Copyright (c) 1999 First Things 90 (February1999): 16-20.
In its famous 1973 decision Roe v. Wade, the United States Supreme Court mandated elective abortion up to viability, and abortion for broadly defined "health" reasons (i.e., virtually elective abortion) thereafter. That opinion contains a deep contradiction that can be understood as a conflict between what I will call "nominalism" and "realism." The Court asserts in effect that the unborn child has no real nature, that what it is is solely a matter of conventions concerning names (nomina in Latin). Yet the moment of birth is assumed to mark an essential difference, a real (not merely conventional) transition to a living entity, human in nature.
In the past twenty–five years, this "birth wall" has been largely dismantled or, to use appropriately the more fashionable expression, "deconstructed." That is, the purely nominal character of the birth difference has become increasingly accepted by those on both sides of the abortion debate. My purpose here is to elucidate this shift and to show the possibilities and perils of our emerging legal world.
Roe’s nominalism can be seen most simply in Justice Harry Blackmun’s well–known assertion that the Justices "need not resolve the difficult question of when life begins" in order to justify the Court’s requirement that legislators treat the fetus at most as "the potentiality of human life" right up to the moment of birth. There is no need, he says, to answer this question because the diversity of answers given by others shows the question to be unanswerable, at least at present. But surely the law may take controvertible stands, and it may seek to minimize the possible harm of error even where it has no access to truth. Blackmun’s insistence that what we call the fetus does not matter seems to imply a much more radical agnosticism: the assumption that the names we give to pre–born human beings are wholly conventional, that one can in principle never say that abortion really takes a human life.
Blackmun’s justificatory history of permissive abortion practices bears out this appearance of deep–seated nominalism. Let me explain. In order to decide whether or not practices of past ages can be justified today, we ought to look not only at the practices themselves (e.g., practices permitting abortion), but also at the beliefs about values and facts upon which those practices were based. If those underlying values now seem to us quite mistaken, the practices arising from those beliefs hold no authority for us today. Similarly, we cannot honestly invoke the authority of past scientific conclusions if we now see that the data upon which the conclusions were based were incomplete or mistaken. If we seek to know what is real, we cannot rest content with labels. We have to inquire into reasons.
Yet throughout Justice Blackmun’s lengthy surveys of past practices allowing abortion, he never once asks whether or not the beliefs upon which those practices were based are in fact ones that he considers admirable or accurate. (By contrast, by the way, he occasionally does try to refute past reasons for restricting abortion—such as to protect the mother’s life.)
For example, Blackmun refers often to "quickening" as a popular dividing line, without once mentioning that modern medical knowledge shows this "event," as he calls it, to be an illusion. The overall impression Blackmun gives is that whether and when abortion is allowed is an open choice, with most cultures voting for abortion.
At the same time, Blackmun suggests (without exactly stating) that birth makes a real difference. Such a claim is implicit in his refusal to find that constitutional personhood or actual human life begins "before live birth." In any event, Justice John Paul Stevens, writing thirteen years later in support of Roe v. Wade, makes clear the necessity of what I have here called "the birth wall." Concurring in Thornburgh v. American College of Obstetricians and Gynecologists (1986), he insists that "there is a fundamental and well–recognized difference between a fetus and a human being; indeed, if there is not such a difference, the permissibility of terminating the life of a fetus could scarcely be left to the will of the state legislatures." In the next sentence, Stevens makes clear that, in his view, even "the nine–month–gestated, fully sentient fetus on the eve of birth" is not yet a human being.
Stevens gives no explanation for his claim that a fundamental change at birth is required in order to justify legal abortion. But one basis for his view is surely the principle of human equality that underlies both our ethics and our law. There must be a real and deep difference between human and nonhuman entities in order to give force and limit to the normative demand for equal protection for all humans. If any and all entities could be defined at will into or out of humanity, human equality would have no practical significance. Insofar as human equality does make practical demands on us, it follows that we are politically committed to ontological realism. Stevens has to claim that a fetus and an infant are different kinds of beings in order to avoid recognizing an equal right to life before and after birth. Only if expulsion from the womb gives the fetus a human nature for the first time is late–term abortion easily justified.
We are thus bequeathed a curious antinomy by Roe. We are to presume that the unborn child or fetus has no inner nature of its own. What it is called is a matter of convention or preference, for it is not "really" anything at all. At the same time, we must assume that birth is a bright line, a moment when (in reality not merely in convention), by leaving the uterus, the fetus becomes undeniably one of us. In other words, we are to be skeptical nominalists prior to birth, but credulous realists about birth itself.
