As Justice Holmes taught us, it was the purpose of the modern project in law to remove the connection between morality and law. And yet that connection between the logic of morals and the logic of law cannot be removed. We convey the point to students in part in this way: If we come to the recognition that any act stands in the class of a “wrong” – that it is wrong, say, for parents to torture their infants – our next move is not to say, “therefore let us offer them tax incentives to induce them to stop.” Or “let us offer them a DVD player.” It strikes people, at once, as laughably obscene to make contracts or appeal to self-interest here.
The torturers are induced to stop only because we gratify some other interest of theirs, not because they have the sense of a “wrong” – something that no one ought to do, that anyone may rightly be punished for doing. The most natural reaction to a grave wrong is to respond with the moral voice of a command – a command that forbids the act to anyone, to everyone.
The people who offer the tax incentives or the DVD player would become accomplices themselves in obliterating any sense that we are in the presence of a “wrong.” The lesson here is an old one, but the temptation to evade or finesse the moral question must be quite as ancient, and for certain politicians it is irresistible. For the so-called “pro-life Democrats” it has become their chief operating fallacy. On this point there is no clearer example these days than that of Senator Robert Casey, Jr., of Pennsylvania. The son of a famously pro-life father and governor, Casey has claimed to carry that pro-life banner, even as he helped to install, in control of the Congress, a Democratic majority that is militantly pro-abortion.
Casey’s protective coloring here, or his mode of harmonizing with his party, has come in part by accepting the dodge offered by Barack Obama: that he and his party would seek to reduce the number of abortions, and they would do it most notably by encouraging adoption. Adoption is a good thing, rightly encouraged. But when this path is touted as the response to abortion, it has the vice of avoiding any question about the rightness or wrongness of killing the child in the womb. Implicitly, this path of policy concedes the right of the pregnant woman to kill that child solely as it suits her own interest.
Senator Casey has taken a leading role in trying to make the massive bill on health care acceptable to pro-lifers. Over in the House, the Stupak Amendment, supported by sixty-four Democrats, virtually barred the government from using its funding, and the weight of law, to support abortions, whether in facilities or insurance plans public or private. The Senate bill has contrived means of concealing public funding by offering schemes, quite implausible, for separating public and private funds.
Senator Casey says he has done his best to resist those schemes. And he has also sought to preserve protections of “conscience” for doctors, nurses, and hospitals that do not wish to be conscripted into the service of performing abortions. On those points, he should readily be credited. But at the same time, all of these moves work within the cast of the understanding now orthodox in his party: that the right to abortion is central to the personal freedom protected in the Constitution, and it is not to be challenged.
In fairness, the same thing could be said about the moves pursued by Bart Stupak and his allies in both parties. They can resist the public funding of abortion while leaving the private right to abortion wholly unchallenged. But of course Stupak and the true pro-lifers have been willing to do far more. Casey’s predecessor in his Senate seat, Rick Santorum, was the sponsor of measures like the bill on partial-birth abortion or the Born-Alive Infants’ Protection Act, which actually sought to forbid certain kinds of abortions, and rescue lives marked for those “surgeries.” Stupak and many of his allies have been willing to support the same measures.
As Stupak estimates the Democrats standing with him, he reportedly thinks he can count on 10-12 votes to resist a Senate bill that rejects his amendment and supports abortion. That could be enough to defeat a bill that passed in the House by only five votes. But another savvy watcher of Capitol Hill tells me that Stupak may have only four or five votes. The pro-life votes among the Republicans will hold. Not so for the pro-life Democrats: they will be subject to all of the pressures that emanate from a party fiercely pro-abortion – and in power. Benefits will be dangled to buy them off, and threats may be made to deprive them forevermore of projects and funds for their districts. And so, the pro-life Democrats are melting away. But their demise was foretold by the logic they accepted in remaining in the party. They had to absorb the notion that the rightness of abortion could not be challenged in principle, that the protection of nascent life would always be a peripheral concern, always giving way to something more pressing. And the pro-lifers who keep voting to sustain them in that position have had to talk themselves into the same moral confusion.
Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College.
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