, which are apparently supposed to produce goods such as abolition and protection for the weak and defenseless. Take, for example, Arkes’ identification of Senator Stephen Douglas’ relativism with the essence of the proslavery position. While Arkes’ portrayal of the proslavery position as based on moral relativism advances his argument, it ignores the fact that between 1830 and 1860 the South was awash in numerous natural law/natural rights theories that viewed slavery and white supremacy as consistent with both nature and nature’s God. It is typical of natural law theorists that they see evil emanating from skepticism, while it is typical of skeptics that they see evil emanating from absolutes. Both can point to their own historical and contemporary examples.

These difficulties do not undermine Arkes’ critique of the worst of abortion rights advocacy and the presumptuous relativism current among modern elites. These difficulties do, however, undermine his claims that things today are really worse, in every fundamental way, than they were in the past. Doubtless, some things are worse than they used to be, and the legal regime of near-absolute abortion rights is one of those. However, some things are in fact better than they were for most of American history—such as, for example, the treatment of racial and religious minorities within the United States.

Even if Arkes could demonstrate that prior generations wore their certitudes on their sleeves (while suppressing their self-interest), and that the current generation flaunts its skepticism and self-interest (while hiding its certitudes, perhaps even from itself), it would not prove that the Republic has undergone a fundamental decline. We are skeptical today of self-evident truths in part because they have so often been abused and misapplied. We are skeptical of reason because we are more keenly aware of how our self-interest distorts and limits our reason and perception. Perhaps, instead of having undergone a decline, we have become somewhat more modest in our willingness to make certain kinds of grand claims for our (often self-interested) positions. Or perhaps some have merely recast certitude into a different language, the (unfortunately impoverished) ideological languages of the political right and left.

One can hope, with Prof. Arkes, for a return to America’s traditional natural law/natural rights discourse, while also recognizing that such a return would pose dangers of its own. Human beings have innumerable ways to distort the truth. Even if we immediately restored the preeminence of natural rights/natural law discourse to our national jurisprudence and politics, abortion rights activists would still find ways of justifying the abortion right in that mode of discourse, just as prior generations justified the enslavement of African Americans through invoking God, the nature of things, and the Bible.

No one movement, then, has the right to declare the Fall of America or the death of the Founders’ vision. Indeed, the American experiment has grown to the point where our relatively young nation is of vital significance to the entire world. The meaning of America has become the world’s concern, and those who focus only on a single issue like abortion may miss participating in other, deeply important matters.

An anti-abortion movement that wishes to equate itself with the antislavery movement of another day must learn history’s lesson of patience. It must also take careful note of the crucial differences between slavery and abortion. Slavery and race divided the nation geographically and concerned deeply entrenched economic interests. Abolitionism failed as a political cause, and only the unintended consequences of regional secession ended slavery. In contrast, abortion engages deeply rooted cultural issues concerning sexuality, family, and gender. Although abortion rates and attitudes vary geographically, we can expect no fundamental geographic division and no literal civil war to resolve the issue. We are unlikely to get abortion right until we come closer to getting things right on broader matters of culture. This promises to be a long struggle, with no immediate prospect for success. The political pro-life movement kept its nerve during its decade of defeat, and it is no time now for that movement to be digging joint graves for the nation and itself.

David M. Smolin is Professor of Law at Cumberland Law School, Samford University.