It is hard to see that much good has ever come from any of the various declarations of the rights of man. Such a declaration did not save the French from either Robespierre or Napoleon, and the constitution of the defunct USSR practically glows with liberal enthusiasm for human rights. For some strange reason, though, intelligent and well-meaning opponents of abortion have increasingly come to adopt the radical language of rights as their first line of offense, extending the Fourteenth Amendment’s guarantee on the protection of legal persons to the unborn and comparing the anti-abortion campaign with the abolitionist and civil rights movements.
Debates have taken on the surreal appearance of a man arguing with his doppelganger or replicant: “We feminists for choice are the heirs of Rosa Parks and the Civil Rights movement,” countered by “No, we feminists for life are the real heirs of Rosa Parks.”
The analogy between slavery and abortion is worked out in considerable detail in the right-to-life movement. Then as now, an immoral deprivation of rights was not only tolerated in society but was even encouraged by the law. Then as now, the Supreme Court assumed the power to declare who is and who is not subject to constitutional protection. (In Dred Scott, Chief Justice Taney decided that blacks were never intended to be citizens under the Constitution and were, therefore, not legal persons.) Then as now, a constitutional amendment was required to settle the matter at the national level. Then as now, a militant band of moralists was willing to mount a challenge to the status quo.
The problem begins, as it so often does, with historical errors. The case of Dred Scott is among the most complicated constitutional questions ever decided by the Supreme Court, and the justices further complicated matters by rendering separate opinions. Setting aside the narrower question of whether or not the Court should have taken the case and the broader question of the Chief Justice’s opinion that the Missouri Compromise was unconstitutional, one can see that the principal point of the case hinged on the question of whether or not blacks were citizens under the Constitution. After reviewing the historical evidence, that slaveholders signed the Declaration of Independence and the Constitution, that the Constitution permitted a 20 year extension of the slave trade and defined Southern slaves as three fifths of a person for purposes of representation, that blacks and whites nowhere in the United States lived on terms of equality, Taney reached the quite reasonable conclusion that slaves were not citizens and could not sue in federal courts. If this situation was objectionable, he argued, then the amendment process would provide a remedy.
The abolitionists, some for purely political purposes and some out of conscience, denounced the decision, but their arguments will not bear scrutiny, as Senator Judah P. Benjamin pointed out at the time. Some Southerners, on the other hand, breathed a sigh of relief, because they believed that respect for the Court’s decision would prevent a wholesale assault upon their region’s economic system. Their euphoria was short-lived, however, and the election of Abraham Lincoln represented a direct threat both toward the extension of slavery into the territories and to the institution’s survival. For those who believe that humanitarian violence is the proper solution to moral dilemmas, the Civil War was a dream come true, and the defenders of life have come increasingly to employ, endorse, or at least connive at violence and murder. Glory, Glory, hallelulia.
If unborn children do have a right to life, if abortion is slavery, and the Constitution a compact with the devil as many abolitionists claimed, then illegal demonstrations and even violence are justifiable. For them, the terrorist John Brown is a hero and role model. Increasing numbers of pro-lifers, frustrated by failure, see Operation Rescue as the answer. In principle, there is hardly any law of property that Operation Rescue’s leaders are not willing to break in their campaigns. Prominent evangelical clergymen, including Pat Robertson and Jerry Falwell, endorsed Operation Rescue’s illegal tactics of civil disobedience.
The most conspicuous protester is Joan Andrews, sentenced to five years in prison for her part in taking over an abortion facility in Florida. Any humane person can understand her motives and wish the judge had exercised more clemency. But Miss Andrews did not make it easy. She refused to cooperate in any way at her trial, declaring the United States to be a Nazi regime that lost all legitimacy after Roe v. Wade. Even moderates in the pro-life movement regard Joan Andrews as a martyr, but by her own words she has virtually accused herself of treason–and not for the first time. Before discovering abortion, Andrews was already a career civil disobedient who began by protesting the Vietnam War.
Most sensible people in the pro-life movement have warned that the Gospel does not teach anything like this reckless disregard for law and order. Charles Colson, while expressing sympathy for Joan Andrews, points out that “in an open society there are other, legal means available….generally speaking it is not justified to break a just law in order to protest an unjust law.” Even more to the point is the strong statement made by John Whitehead and Franky Schaeffer (in [it]Arresting Abortion[it]), that “We are commanded to be good citizens until such time as wee are ordered by the law and government to do those things contrary to the law of God.”
The argument heard most frequently from Catholic supporters of Operation Rescue goes something like this. If you knew that your neighbor were being murdered or was drowning in his bathtub, you would be morally obliged to disregard laws against trespassing in order to save his life. The same argument, presumably, would apply even if the neighbor was temporarily insane and about to kill himself.
