Francis J. Beckwith
January 22, 1998 marks the 25th anniversary of Roe v. Wade, perhaps the U.S. Supreme Court's most controversial decision. Yet, it is probably the least understood. For many Americans mistakenly see it as a decision in which the government remains "neutral" on abortion.
Take for example the comments of Vice President Al Gore in a speech he gave on January 22, 1997, at a gathering sponsored by the the National Abortion and Reproductive Rights Action League (NARAL). In his speech he said that his position on abortion was not pro-abortion, but rather, prochoice, since he was not saying that abortion was good or bad but only that pregnant women should be allowed to choose for themselves what to do without government interference. The Vice President's position is quite clear: those who are prochoice are neutral and tolerant while those who are prolife are partisan, intolerant, and trying to force their moral views on others.
However neutral this reasoning may sound, it is not. For its proponents fail to grasp the nature of the abortion debate and why some people oppose elective abortion. During the 1984 presidential campaign when questions of vice-presidential candidate Geraldine Ferraro's Catholicism and its seeming conflict with her support of abortion-rights were conspicuous in the media, then New York Governor Mario Cuomo undertook to give the tolerance argument intellectual respectability. He tried to furnish a philosophical foundation for Ferraro's stance. Cuomo failed. For one cannot appeal to the fact that we live in a pluralistic society, as Cuomo maintained, when the very question of who is part of that society (that is, whether or not it includes fetuses) is itself the point under dispute. Cuomo lost the argument because he begged the question.
Although many of us may not agree with abortion opponents, let us use our imagination and try to understand them. For one thing, it makes no sense to tell prolife activists, as they are sometimes told by prochoice activists, that "you have a right to believe what you want to believe about the fetus" and that "you don't have to get abortions if you don't want to." Imagine if you believed, as abortion opponents do, that a class of persons were being killed by methods which include dismemberment, suffocation, and burning, wouldn't you be perplexed if someone tried to ease your outrage by telling you that you didn't have to participate in the killings if you didn't want to? That's exactly what abortion opponents hear when prochoicers tell them "Don't like abortion, don't have one" or "I'm prochoice, but personally opposed." In the mind of the abortion opponent, this is like telling an abolitionist, "Don't like slavery, don't own one," or telling Dietrich Bonhoffer, "Don't like the holocaust, don't work in a concentration camp." Certainly abortion opponents may be totally wrong, absolutely misguided, or terribly misled in their view of the fetus and the moral status of abortion. But the tolerance argument does not address this.
In what is probably the most quoted passage from Roe v. Wade, Justice Harry Blackmun writes: "We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate."
But Blackmun's opinion is not an example of judicial neutrality, for it is requiring the state to leave the choice of pregnancy termination solely to the discretion of pregnant women. And thus, it is taking a position on fetal personhood. It is affirming that the fetus is not worthy of state protection and therefore can be discarded without requiring any public justification whatsoever.
Whatever one may think of this public policy, it is certainly not a neutral one.
Imagine it is the 19th-century and the Court, confronted with the issue of enslaving African-Americans, delivers this opinion: "We need not resolve the difficult question of whether blacks are human persons. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate." Suppose that the Court on that basis allowed white Americans to own blacks as property. Although the Court would be making a verbal denial of taking any position on this issue, the allowance of slavery would for all intents and purposes be morally equivalent to taking a side on the issue, namely, that blacks are not human persons. Likewise, the Court's verbal denial of taking a position on fetal personhood is contradicted by its conclusion that that fetuses are not persons under the constitution.
At the end of the day, the appeal to neutrality to support abortion rights is not neutral at all, but presupposes a partisan view of the nature of things as well as who is a member of the human community. Although put forth by its proponents as an alternative to sectarian squabbling, when unpacked, this perspective is in root and flower just as sectarian.
Originally published in The Covenant Syndicate, January 19, 1998, vol. 2, no. 79.
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About the Author
Dr. Beckwith is Associate Professor of Church-State Studies, and Associate Director of the J. M. Dawson Institute of Church-State Studies, Baylor University, where he is also associate editor of the Journal of Church & State. A 2002-03 Research Fellow in the James Madison Program in American Ideals and Institutions in the Politics Department at Princeton University, he currently serves on Princeton's James Madison Program Council on Moral and Political Thought. He writes on law and ethics, political philosophy, abortion, evolution, Mormonism, and moral relativism. You can also read Dr. Beckwith's books: Politically Correct Death and co-authored with Greg Koukl, Relativism.
