Hadley Arkes on the "Right" to Abort
His 2002 Arguments Become Relevant Again
Twenty years ago, when it still seemed on some days that there was a national debate about the abortion right, law professor Hadley Arkes published what may be his finest book, Natural Rights and the Right to Choose. Speaking of the right enshrined by Roe v. Wade and its companion case, a right often spoken of as the “right to choose,” Arkes said, “No logic of natural rights can be squared with that right to abortion.”
He was right about that, you know.
And now, suddenly, we have plenty of incentive to refresh our memory about the best anti-abortion arguments, or, to start learning them for the first time. The overturning of Roe was predictable once it became clear a few years back that SCOTUS was going to have an originalist + “semi-originalist” majority for the first time ever, but social conservatives have been so used to being burned on the abortion issue, that as far as it went, few dared to hope for victory.
Some conservative law-school smarties might want to remind us, before we look more closely at his arguments on this, that Arkes is associated with a particular Natural Law approach to constitutional law, one particularly open to a George-Sutherland-friendly stance—which many will classify as libertarian or classic liberal—with regards to jurisprudence on the Commerce Clause, Contract Clause, and Economic Substantive Due Process. There’s important differences between that stance1 and the one of Scalia-style originalism, which is the approach I profess when I teach constitutional law, as did our original Postmodern Conservative, Peter Lawler, when he spoke of con-law matters, such as in his classic essay, “Putting Locke in the Locke-Box.”
Some political theory types will also point us to the growing conservative school of “post-liberalism,” and to its hesitancy to agree that America should be thought of as a Natural Rights Republic—the title there is that of Michael Zuckert’s landmark book on the Declaration and Founding, but it’s a phrase I can well imagine Arkes using.
But all social conservatives can turn to Arkes as an important guide in the various abortion debates, as his mastery of these is unparalleled, given that he was on the front-lines of the issue for decades, being among other things, a key architect of the Born-Alive Infants Protection Act.
Moreover, Arkes can help social conservatives see how these debates have to be anchored in the historical fact of America’s natural rights creed. The abortion debates are naturally paralleled to the ones about slavery, for example. Arkes would insist that “anchored in” is a weak metaphor compared to the sturdier one of “built upon,” and, that the foundation in question here is itself not merely “historical fact,” but is the in-all-times-and-places Truth of Natural Law. I am trying to suggest, however, how conservatives who’d recoil more than I would from bridging natural law and natural rights on this issue might nonetheless profit from Arkes. That is, this perhaps too-telegraphic paragraph is my way of saying that I don’t think a “post-liberal” thinker such as Patrick Deneen, who likely is not going to endorse the idea of natural rights in quite the same way as Arkes, would disagree with much of what I am about to quote.
But enough of the preliminaries—let’s see what Arkes says, beginning on page 167:
Russell Hittinger, summed up our own situation in this way a few years ago: We have now created a private right to kill, for wholly private reasons. One person may now claim to kill a second person, a second being, for reasons that may not rise above convenience, and under those conditions a third person may not object. That third person, or community, may not object, because this is now, we are told, a matter of “privacy.” …imagine that a farmer in Vermont was told in the 1850s that if he objected to the prospects of slaves around him, he should not buy one. But he is also informed that he may not join with his fellow citizens in Vermont in deliberating about the question of whether the political community, in its laws, will recognize or honor this form of property. That is a matter of privacy, he is told, and it forms no part of the legitimate business of the polity. And now, in our day, he is told that if he objects to abortion, he should not choose one for the women in his life. Yet, the choice of abortion, he is told gravely, remains a private matter, outside the laws. And it is no longer part of his legitimate business, then, as a citizen or a member of the political community. But if the laws on homicide, or the protection of life, are not part of the purpose of the polity, or central to its business, what purposes on earth could be more apt or central?
The way he has been “gravely told this,” of course, is by federal judges insisting for 57 years—since Griswold—that there is a “right-to-privacy” implied by some section—most likely by the liberty clause in the 14th—of the Constitution, and that since that right was soon also asserted by the Court to give women individual authority over birth decisions generally, they went on to say that authority must include a right to have an abortion, and what is more, any right-to-life that might be understood to be similarly implied by some section of the Constitution could not be invoked to in any way limit or balance the abortion aspect of the right.
