Whither Future of Abortion Law

Richard M. Reinsch II / July 23, 2022

Hadley Arkes, a longtime commentator on abortion, natural law, and constitutional jurisprudence, joins “The Daily Signal Podcast” to discuss the arguments that should be made to defend unborn human life in America.

Arkes notes that the term “value judgment … is a term that we began to use with Nietzsche. When people lost their confidence that they could speak about moral truth. So, they could speak about things [that] have moral significance as we impart value to them.”

“So, the matter of the value judgment is whether some of us, what do we care enough about? How much are we willing to value the life of that offspring in the womb? How much do we value the efforts to offer care for that life?”

Arkes points the way to a principled defense of unborn human life that average citizens, legislators, and judges can draw upon to instill the principle of equality for the unborn under law in America.

Listen to the podcast below or read the lightly edited transcript:

Richard Reinsch: Hello, I’m Richard Reinsch. Welcome to “The Daily Signal Podcast.” Today, we’re talking with Hadley Arkes, an American political scientist and Edward Ney professor of jurisprudence and American institutions emeritus at Amherst College, where he has taught since 1966. He is the founder and director of the James Wilson Institute on Natural Rights and the American Founding.

Hadley, thank you so much for joining us to talk about this recent [Dobbs v. Jackson Women’s Health Organization] decision and the future of abortion policy and jurisprudence in American law.

Hadley Arkes: Well, thanks. So good to see you, Richard. Thanks so much for having me on.

Reinsch: Hadley, a question here at the beginning. You are a well-known writer, legal philosophical commentator on the Constitution and on what you argue for, the natural law underpinnings of the Constitution. You’ve written extensively about abortion for decades. When the Dobbs decision was handed down on June 24th, this past month, what went through your mind? What about this moment? What did you experience?

Arkes: Well, it was, of course, with any reservations we may have about it, a great moment. I was active in this movement just before Roe v. Wade. And it was hard to imagine that this thing would come down even in our lifetimes. It took, let’s see, 11 Republican appointments after Roe v. Wade finally to get five votes willing to do this.

The point of this appointment, it runs back to those lawyers in Roe v. Wade. Those lawyers from Texas, who assembled the most elegant brief, drawing on the updated findings of embryology, woven with principled reasoning, to make this critical point. That offspring in the womb has never been anything other than human from its first moments. That it receives its nourishment from its mother, but has never been really a part of the mother. Well, the dissenters in Roe never spoke those words.

The point of this appointment for me, and the source of regret and foreboding here, is that the conservative majority in Dobbs did not speak those words. It sent the matter back to the states on the premise expressed by Justice [Brett] Kavanaugh that we cannot know that the fetus represents a human life. We begin with that point of official ignorance upon this matter. We sent it back to the states on the premise put in place, in fact, by [the now-deceased] Justice [Antonin] Scalia, that we leave it to people in the separate states to reach their own value judgment on when human life begins.

Now, value judgment, as you remember, is a term that we began to use with Nietzsche. When people lost their confidence that they could speak about moral truth. So, they could speak about things, have moral significance as we impart value to them. So, the matter of the value judgment is whether some of us, what do we care enough about? How much are we willing to value the life of that offspring in the womb? How much do we value the efforts to offer care for that life? Well, that was missing.

I’ve said that this decision, I compare it to the Emancipation Proclamation. That Lincoln could not free the slaves in the border states. But everyone understood that what brought the Emancipation Proclamation forward was a strong anti-slavery conviction. And that’s the way it was understood. So, my hope is that this decision, so artfully done by Justice [Samuel] Alito, will generate that kind of energy for the pro-life side.

Reinsch: Hadley, you had an essay in First Things the day that the Dobbs opinion was issued titled “The End of the Beginning of the End of Abortion.” And you’ve been articulating here that the decision sends abortion policy back to the states. You are an author of a number of books, important books, on natural law, natural rights, and the Constitution. One that’s meant a lot to me, “First Things,” as well as “Natural Rights and the Right to Choose,” which is very much about abortion, and “Constitutional Illusions and Anchoring Truths.”