This appears to be a strong argument, but it is both flawed and dangerous. First of all, if house-breaking is justified in life-and-death situations, what about burglary (to gain funds for the movement), bearing false witness (to discredit abortionists), assault (to prevent an abortion from being carried out), or even murder (really an execution of a murderer)? Charles Stanley, former president of the Southern Baptist Convention, realizes the corrupting effect of conscientious lawbreaking and has argued against Jerry Falwell: “If blocking an entrance is permitted, then why not…even destruction of those who are performing the procedure? Anarchy and chaos will ultimately result.”
Stanley made this prediction before any abortuary had been bombed and before any right-to-lifer had shot an abortionist. Within a few years, however, violent attacks on abortion clinics had become frequent enough to justify abortionists’ demands for special legal protection. Right-to-Lifers objected, but their failure to control the irresponsible elements in their movement made the legal crackdown inevitbale. Of course, most people in the pro-life movement moved very quickly to repudiate the violence, some out of conscience, some out of horror, some out of fear. Organizations, such as Lutherans for Life, which have steadfastly insisted upon lawfulness, had nothing to apologize for, but protestors who had glibly spoken the language of civil rights and civil disobedience cannot so easily escape. If they had read more history than is contained in a pamphlet, they might have realized that in echoing the protests against Dred Scott, they would come to imitate the tactics of the first great civil disobedient in American history, John Brown.
To demonstrate his disgust with a nation that tolerated slavery, Brown and his followers first slaughtered a family of Southern settlers in Kansas? and then proceeded to an attack on Harper’s Ferry, Virginia, in which the first murder victim was a free black. Then, as now, moderate abolitionists were eager to distance themselves from Brown, but Emerson and Thoreau both celebrated him as a second Christ. This is the tradition of civil disobedience that right-to-lifers who stage illegal protests are imitating, and the logical consequence of their constant allusions to Dred Scott would be a civil war.
Are we always obliged, either as Christians or as moral human beings, to trespass on someone’s property in order to prevent a sin or crime from taking place? What if the neighbor is only falsifying a tax return or reading pornography or committing adultery? Those actions may be sinful and criminal, we are told, but they do not involve loss of life. Then mere existence is the ultimate moral test? That is a strange line for Christians to take. Should the ancient martyrs have been rescued or Jesus dragged down from the cross?
But the specific example used by Operation Rescue is persuasive, and most Christians would agree that failure to save a drowning man’s life, where rescue could be achieved without danger, is close to murder. The problem with the example lies in the assumption that all these moral dilemmas involve abstract individuals. In the example of my neighbor in the bathtub, it is important to recognize that he is my neighbor to whom I am bound by ties of common experience and within a community and a political system. Within this system–moral as well as political–my neighbor and I have been formed as moral beings and are obliged to carry out the principles that we have been taught to accept. If I were to hear, for example, of a society of Satanists in Kansas, who believed and practiced a contrary set of assumption, I should not be quite so eager to risk the penalty for trespassing.
There is, however, the example of the Good Samaritan, a foreigner who showed himself to be a real neighbor. But the point of the story is, surely, the common faith and principles of Samaritans and Jews, and even if one were to universalize the principle and conceive of all mankind as our neighbors, the task of saving millions of lives every day would be outside the capacity of any individual.
If it is as neighbors, as Americans, and as members of Christendom that we are obliged to help our neighbors, then we ought also to recognize the other specific ties and obligations that bind us into tightly-knit little communities. I may not believe in spanking, for example, but I as an individual am hardly justified in entering a neighbor’s house in order to interfere in the chastizement of a child. The same holds true for all the other vices and sins which might be practiced within a household.
Does this mean that parents are free to practice any outrage upon their children? In general, the answer is no, because of community sanctions and the threat of legal action. If a community is opposed to pornography, blasphemy, whiskey-drinking, spanking, or abortion, then that community is free to make its will known, either through the legal system or by direct action. Individuals are not free to impose their conscience upon other individuals and families, but communities have always had the power, not only as it is expressed in a formal legal code, but also through gossip, ridicule, charivaris, riots, and rituals designed to shame the offenders.
In fact, it is the tactic of shame that has had the best effect in curbing abortion. In some parts of the Midwest, physicians are unwilling to provoke community censure by performing abortions, and even in more urban areas the pro-life has suceeded in driving abortionists out of business, simply by picketing their homes and drawing attention to their activities.
While the immediate effect of picketing the abortionist’s home is to dissuade him from engaging in abortion, the long-range effect is to alert other abortionists to what is in store for them if they remain in business. After all, who wants to get into a business that will bring with it embarrassing demonstrations at their homes on a Sunday afternoon?
