Once More Unto the Breach: Arkes v. Whelan on the Overruling of Roe

Source – Wikimedia Commons – Phil Roeder

I’ve managed again to unsettle my friend (and sometime collaborator) Ed Whelan at National Review Online’s Bench Memos with my piece in the March 2022 issue of First Things, where I recorded my wish and expectation that Roe v. Wade will be overturned, or decisively scaled back in the upcoming judgment in the Dobbs case. But I argued that it would make a profound difference as to the way in which the issue of abortion is sent back into the political arena in the States or in our national politics. I then pointed to two different paths. They are the center of that argument, and as far as I can see, Whelan does not contest the points I put forth there. One path involves the line that even Whelan regards as “cringeworthy”: the Court declares that it has no truth on which to recognize the human standing of the child in the womb, and so the matter is put to the “value judgments” of voters in the separate states. “Value judgment” is a term that came into place when people stopped speaking of moral truths. Whether something is regarded as good or bad, right or wrong, depends on how much “value” we impute to them. Lincoln said that the central question of his day was whether the black man “is not or is a man”—and Harry Jaffa pointed out that this question of the human standing of the black man cannot be a “value judgment.” It is quite unthinkable that we would put that question in the political arena and invite people to offer their value judgments on how much they value the respect and protection for black people in the law. And yet if that is wholly unthinkable, why should we regard it as any more plausible to invite people to give their “value judgments” on the human standing of the child in the womb, when embryology has long established that the child in the womb has never been—and can never be—anything less than human.

That is the line that Whelan describes aptly as “cringeworthy.” And yet he knows that it is precisely the line that has become the virtual Orthodoxy for conservative jurisprudence, and nowhere expressed more sharply than by the jurist who had been especially dear, over many years, both to Whelan and to me:

The whole argument of abortion opponents is that what the Court calls the fetus and what others call the unborn child is a human life. …There is of course no way to determine that as a legal matter; it is in fact a value judgment. Some societies have considered newborn children not yet human, or the incompetent elderly no longer so.

As “cringeworthy” as this argument is, it marks the ground for the overruling of Roe that Whelan himself has come to support, following the path of our late judicial friend. That Whelan himself has fallen into the groove of this understanding is amply confirmed in his piece. Whelan and I have collaborated in the pro-life cause and I know that he has a principled, moral argument in rejecting abortion. He doesn’t think that abortion might be wrong for me but permissible for others. If it is unjustified to take the life of a small, innocent human being, it would be wrong for anyone, not merely for both of us. But Whelan remarks at different points that it would be wrong for justices “to read their own moral convictions into the Constitution” on the matter of abortion, that judgments should “not depend on the justices’ own moral convictions on abortion.” If Whelan and I share the moral judgment of the deep wrong of abortion, that cannot be a matter merely of “our own moral convictions.” And if judges come to hold the same understanding, it is utterly reductive and false to characterize their judgment as a willful expression only of their “own moral convictions.”

Whelan is quite right when he says that “it is not moral relativism to recognize the reality that these claims to moral truth conflict.” But it does indeed turn into relativism if one goes on then to conclude that the very presence of moral disagreement marks the absence of any moral truth on the matter. As I recall, we had the gravest rival “claims to moral truth” on the matter of slavery, and yet we don’t take that to mean that there was no moral truth to be known on the wrongness of slavery. Since Whelan does reject abortion on serious, reasoned grounds, the truth of his judgment could not hinge on whether anyone disagrees with him. Whelan and I want to put this matter of abortion back into the political arena, but how does it possibly advance the ends of our cause if we send the matter back to the States on the premise that there is no truth to undergird their judgments? Are we inviting them to reason through to the moral truth about the wrongness of abortion? Or are we inviting them merely to play out their  “value judgments”—the arrangement that Whelan calls “cringeworthy”?

How does it possibly advance the ends of our cause if we send the matter of abortion back to the States on the premise that there is no truth to undergird their judgments? Or are we inviting them merely to play out their “value judgments” on when they are pleased to think human life begins?

Whelan pronounces me “correct” on the “settled findings of embryology,” that the “child in the womb has been human from its first moments [and is] a distinct life,” never merely a part of the mother. And yet he curiously holds that a legal judgment finding its ground in that anchoring truth is “much less likely to be accepted as a sound legal ruling.” Really? Why does he assume that a legal judgment recognizing this reasoned, moral objection to abortion would have no place in a “sound legal ruling”? Is this not simply an echo of those lines famously offered by Justice Holmes in his rejection of natural law: that it would “be a gain if every word of moral significance could be banished from the law altogether, and other words adopted which should convey legal ideas uncolored by anything outside the law.” Which is to say: a “law” made ever purer by removing any trace of a “moral” judgment.