It is now the opportunity, though, for those in the state legislatures to step forward and make these natural law, natural rights arguments on behalf of the unborn in a republican process. It seems to me that that takes more time, more courage, more thought, but might be more consistent with the republican institutions of our government.

Arkes: Well, it is a fine moment. And you might say that … we will have those laws in the pro-life states. Casting protections on the child from the first moments. Those laws are sure to be challenged by the defendants of abortion. And when they are, the conservative judges will no longer have that vassal test of viability.

Justice Alito did away with that. He raised the question of, why is it we impute value to the life of the child after viability, but don’t respect that life before viability? In other words, he’s telling us that these lives make no difference. That we’re dealing with the same entity. The same small human being simply going through different phases. So, it makes no sense to be speaking of 15 weeks, seven weeks.

Now, my sense, Richard, is that with the conservative judges in the states, and federal judges confronting challenges to those laws in the pro-life states, when they’re faced with that question, then I think the most natural reaction will be to reach out to Justice Alito’s opinion in Dobbs, where he sort of puts the pieces in place for the judges to put them together and think through them.

And at that moment, the judges may be induced to speak the words that the dissenters in Roe never spoke when they were given that marvelous brief for the lawyers from Texas. And the words that the conservative majority in this case consciously omitted saying, steered around saying, about the human standing of that child in the womb. The judges confronting those challenges to the laws of the pro-life states will find themselves, they’ll find that they will have to be speaking those words in order to explain their position.

So, I find that this kind of … the interesting turn of history here. But also I think in the, as you suggest, pushing it into the pro-choice states, into the blue states, opinion there is not as monolithic as we think. I saw some recent surveys saying that 72% of the public in one sample were willing to support this restraint or restriction of abortion at 15 weeks. The kind of provision that was sustained in the case from Mississippi.

We may also have our … Born-Alive Infants Protection Act, to protect the life of child who survives the [abortion]. … Now, that is still the most disarming, most modest bill you could bring forth. We could bring that forth in the blue states. And you may find a kind of crack in the monolith of pro-abortion in those states.

Reinsch: Going back, you said pro-life states or states more inclined to protect, offer protections to the unborn, that those laws will be challenged immediately. Talk about the nature of those challenges. How will they be challenged?

Arkes: Well, simply to say that this is too draconian. What’s the ground in which you would offer protection for the child at that moment? The argument will be, this is simply an imposition of religious conviction behind this conversation. And I mean, Gerard Baker, in The Wall Street Journal, who was really quote “pro-life” in his dispositions, remarked on these statutes, protecting barring abortion early in pregnancy. He said that there were, some of them were too draconian.

Well, why would somebody like that regard that as draconian, if not that people have talked themselves into the position that somehow it makes a difference. But the offspring of the womb has reached the point where it’s more recognizable with all the features, the toes, the squinting, the fingers that we identify with human beings as we know them where they’re fully formed. And somehow abortions earlier, that just don’t have the same kind of significance in removing something we would recognize as a human being.

So, we’re going to hear some kind of version of that. Somehow, it’s too draconian for reasons we cannot quite explain. That after all the, oh, look, the supreme, the defenders, the people who have given us this doctrine of conservative jurisprudence have argued to us that the federal judges can’t make moral judgment about when human life begins. These are matters of value judgements for people in separate states.

We’re not sending the issue back to the states on the premise that there is a human life here. And we’re inviting you to consider how you would reconcile the taking of this human life with your other laws and homicide. The grounds you’d demand in any other case. So, let’s say, it is not being sent back to the states. I was saying, there’s no central truth here that we’re declaring or putting in place as the predicate of the situation now.

It’s a matter of you making value judgements. So, the opponents say, “Oh, this is simply a matter of your opinions. I thought I had a constitutional right. And you’re telling me that I’m losing it as I move from one state to another. And I lose it because 51% of the people around me have a different opinion or belief about when life begins.”