“Because we say so,” was pretty much the extent of the argument for all this, although one trick used in the Roe v. Wade opinion was simply to remain silent, and to deflect attention from that refusal to engage the real arguments with an extended discussion of a “state interest in life” factor, which a trimester framework would supposedly help the justices “balance” against the abortion right. And that deflection was itself riddled with falsehood! Language in the companion Doe v. Bolton case handed down the same day made it impossible for states to prohibit third-trimester abortions, contrary to what was implied by Roe, so long as these were done by a doctor willing to claim that an “emotional or psychological” harm to the woman could result from it not being granted.
I’ve probably taught Roe v. Wade ten or so times, and I’ve found I must quickly cut to the chase and summarize it, moving on to spend much more time with the text of Casey, or else, I will spend the entire session trying to untangle student confusions that stem from the (deliberately?) muddy-thinking and bald assertion that pervade the entire opinion. All in all, Justice Alito is entirely right to say in his draft for the coming opinion that Roe v. Wade was “egregiously wrong from the start.” That is so simply as a matter of reading the relevant texts and applying sound interpretive principles to them, but we must also notice that it was a blatant error even if your only guide was to be consistent with what FDR’s top legal-issue advisors and his appointed justices had long said against the idea of substantive due process rights.
But Arkes’ most upfront point here is the raw denial of democratic say, and one all the more ugly because the denial here does not erect limits to the reach of democratic laws on the basis of a higher natural law and/or natural rights, but is erecting limits for the very sake of not permitting any recourse to “so called” natural law to guide the citizenry when they make their positive law, at least with respect to these two topics, slavery, and abortion. An additional thing he notices, however, is that the slavocrats never sought to shut down state-level legislative debate/action on slavery in the North, but that by working through the Court, the progressivists essentially did manage that with respect to abortion, in all the states.
Picking up a few pages later, he says:
How would this claim to kill, for private reasons, be cabined any more readily than that principle of enslaving other men, whose reach and dynamic Lincoln saw with an unsettling accuracy? …a people who have made themselves suggestible to these things have ceased to be a democratic people. In regard to slavery, I think that argument, offered by Lincoln, can be understood as literally true. And if that argument at the core is the same thing, could the same charge be leveled today?
One aspect of the larger argument Arkes is speaking of here is Lincoln’s rhetorical query, made in several speeches, about what the principle which purported to justify slavery of blacks really was, and whether it could be logically confined to that case. I.e., if slavery of blacks was justified on the basis of a certain quantifiable (or presumed) inferiorities of African civilization, would it not be right for those Anglo-Americans who could claim a greater level of civilized accomplishment to enslave Anglo-Americans with lesser claims to them? Or at least, to demand they receive some kind of lesser legal status? Ditto with intelligence, skin color, etc. The way this cuts against the single-status citizenship needed for any democracy, let alone against a Declaration-grounded one, should be obvious.
[Many educated people now seem to have] …grasped hold of this right to abortion as though it were now the central right, the touchstone of our liberties, because it is the guarantor of sexual freedom. And sexual freedom seems to be taken now as the most fundamental freedom of all, perhaps because it is so evidently “personal.” But in taking hold of abortion as a fundamental right, a right now bound up with the regime, people seem to have backed themselves into the position of affirming one or both of the following propositions:
“I have a ‘right,’ anchored in the Constitution, to kill another human being, a child in the womb, if the advent of that being would adversely affect my interests, disrupt my plans, cause me embarrassment.” That is, do we not find among some of our people an unashamed claim now of a right to kill for their own convenience? If so, that must be a novelty in our tradition, and could it be anything other than sobering or terrifying? Still, there is enough of a moral reflex in our people that most of them, I think, would recoil from that kind of claim. To their credit, they seek to avoid that way of framing the principle. By trying to avoid it, they find themselves backing into a second proposition, even more portentous yet—namely:
“The being I would kill is not a human being, and it is not yet a real person. But any evidence from embryology or genetics would be quite beside the point, for the decisive question is whether I myself regard the being as human. Or to put it another way, my right here is the right to decide just who is a human being, on the strength of my beliefs, and as it suits my own interests.” That is, I may not have a right to kill any other human being as it suits my interests, but I have a right to decide just who is a human being when it comes to killing or disposing of that being, as that suits my interests. Either that claim reduces to the same thing, or it announces a principle, as I say, even more radical and unsettling yet.