It should be obvious, even to Stevens, that the notion of a clear, fundamental difference at birth is not, shall we say, viable. The many postmodern nominalists among us (especially among academics) can hardly be expected to accept the mere assertion that a bright line between human and nonhuman exists at birth. If definition in principle is social construction, Stevens’ definition of humanity will inevitably be deconstructed by those who have the political will to do so—i.e., those interested in protecting the unborn or in justifying infanticide (of which more below).
But even realists must in the end reject the birth–wall thesis, because it claims that what something is depends upon where it is. It makes the fundamental nature of the perinatal entity depend solely upon location. But location cannot determine a being’s inner nature, though location may well affect how that being functions for others and thus affect what they name it. That is, the jurisprudence of Blackmun and Stevens abjures the search for the nature of the fetus prior to birth, where a realist would search it out, while relying on a form of naive realism about birth itself, where the fetus/ infant difference cannot be more than nominal. Blackmun and Stevens would have us believe the child born prematurely at seven months to be a human being, while its more developed cousin in the womb overdue at nine and a half months is still a creature without a fundamentally human nature. Without an appeal to some supernatural change such as the insertion of a soul at first breath, an appeal which neither judge makes nor constitutionally could make, such a belief is quite simply absurd, beyond the limits of even the most extreme credulity.
The absurdity of the birth wall has not caused it to fall entirely. The Supreme Court in fact reaffirmed Roe v. Wade in 1992 in Planned Parenthood v. Casey, but it did so without claiming that birth really makes a difference, explicitly avoiding any claim that Roe was rightly decided in the first place. Instead, Casey based the right to abort in large measure on stare decisis, binding precedent, which is in Casey a doctrine of court vanity and positivism. Past decisions cannot be overturned just because they were based on fallacious reasoning. Fidelity to the Constitution is not by itself a sufficient reason to right old wrongs. Only on the basis of new information not available to the earlier Court can erroneous holdings be overruled. Except in such circumstances, to correct past mistakes would undermine the Supreme Court’s prestige, Casey argued, particularly so on matters of great controversy. The abortion fiat stands, but only as such. Not willing to deny (or even explicitly to consider) that millions of actual human lives are being lost under Roe, Casey says simply that the Court has spoken, causa finita est.
Referring to "the interest of the State in the protection of ‘potential life,’" also characterized as "a legitimate interest in promoting the life or potential life of the unborn," the outcome-determinative opinion of Justices Sandra Day O’Connor, Anthony Kennedy, and David Souter declared in sum:
We do not need to say whether each of us, had we been members of the Court when the valuation of the state interest came before it as an original matter, would have concluded, as the Roe Court did, that its weight is insufficient to justify a ban on abortions prior to viability even when it is subject to certain exceptions. The matter is not before us in the first instance, and coming as it does after nearly twenty years of litigation in Roe’s wake we are satisfied that the immediate question is not the soundness of Roe’s resolution of the issue, but the precedential force that must be accorded to its holding.
There is good news and bad news in Casey’s doubts about Roe. The good news is that, since the Court no longer assumes that a magical change comes about at birth, the unchanging identity of the child before and after birth can be affirmed in law—provided always that the ultimate right to abortion be preserved. Postnatal realism can begin to replace prenatal nominalism. If the child has real dignity outside the womb, it must have dignity inside—since location cannot make an essential difference. Again in the words of O’Connor, Kennedy, and Souter: "Regulations which do no more than create a structural mechanism by which the State . . . may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman’s exercise of the right to choose." For example, laws requiring a woman contemplating abortion to be fully informed about the procedure, including what it does to the fetus, were declared constitutional by Casey (overruling a contrary 1983 holding that had read Roe to forbid state attempts to dissuade women from having abortions).
Even in the earliest stages of pregnancy, a state may enact rules and regulations designed to encourage women to know that there are philosophic and social arguments of great weight that can be brought to bear in favor of continuing the pregnancy to full term: "Measures aimed at ensuring that a woman’s choice contemplates the consequences for the fetus do not necessarily interfere with the right recognized in Roe."
Though it sometimes still uses the opaque and demeaning phrase "potential life" (along with "life" and "child") for the living human fetus, the Casey decision clearly permits state anti–abortion laws to be motivated by the "legitimate goal of protecting the life of the unborn," so long as their purpose remains "to persuade the woman to choose childbirth" rather than forcibly to stop her from choosing abortion. Indeed, already in the 1989 Webster case, the birth distinction had weakened to the point where the Court upheld Missouri legislation requiring that the unborn child, from the moment of conception, be treated as a legal person except insofar as the decisions of the U.S. Supreme Court might otherwise require.