So, the regards in which we’ve sent the matter back to the states sort of invites those kinds of challenge. And they could be met only by someone actually stepping up and speaking that inescapable truth. That even the conservative majority has tried to be careful not to speak.

Reinsch: You have written that you wanted an opinion, and you are, I think, been articulating that in this interview, an opinion from the court that protected human life from the moment of conception, as a constitutional matter. Thus, prohibiting abortion nationally. What’s your constitutional authority for that judgment?

Arkes: Well, that’s not exactly how I would put it. I didn’t expect that to happen. But once you’re clear that we’re dealing with a human life, well, then of course, the 14th Amendment kicks in for the Congress and the federal court to make judgements here.

When the protections of the law are removed from a whole class of human beings. In this case, unborn children, human beings. We saw this at work in the ’40’s, ’50’s, to the ’60’s. As the federal courts worked themselves through the coils of federalism. To explain finally how the federal government could be, and Congress could be more directly involved in protecting black people in the South, when those protections of law were withdrawn. So, now again, Richard, I didn’t think the court would be in position to argue that outright. A number of us have been arguing for years now. For 40 years, some of us.

It’s quite open to Congress, under the 14th Amendment, to recognize after all, what do you do with the human life? The deal is that you’re dealing with the human life. Laws of homicide have never been indifferent to the question of, is it height, weight, how tall it is. The killing of an older man cannot be a worse homicide than the killing of a small child.

But once those things are in place, you say, “Well, what is your problem now?” If you’re creating a virtual license to take life without rendering a justification, in the case of small human beings in the womb, you are adamantly withdrawing the protections of the law from a whole class of human beings.

Now, what is it? I think that it’s unfathomable. People have tended to use that line from Henry James to say that “Some of our friends have made themselves victims of a perplexity from which a single spark of direct perception could have spared them.”

Reinsch: On the 14th Amendment: Many have argued that, person, in that amendment was not, did not incorporate the unborn. So, a fear that it would be an activist move by a federal judiciary that would further inflame opinion, and the move would be to allow it to be settled in the states.

It seems to me that it may not be settled in the states. It may be settled in the Congress. In which case, arguments arguing for this broader understanding of person in the 14th Amendment would inevitably come to the fore.

Arkes: Well, I think it is going to move to Congress. But look, this matter, this is not a person. So, we have people arguing, well, do those protections of the Constitution extend to women? Because extensions matter. Of course, they extend to women. When we’re talking about, those beings were the bearers of rights. Those are human beings. You don’t shift the labels of what they’re calling the person.

That’s the distraction here. It says nothing about people in wheelchairs, or we assume that they’re not somehow outside the protections of the Constitution. No, the presumption must be that all those provisions in the Constitution, speaking of rights, or speaking about those beings who can’t be the bearers of rights, and those are human beings. And I think the burden would lie on the other side. But getting to the respect, to the matter of Congress.

It was the court with Roe versus Wade that suddenly made abortion the business of the federal government and poisoned our politics.

Now you’d say, “Well, now we’ve returned [abortion] to the states.” But abortion is still the business; inescapably the business of the national government. Now, before Roe v. Wade, of course, we were having federal aid to hospitals, major and minor. That aid goes on. We do not raise the question as of whether any conditions should be attached to that aid, either to promote abortions, to discourage abortions, to provide protections of conscience for doctors and lawyers who [don’t] wish to become complicit in abortion. The decision adopts, renders, gives us nothing that governs those judgments. Those judgements are still there to be made.

So, it’s still open to Congress and the executive, in the instruments that come under their hands, to use those instruments to promote abortions and approve abortions. Sustain them in the District of Columbia, or military and diplomatic outposts abroad, on territories of the United States.

I think their people say, “Aha, finally, we return the matter to the states happily. We can wash our hands in this matter. We don’t have to think of this anymore with the federal government.” But this is like the tar baby. No, you can’t let go of it. It is there. It comes back in many ways, and one way or another, you’re going to have to be making these judgements on whether the federal authority is going, the federal funding is going, to be used to approve abortions, discourage them, sustain them.