Operation Rescue has, in fact, made an effective use of such tactics, including sidewalk counseling and picketing the beauty parlor where the hairdo of an abortionist’s wife is “paid for by dead babies,” as the signs proclaim. The appeal to community sentiment is preferable on all counts to the reckless exercise of civil disobedience accompanied by familiar comparisons with Nazi Germany. If the United States were governed by a Nazi regime, it would not tolerate the lawbreaking without tears that characterizes the anti-abortion protests, and there would be no question of permitting abortions. A Nazi state would be commanding some parents to murder their “inferior” children, while punishing with death any “superior” parents that tried the same thing. Such violations of natural law do not just permit opposition; they require resistance and rebellion. In America, the state is not compelling women to kill their babies. It is simply looking the other way. If parents really want to commit infanticide, in most cases they can get away with it–whatever the law says. The fact that a large number are willing to do it–that is the real outrage and not the fact that the Federal Government allows it.
Suppose we did manage to secure a national law against abortion. Why shouldn’t conscientious feminists defy the law? Years ago liberal critics of the civil rights movement posed precisely the same question to Martin Luther King, but the sanctification of King has apparently set an official seal of approval upon any criminal activity, so long it is done for conscience’s sake.
We know where the ideology of rights leads: it leads to [it]Roe v. Wade[ro] It never seems to have occurred to pro-lifers that the Court’s decision was a civil rights decision that would have been unthinkable without the Fourteenth Amendment and before the passage of the 1964 Civil Rights Act, which taken together empower the Federal Government to strike down any local or state law that a few judges happen to dislike.
A 1989 abortion case in New York ought to cause reflection on both sides. When Martin Klein’s pregnant wife Nancy went into a coma as the result of a serious automobile accident, her physicians advised her husband that an abortion might increase her chances of recovery. The hospital, however, refused to perform the operation until Mr. Klein were named his wife’s legal guardian. (NYT 27 Jan & 3 Feb 1989). Local groups opposing abortion not only attempted to prevent the husband’s appointment as guardian but even appealed to two Supreme Court Justices (NYT 11 Feb). Here’s a howdy-do. A right-to-life movement that has spent almost 20 years condemning the arrogance of the Supreme Court now wants the Court to intrude into the most difficult decision a husband will ever have to make.
Mr. Klein’s physicians may well have erred in their jndgment–although it is true that Mrs. Klein began a slow process of recovery after the abortion was performed, and from the Catholic perspective, even a clear-cut case of imminent death would not justify abortion; still, by presuming to enter a plea in this case, the pro-life groups were empowering the government at the expense of families and were setting themselves up as moral arbiters over the conduct of human beings whom they neither knew nor loved except in the most generic sense.
Since Mrs. Klein was unable to choose, the conflict was not over a woman’s right to chose, but a contest between the Klein family and the state’s power to protect the rights of a child. What would happen if the rights of born children were suddenly extended to the unborn? Once upon a time it used to be assumed that parents by and large looked out for their children’s best interests. In the past hundred years, however, laws have been passed on the contrary assumption, that parents either do not know or do not care enough to see that their children are properly educated, clothed, and fed. Child protection statutes do not even provide routine [it]habeas corpus[ro] protection to parents suspected of abusing their children. Worst of all, neither the laws nor the self-styled experts are willing to distinguish between normal, intact families, where the incidence of abuse is very low, and the alternative life-styles (broken homes, single-parent households, and various “swinging” arrangements), where the risk may be 40 times greater than in traditional families.
The result is that in the name of children’s rights, children can be removed from decent and caring families simply on the accusation of a teacher or a plea-bargaining child-molester, so long as the case attracts the attention of a progressive prosecutor. After all, if children have rights they can hardly be expected to defend those rights all by themselves (although there are children’s rights advocates who insist that kids be allowed to vote, hold public office, and engage in sexual relations with each other and with adults). Who will protect the rights of children from bigoted parents? Why, the courts of course or “children’s agents.”
If we apply the same sort of reasoning to the unborn, the principal effect will be to strengthen the government’s hand in its ongoing struggle to supplant the family. If there is an absolute and unquestionable right to life, then abortion will be only one of the options forbidden to pregnant women. What about smoking or drinking or, indeed, any activity that carried to an extreme could threaten the child’s life or reduce its birthweight?
A District of Columbia superior court has already sent one drug-abusing expectant mother to jail in an effort to protect her unborn child. The lady’s actual offense was check forgery, for which she would have ordinarily received probation, but the judge decided on the stiffer penalty when a drug test turned up positive for cocaine. In a parallel case in California, a San Diego woman was jailed when her baby was born with brain damage because she had ignored her doctor’s injunction against using drugs and engaging in sexual activity during her pregnancy. The case was dropped, but there is a mounting debate over fetal rights and women’s rights. The real effect of these cases is to make abortion seem like a preferable option.
Bad arguments, dishonest arguments–no matter how good the intentions–corrupt our thinking and corrupt the law. We know the place (not the road to that place as in the watered down version of the proverb) that is paved with good intentions, and it is not Heaven