I can report…that a surprising number of people, products of the best colleges and universities…, are indeed willing to affirm one or both of these propositions, as part of their defense of the right to abortion. And I would submit that a right to kill, cast in those terms, will not be cabined, any more than the claim to enslave could be cabined. But as we move through this series of discrete steps, there should no longer be anything unthinkable… [in the proposition that] a people who have incorporated the understandings contained in these steps may no longer be a democratic people. …in all strictness they cannot count themselves as part of an association devoted to the end of securing the constitutional rights of other members of the community, for they cannot give an account any longer of why other human beings have a claim to be the bearers of “rights” in any strict sense. They cannot vindicate their own rights, and for that reason, they are not in a position to vindicate the rights of others.
Incidentally, that helps me make some sense of what still stuns me about the Covid/Vax Disaster of the last two years: the willingness of so many to coerce others to take the experimental medicine, even at the threat of losing their livelihood and equal citizenship status (yes, those denied a “passport” or hit with a mandate really are made into a second-class citizen, a status that remains as long as the passport is required or the mandate is not rescinded). But back to Arkes, skipping several pages forward:
In order to defend that right to abortion, they were compelled to reject the deep logic of “natural rights,” for that logic would envelope the child as soon as the child begins to be.
Some of these points, including the last one I’ll leave you with, you can watch Hadley deliver in this lecture:
Arkes likes to use vignettes to make his points, and this last one comes from a pro-choice protest rally:
One young women was there holding her daughter, born only two weeks earlier. She explained to the interviewer that she was there for the sake of preserving, for her daughter, the same “reproductive rights” that she had enjoyed—meaning, of course, the right to have destroyed that child right up through the time of birth.
But if her daughter had possessed those reproductive rights as rights that were part of “women’s rights,” it becomes apt to ask: what was the source of those rights, and when did she acquire them? Were they a species of “natural rights?” If so, they flowed to her as a human being, or as a woman, and those rights would have come into existence as soon as she herself began to be, or began her existence as a female. But in that event, she would have been the bearer of those rights when she was in her mother’s womb, and her mother could not have held a franchise then to sweep away all of her rights through the simple device of removing, at a stroke, the bearer of those rights. …
But obviously, that could not have been the understanding of the mother, for her own “reproductive rights” evidently enjoyed a certain trumping power. They clearly overrode any rights possessed by the child. Plainly, the child had a claim to exist, as the bearer of rights, only when the mother decided to confer upon her the privilege of living. In other words, the child became a rights-bearing person only when the mother, in a grand Nietzschean gesture, said in effect, “I permit you to live. I confer upon you, now, dignity and standing.” But if the child gains her rights in that way, they could hardly be natural rights, and indeed they may hardly be rights at all. For they do not begin—they cannot begin—with the sense that there is anything intrinsic in the child that we are obliged to respect, or any objective truth that we are obliged to respect as truths, when they do not accord with our own interests.
I’m going to skip a few smaller steps in the argument—all of these quotations are from chapter six—to bring us to this final conclusion:
Could our rights, after all, have an objective standing, while we ourselves do not? …In short, the people who sign on to the “right to abortion” in the radical style of our current laws—a right to destroy a dependent human life at any time, for any reason—those people set in place the logic that deprives them of all their rights. But not only “them” : …it affects all of us with its radically diminished state.
I will report that Arkes’ arguments on these topics are compelling enough, however, that one is obliged to take them seriously—when reading his book on Justice Sutherland’s key decisions and dissents, I found myself more often convinced by Arkes than not. That is, I am readier to follow him some of the way on these quite “classic liberal” paths of constitutional reasoning, than I am with constitutional scholars who more explicitly profess libertarianism or classic liberalism, such as Randy Barnett or Richard Epstein.