Reinsch: As I’m listening to you. I think of the disputes you just mentioned at the federal level. Spending disputes, disputes over religious freedom, religious conscience. Those of course can be protected by congressional statute. Should be protected. But what I hear, I’m also hearing you, you seem to be reflecting Lincoln’s judgment. “We’re either going to become all slave, or all free,” Lincoln said.

Is that sort of your version of what you think about the idea of returning abortion policy to the states? We really can’t live in a country with 27 states with protections and the other 23 without.

Well, no, we could. The difference at Lincoln’s time was that the Supreme Court was establishing the precedent that black people have no rights that whites were obliged to respect. And if there was a right not to be dispossessed, and buy property, would I enter into a territory that will be extended fondly to the, if it’s a constitutional right, it should be binding in other states as well. But here we have something quite different. But I do think that the …

… Well, first of all, it shows a kind of disconnect between the pro-life movement and what conservative jurisprudence has been offering all those years. Whether it be, people were drawn to Washington in the worst weather at Washington … in January for the March for Life. At times, the pictures were pictures of babies who were being poisoned. The concern among that crowd marching there with the dismembering or poisoning of babies, no one was carrying the sign saying, “Ah, the real villainy of this moment was the court has overnight, it’s moved beyond this rightful jurisdiction.”

So, we’re faced with the situation, which we know. We remove the aspect out of abortion as a constitutional right, but abortions will thrive massively. Be performed in massive method still, in the blue states. In California, Illinois, but now with even fewer, with no restrictions. With New York, before Roe versus Wade, were starting to ease its laws to allow abortions. But now, after 50 years of this … abortion tourism.

Arkes: … Tourism, yeah. That people have talked themselves, not only that it’s a regrettable public choice, but it’s a public good. It should be sustained. And we should give vouchers to women coming in from other states who can’t get the abortion. It’s now seen as a public good. So, it’s flourishing.

And my concern, though, is that when the court brought it back to the states on these terms, we’d say, “Well, where is the dynamism moving? I think the pro-life movement is going to show real energy as it has. What has brought us to this point is precisely the fact that the public were not, we have to look 10 years after [Brown v. Board of Education] was decided on racial segregation in schools.

Ten years after that, we’re able to have the Civil Rights Act of 1964 to ban racial discrimination in those private businesses open to transactions with the public and so on. And this is here, but 49 years since Roe v. Wade was decided, there has not been any kind of consensus of that kind.

The country has been sharply divided. The people who thought there were, that there was something wrong about this, have not been dislodged from that conviction. But we have this situation. We say the court has sent it back. We declare no truth about this matter. Then, people, the separate states are free to sort of license abortion to highest levels.

As you say, I don’t give up the possibility of the pro-life movement, even in the blue states, can start having its effect. But you look at the whole thing. And my concern is, what has been planted in this decision that imparts a pro-life movement to this matter? You send it back to the states saying, as Justice Kavanaugh says, “We cannot tell you when human life begins.” And that’s just a patent falsehood. There’s something strange, a mystique, about a jurisprudence that takes it as a grounding point in that way, but must, that’s a falsehood.

Reinsch: I do think that the Alito opinion in pulling down one of the major progressive constitutional milestones performs an incredible work for the country and the way he wrote about it. The dishonest arguments made on behalf of Roe by her counsel, in that opinion. Trying to appeal to the common law historically, thus distorting the record and being willing to do whatever it took to get to that opinion in 1973.

I thought that was, he held it up to withering ridicule and scorn. I thought that was necessary and good. I also thought in the opinion, it’s sort of like, well, what’s the first step we can take here in terms of, what we have to do first is just cabin and collar substantive due process jurisprudence. And I thought Alito did in the opinion. He did it marvelously well. And just showing how limited this should actually be. And he sets the stage for a new way of thinking about these claims. That’s much more favorable to a restrained jurisprudential model.