In addition to informed consent, Casey approves a twenty–four–hour period of reflection between the time the pregnant woman is given the required information and the actual abortion. But Casey’s persuade–but–do–not–actually–block principle need not stop there. After that case was decided, for example, Pennsylvania initiated a system of state subsidies for (nonreligious, of course) pro–life crisis pregnancy centers, the sort that had previously subsisted almost solely on private contributions and volunteers. And if women already in a crisis pregnancy can be given accurate factual information intended to encourage them to choose life, why not public high school students, even as part of a required curriculum? Such information may well be more effectively integrated into decision-making if it is provided prior to a pregnancy–induced sense of desperation. Just such an educational initiative appears to be beginning in Florida.
Where the Court–declared constitutional right to abortion is not even peripherally at issue, the Supreme Court has been still more indulgent regarding state action designed to protect unborn human beings. Just recently, for example, it refused to review the South Carolina Supreme Court’s decision upholding a statute punishing drug use by pregnant women as a form of "child endangerment." And at no point post-Roe has the U.S. Supreme Court ever struck down any of the laws, now found in the majority of states, that punish the killing of a fetus whenever the killing is done without the mother’s permission. In Minnesota today, an assailant who intentionally destroys a just-conceived human embryo—by battering its mother, for example—can be sentenced to life in prison for "murder of an unborn child," even if the woman was on her way to an abortion clinic at the time.
The "good news," then, is that Roe’s never–absolute birth wall was partially dismantled by the Casey decision, permitting greater recognition and protection for the child prior to birth. Roe’s postnatal realism has begun, to a degree, to displace its prenatal nominalism.
The "bad news" is of a piece with the good: The weakness of the birth wall, the absurdity of thinking that a child’s location (or its mother’s choice) can change its inner nature, can easily permit Roe’s pre–birth nominalism to expand to displace realism after birth as well. For someone committed to Roe, the realization that there is no real difference between abortion and infanticide can mean only that infanticide must, at least in principle, be permitted.
This logic can be seen at work in the current widespread support among pro-choice advocates for the right to kill a fetus during induced delivery. If the child partially outside the womb could be protected against having its brain sucked out, how could exactly the same child still wholly inside be dismembered with impunity? In order to avoid this question, the right to partial–birth abortion must be affirmed with vigor.
But even clearer, I think, has been the apparently universal support for infanticide in pro–abortion scholarship. I am thinking here of the works of people like Joseph Fletcher, Michael Tooley, Ronald M. Green, Jonathan Glover, Peter Singer, and perhaps Steven Pinker, but to my knowledge they represent not just a majority, but a very solid consensus. A survey by Don Marquis in the Journal of Philosophy showed that all pro–choice theories developed by 1989 deny that there is anything wrong prima facie with killing infants. I know of no pro–abortion scholar who has written that there is something intrinsically wrong with early postnatal infanticide. The reason is obvious: if the newborn has intrinsic (real, in our terms) dignity, then the same child located in the womb just prior to birth must have equal dignity. Indeed, if the newborn infant has inherent dignity, even the just–conceived embryo must have a like dignity, for the only humanly significant attributes possessed by the newborn are possessed as well by the embryo: membership in our species and (what comes to the same thing) design for human community, with its virtues of reason and love.
To say that actual manifestation of (rather than mere design for) these virtues is required for human dignity would be to exclude the infant along with the embryo. To focus upon the actualized traits possessed by the infant but not the embryo (e.g., size or ability to survive with less external life support) would be to include many nonhuman entities and, moreover, would be to point to traits that are ultimately just not very important to our idea of human dignity. For this very reason, the German Constitutional Court ruled unanimously in 1975, with an entirely different panel reaffirming also unanimously in 1993, that the constitutional right to life must extend throughout pregnancy. Since we know that newborn infants have human dignity, despite the fact that their uniquely human virtues subsist only as potentialities, we cannot deny that same dignity to the unborn, who possess those same potentialities. In the words of the German court:
The process of development . . . is a continuing process which exhibits no sharp demarcation and does not allow a precise division of the various steps of development of the human life. The process does not end with birth; the phenomena of consciousness which are specific to the human personality, for example, appear for the first time a rather long time after birth. Therefore, the protection . . . of the Basic Law cannot be limited either to the "completed" human being after birth or to the child about to be born which is independently capable of living. . . . [N]o distinction can be made here between various stages of the life developing itself before birth, or between unborn and born life.