That was not the understanding of the American Founders, the true Originalists. It is the mark rather of a positivism that has now been so thoroughly and deeply absorbed by many conservatives that they know longer seem aware of what they have absorbed. It was not foreign to judges like John Marshall, John Marshall Harlan, Stephen Field, and Robert Jackson to incorporate in their opinions the moral judgments that lay at the heart of the cases before them. And it was a telling moment when the Supreme Court was given the most eloquent way of weaving that kind of judgment into its landmark holding on abortion. The lawyers for Texas in Roe v. Wade drew upon the most updated findings of embryology, confirming anew that the child had been no less human from its first moments, even when it was no larger than the period at the end of this sentence. And yet even the conservative justices turned away from drawing that material into their judgments. It would have not only been the easiest, but the most natural thing for the justices to have put down on the record the evidence that had been so amply put before them—and then explain this simple judgment: the laws in Texas may rightly be sustained by the Court for they were quite sufficiently justified in casting the protections of the law on the child in the womb. None of this is brazenly outside things that judges have conventionally said. To say that the laws in Texas were “justified,” just, or rightful, was to do nothing less than pronounce the kind of moral judgment that is woven into the very logic of law. And yet we now find a lawyer as seasoned as my friend Ed Whelan telling us that if the Court had taken that path, and pronounced that moral judgment in Roe v. Wade, it would have offered something quite outside the perimeter of a “sound legal ruling.”

The alternative to this path of moral reasoning, ever woven into the law, is the path that Whelan regards as “cringeworthy”: treating all moral judgments as merely arbitrary “value judgments,” even on the question of whether offspring in the human womb are to be regarded as human at all stage. And yet, as he surely knows, that is that path that has not only been favored, but even prayed for, by the leading figures in “conservative jurisprudence.” Given that teaching over the years, that is the reasoning we are most likely to see if the conservatives on the Court strike down Roe. “Cringeworthy” it may be, but it is the reasoning that Whelan tells us that he himself will celebrate if it is offered as the ground of that judgment. My friend’s discomfort then, I think, is not that he thinks me wrong in rejecting that “cringeworthy” path of argument against Roe. The problem, I fear, is that in bringing out for our friends that quality of the argument, my piece may simply expose the moral vacuity of that argument, the argument that conservatives had been beamishly and serenely signing onto for the past 40 years.

It’s a move all too familiar to paint two alternatives as extreme or eccentric and then stake out for oneself that moderate ground nicely evading the extremes. Whelan claims to mark off precisely that “vast middle ground.” But what is he “moderating”? Aristotle said that virtue inhered in moderation, in a golden mean of the passions. But Kant would later point out that, in this reckoning, virtue would be found somewhere along a scale in which two vices diminish. Whelan finds, on one side, a position he regards as “cringeworthy.” And on the other side lies something quite untenable: the claim that “moral” judgments of right and wrong can be plausibly and wholesomely removed from the judgments made by judges. Where are these two poles to find a principled middle ground? 

When Whelan says that, on this matter of abortion, the “claims to moral truth conflict,” we may rightly ask:  Which claims are in conflict?  Surely it cannot be on whether the child in the womb has been anything less than human in any of its stages. …And just as surely, a conservative position on abortion should not begin with an affable willingness to affirm such a manifest untruth.

If Roe is overturned, we would expect the main judgments to be made in the political arena. I have worked 46 years in the pro-life movement to bring about that result. But neither Whelan nor I ever supposed that the pro-life mission then would have been accomplished—that we could overturn Roe and then sit with consolation as abortions continue to rip along on a massive scale in so-called Blue States. To celebrate the overthrow of Roe is not to persuade ourselves that Congress and the federal courts have no serious levers to use in extending the protections of the law to the unborn. To pretend that federal judges may never face questions of moral consequence on abortion is to rule out of the imagination that federal courts would have something legitimate to say when a State withdraws the protections of the law from a whole class of small human beings.    

The question before Whelan and me can finally be crystallized in this way: When Whelan says that, on this matter of abortion, the “claims to moral truth conflict,” we may rightly ask: Which claims are in conflict? Surely it cannot be on whether the child in the womb has been anything less than human in any of its stages. On that point, there is indeed a consensus of judgment in all of the textbooks of embryology. That cannot be a thing that conservative jurisprudence would regard as officially unknown to the law and to judges. And just as surely, a conservative position on abortion should not begin with an affable willingness to affirm such a manifest untruth.

The other “conflict” may come simply when we put the question back to the States and invite people to deliberate on exactly what kind of protections they are willing to afford to these small human beings. How would the killing of these unborn children be dealt with in their laws on homicide? Some States may interpose protections at every point, possibly insisting on doctors standing by to protect the child at the point of birth. Other States may sweep away any protections for that child. But once the point is planted in the law that we are dealing with the killing of small human beings, we may hold back in prudence and hope that people in different states may enlarge the protections of the child as they become willing now to admit what they have known so long: that this child in the womb is every bit as much a child as the five-year old running through the house.

We can live with that state of affairs; we cannot expect to bring everyone instantly to the same understanding. But if Whelan’s position is different from that, he would indeed be back to inviting people in the States to give us “their own reading,” or their “value judgments” on when the child in the womb becomes a human, with a claim to the protection of the law. And yet that is the very view that he has called “cringeworthy.” If he still holds to that view, then I don’t see how we can be divided on anything that truly matters.

Hadley Arkes is the Founder and Director of the James Wilson Institute as well as the Edward Ney Professor Emeritus of Jurisprudence at Amherst College.
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