And I think that’s, in a way he is returning the Constitution to a more fixed understanding, and also returning things back to the people in a republican sense. And it will be up to the people now, either in Congress or in the states to argue, affirmatively as you are saying. Which I agree with your natural law analysis. What do you make of that?

Arkes: I think that was a just profoundly important opinion. I think the work that Sam Alito did was just formidable in dismantling [then-Supreme Court Justice] Harry Blackmun’s opinion brick by brick. But as also, as you point out, pointing up the false history that had been incorporated in the framing of that decision.

But look, looking at the record of the common law [or the major move in the United States in the mid-19th century by the medical profession against abortion]. The strength of the laws on abortion in states, it’s an oppressive list. But if you go back to the premise that we don’t know when human life begins, and it’s all a value judgment, we should not have been astonished that the people on the other side have looked at that opinion and said, “Oh, all you have given us is a reflect, a record of what people in an earlier day believed about abortion.”

It could’ve made a profound difference if we’d said, “What this record reveals is an understanding taking hold, amplified by embryology, that we are dealing not with nothing less than the, a human life, that’s been human from its first moments.” That is what the record reveals, not simply a catalog of what people in an earlier day believed about this matter.

I think it affects things at every moment in that way. Which is why so many people have decided to just dismiss that impressive historical record about the … laws about abortion.

Reinsch: Justice [Clarence] Thomas’s concurring opinion. He says, quote, “The court’s substantive due process jurisprudence has caused great harm to the country.” End quote. I know you agree with that statement. He makes the argument, perhaps a lot of prior precedents that have come under substantive due process like Griswold [v. Connecticut], like Obergefell [v. Hodges], like Lawrence v. Texas, the proper way for those to be considered would be under the privileges and immunities clause of the 14th Amendment, to see if they actually should be protected rights. What did you make about Justice Thomas’ opinion?

Arkes: Well, I think he is wrong. As I say, substantive due process are us. The Constitution said the due process clause was carrying with it now, all the great principles. The constitutional principles that we associate with a natural law. Take a look at this difference, for example, Roe versus Wade. Can you say too, Richard, the difference between these two different paths for judging that issue?

You could say, “Ah, there’s nothing in the Constitution about abortion.” Therefore, when we choose out the due process and according something substantive, the lawyers for Texas as an alternative path said, “We can show you.” The ground, an embryology woven with principal reasoning, by which we show you that those laws in Texas were justified in casting protections of law around these unborn children. We don’t have to talk about substantive due process.

Justice Thomas has been challenged on their very point. They say the decisions on Griswold, and contraception, and interracial marriage, of course. The conservative majority has taken the line that these become fundamental only because they are rooted in our tradition. And the other side says, “Well, take a look at the very standard you put forth.”

Contraception wasn’t rooted by our tradition. It was in fact outlawed in a number of states at the time Griswold came down. There’s still states in, when Loving v. Virginia came out on interracial marriage, well, there’s still states that bar marriage across racial lines. If you take that line, you will leave yourself open to those people who say everything out of, your very terms, the very terms of your argument, what you put forth. Yes. All those decisions still are open to challenge. As opposed to saying, we think it, there was a compelling reason to explain why it was wrong to bar marriage across racial lines.

A compelling reason to explain why someone should be protected from a policy of compulsory sterilization in the Skinner case in Oklahoma. Or why people may justify that having access to contraception.

That’s a different way of doing it. But it’s a matter of reaching judgments about why these early decisions were justified. As opposed to saying, “Oh, no, it wasn’t in the list of things contained in the Constitution.”

Look, let me place you one other test if you’re open to it. Remember Brown versus Board? The very same day that Brown, the companion case, v. Board, on the segregation of schools, was Bolling v. Sharpe. Segregation in the District of Columbia. Well, when the court did Brown v. Board, as you remember, they invoked the equal protection clause of the Constitution. When it turned to the District of Columbia, they couldn’t invoke the equal protection clause, because this club is not a state. It doesn’t come under the due process, under the equal protection clause. …

Now I can give you a good argument to show why that is a fit argument in this case. But I have attempted not to raise the question with Justice Thomas, when I see him again. Do you think that decision in Bolling v. Sharpe on racial segregation gave us another one of those instances of the dreaded substantive due process?