Many pro–abortion academics do claim to discern a bright line at a later, post–infantile stage of human life. For example, H. Tristam Engelhardt, Jr. has averred that true personhood inheres only in the normal adult human. Such thinkers are still realists; they just think that what really matters begins quite a bit later than birth. And, in their favor, it must be admitted that almost any developmental point they might choose—e.g., self–consciousness, the age of reason, even puberty—will be more real and thus more arguable than Roe’s choice of birth. But can such points remain bright lines in the postmodern era? If the existence of the self is a cognitive illusion, as some argue, how can self–consciousness really matter? If reason is only manipulation, an epiphenomenon of the will to power, why should it matter more than, say, muscles? It is vain to suppose that new attempts to construct real walls against killing can be successful in our age of deconstruction.
Rather than search vainly for a new bright line after birth, more perspicacious pro–abortion jurists have opted to rid themselves of the principle to which we pointed early in this essay, a principle that makes it necessary to have bright lines in the first place: human equality. If human beings can be treated in radically unequal ways, if they need not even in principle be accorded equal protection under the law, then those who favor abortion need not be disturbed by the continuity of human life. If unequal treatment of human beings is acceptable, the need to assert a fundamental difference between fetus and infant disappears. Why bother wracking one’s brain to find a difference if they need not be shown equal respect, even granting their common humanity?
Among academics, Ronald Dworkin has perhaps done the most to advance human inequality in the law. "The less profitable effort invested in each human being, the less regrettable the killing of that being" paraphrases a non-egalitarian notion that Dworkin applies throughout the human life span, after as well as before birth.
But some of our federal appellate judges (not yet with explicit U.S. Supreme Court approval) have cut even more directly to the quick. Seeking to justify lesser state protection for the lives of those terminally disabled, in 1996 Judge Roger Miner wrote for the Second Circuit, "Surely the state’s interest lessens as the potential for life diminishes." For the Ninth Circuit in the same year, Judge Stephen Reinhardt wrote: "[The strength of] the state’s interest in preserving life . . . is dependent on relevant circumstances, including the medical condition . . . of the person whose life is at stake." Judge Robert Beezer, writing in dissent, countered that the court is thus reexamining "the historic presumption that all human lives are equally and intrinsically valuable," and that this reexamination may be "a mere rationalization for house–cleaning, cost–cutting, and burden–shifting—a way to get rid of those whose lives we deem worthless."
Perhaps because of Judge Beezer’s forceful challenge, Judge Reinhardt sought to bolster his position with the Supreme Court’s jurisprudence denying equal protection to the unborn:
In right–to–die cases, the outcome of the balancing test may differ at different points along the life cycle as a person’s physical or medical condition deteriorates, just as in abortion cases the permissibility of restrictive state legislation may vary with the progression of the pregnancy. . . . [B]oth types of cases raise issues of life and death.
Judge Beezer did not attempt to deny the majority’s analogy to abortion law, just to narrow it:
[I]n the abortion context, the Supreme Court tells us that the state’s interests in fetal life are weaker before viability than they are once the fetus becomes viable. . . . A state’s interest in preserving human life is stronger when applied to viable beings than it is when applied to nonviable beings. Like a first–trimester fetus, a person kept alive by life–sustaining treatment is essentially nonviable. A terminally ill patient seeking to commit physician–assisted suicide, by contrast, is essentially viable. The patient may be inexorably approaching the line of nonviability. But the patient is still on the viable side of that line, and consequently enjoys the full protection of the state’s interest in preserving life.
Of course, since even fully viable fetuses enjoy nowhere near the "full protection" of the Constitution under Roe and Casey, Judge Beezer’s analogy is cold comfort even for the disabled person capable of surviving without life supports. If such a person counts only as much as a viable fetus, he will get far less than equal protection from our law.
In denying the constitutional duty of equal protection, are these appellate judges doing anything more than following the lead of Casey? In holding that Roe must stand even if it was wrongly decided, Casey proclaimed that the State’s duty of equal protection falls before stare decisis and the prestige needs of the Court. Reinhardt and Beezer read that case well.
The honesty newly permitted by the Casey decision thus cuts in two directions. The fact that the same child exists within and without the womb can lead us to two opposite conclusions. We can begin to treat the pre–born with respect equal to that which we now show to already–born human beings. Or we can come to treat some of those already born with the same disrespect we now show toward the pre–born. We can become more realistic about the entire human life span, or we can begin to doubt the human nature of others thought inconvenient and less capable. Or we may finesse the whole problem of nominalism vs. realism by denying the State’s duty of equal protection, leaving the weak to their own devices regardless of whether they are human in nature or only in name.
Richard Stith is Professor of Law at Valparaiso University. He holds a Ph.D. in religious studies, as well as a law degree, from Yale University. An earlier version of this essay was presented at a plenary panel discussion on United States abortion law at the University Faculty for Life annual meeting in Toronto last June.