Reinsch: So the question of substantive due process and privileges and immunities, that’s what I took Justice Thomas to be saying. That’s a different round of analysis that he would put these cases through.

Arkes: Well, I wrote a book once called “Beyond the Constitution,” containing a chapter of life among the clauses. Where you’d see judges utterly agreeing about the ground of the judgment thing. Why you can’t keep indigent people out of California? But they’re arguing fiercely over which clause in the Constitution does the work. And what they failed to see was that the underlying structure of their moral argument was exactly the same. They’re trying to explain why it was not justified to turn people away from a state, simply because they were poor. Not that they were fleeing criminal, fleeing indictment or trials. Not because they’re carrying contagion.

We explain the ground, explain why it may be wrongful to turn them away because they’re poor. Now you’ll find that if you look at these matters, an argument for equal protection can be recast on, as a matter of due process. You find almost any of these arguments can be refitted to any clause. Yes, they can be refitted to the privileges and immunities clause, but as common data support, the privileges and immunities clause simply refer to the same essential liberties, essentially.

Why are you justified in restraining the freedom of this people to move to another state? To have access to higher education and so on. It’s going to be, no matter what you call it, whether use this clause or that clause, it’s going to come down to the same thing. You still have to explain why it is that people have a right to have access to this surgery. Why it’d be unjustified to bar that right to them. Or on the other hand, why the unborn child would have a claim to the protection of the law. Why it’d be unwarranted to withhold that protection.

So again, my sense, sometimes these points, you may use the [letter of marque and reprisal]. Almost any of these clauses can be made to fit. This is we, even if we didn’t have the equal protection clause in the Constitution. It’s just a deep principle of the law that you treat like cases in an equal way, right? That that’s a deep principle for law. The logic of the equal protection clause is there.

John Quincy Adams said, “That right to petition the government is simply implicit in the idea of a free government.” It will be there even if that right had not been mentioned, the First Amendment. It would be there even if there were no First Amendment. It would be there even if there were no Constitution. So, and all these things, I think, you know me, Richard. If you go to a dentist he will, like, give you root canal. You come to me, and I give you natural law.

Reinsch: All right, question for you on the dissenting opinion. What struck you about the dissenting opinion? The last-ditch effort to defend Roe and [Planned Parenthood v. Casey]?

Arkes: What was remarkable is that the only persons with, who are bearers of interest, bearers with people that have stake in the outcome, are the people who are pregnant or favorable. What is left out of the scheme is the child who’s given no weight or standing in the whole system.

It’s rather like Bill Clinton when he vetoed the bill on partial-birth abortion and expressed sympathy for the woman who was barred from having that surgery, when she thought she had need for it, but had nothing to say about the child whose head was being crushed, and brain sucked out, and removed from the body of the mother.

The remarkable thing is in that opinion, that there’s no recognition at all that we’re dealing in the case of an unborn child, with another life, a human life that is part of the equation here.

Of course, the case, it opened though, even a bizarre way, with [then-Justice Stephen] Breyer saying, “According to the court now, a woman has no right to abortion from the earliest point in the pregnancy.” But, of course, that’s exactly what the court avoided saying.

The court, of course, she still may have access to an abortion for the earliest points of the pregnancy. If that is provided in this, the separate states. Justice Alito and his colleagues were doing nothing to deprive women of that right to abortion early in the pregnancy. That all would be put back into the separate state. So again, it was that opinion. Oh, Justice Breyer sounded at times like a messenger coming in from another out of season, from another galaxy. This is though it made very little contact with the substance of the argument that it was ostensibly resistant.

Reinsch: Hadley, thank you so much for joining us to discuss the Dobbs opinion and the future of abortion jurisprudence in America. Thank you so much.

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