The Chicago Way of Life

The current issue of First Things includes an excellent Jody Bottum essay, "Abortion After Obama," which won't be on-line for a month, but offers this observation:
On abortion, Obama is the complete man, his support so ingrained that even his carefully controlled public speaking can't help revealing it. He's not a fanatic about abortion; he's what lies beyond fanaticism. He's the end product of hard-line support for abortion: a man for whom the very question of abortion seems unreal. The opponents of abortion are, for Obama, not to be compromised with or even fought with, in a certain sense. They are, rather, to be explained away as a sociological phenomenon --their pro-life view something that will wither away as they gradually come to understand the true causes of the economic and social bitterness they have, in their undereducated and intolerant way, attached to abortion.

This is of course the line Prof. K. (not Kmiec!) has taken --and we've duly noted here-- from the get-go; it seems obvious to me.

Which brings me to my promised answer to Prof. Doug Kmiec's recent response to my criticism of him. You can read the exchange here. I would summarize his argument as this: the natural law argument in defense of the unborn is true, but unconvincing to many people; therefore the law must remain silent on the point until such time as people of all faiths agree. He says, for example:
I assume the best argument runs something like (1) before the zygote, the Divine material is unassembled and does not factually exist in any empirically identifiable way as separate and (2) selecting any point after the zygote is arbitrary and inviting of a dangerous slippery slope that invites qualitative life assessments that inevitably are traced to power, not reason or faith. That works for me, but is so far unconvincing to my Methodist and many Jewish brothers and sisters.

I fail to see what the Divine has to do with it. There is no scriptural text in any religion I am aware of that tells us when life begins; we know it from science. It is a scientifically demonstrable fact --observable under a microscope and testable through DNA analysis-- that from the moment of conception, a distinct, unique individual life begins. This is what the nation's leading embryology textbook says on the point:

Human development begins at fertilization when a male gamete or sperm (spermatazoon) unites with a female gamete or oocyte (ovum) to produce a single cell—a zygote. This highly specialized, totipotent cell marked the beginning of each of us as a unique individual.
Perhaps it is the case that some people don't know this; if so, they're working hard not to know it. Yet even if in all righteousness they don't know it, that has no bearing on the fact. The Declaration of Independence, the document upon which all else in our system of government rests, begins its argument thus:
We hold these truths to be self-evident, that all men are created equal....
When our Founders said this, it wasn't a claim that everyone recognized or agreed all men are equal --the claim would have been absurd in the face of the existence of slavery, among other things. They meant the truth of equality of persons is logically necessary, as surely as 1+2=3. Does everyone agree that 1+2=3? Perhaps not. Only those who know what "1" and "2" mean agree.

The Founders referred to the laws of "nature"--by which they meant to say that there are logically necessary consequences that flow from the "nature" of things themselves. "Nature" or "nature's laws" are another way of saying "reason" or "the laws of reason." There is no need at all to recur to God to show when life begins. The proof is in the thing itself. I therefore couldn't really care less (and neither does the law) what any individual Catholic, Protestant, Buddhist, Muslim, Hindu, Baha'i, Atheist, Pagan, Zoroastrian or "spiritual" person has to say about the matter. The question of when life begins isn't a religious matter. In our time, the science truly is settled.

The proper question is the one Rick Warren posed to the presidential candidates last summer: at what point does a baby have rights we all are bound to respect? The "pro-choice" answer is

not until birth, and not even then if the birth takes place in spite of the mother's effort to abort.
(This was the position taken emphatically four times over by President-Elect Obama while he was in the Illinois Legislature: the right to an abortion is the right to a dead baby, even if the baby is born alive.) Mr. Obama's answer to Mr. Warren was that knowing was
above my pay grade.
Since the job of the President of the United States --for which he swears an oath-- is to protect and defend the citizens of the United States, I'd say it was precisely in his job description to know who or what constitutes such a citizen!

I see three dangers from abortion. There is the immediate mortal danger to the unborn child. There is the less obvious but increasingly recognized proximate danger to the physical, psychological and emotional health of the woman who aborts. And there is the peril to the body politic and its commitment to the belief that all men and women are created equal, endowed with unalienable rights.

Either the unborn child is not a human being, in which case the mother can do whatever she likes as a matter of self-government; or the unborn child is a human being, in which case no human being has the right to deny its natural right to life. The abortion license means enshrining in law the "principle" that one class of persons may decide the fate of another class of persons without the latter's consent. One cannot hold that view and simultaneously hold that all people are created equal. The two ideas may exist together in tension for a time, but gradually one will win out over the other as a matter of sheer logic.

For the body politic, abortion means that ultimately our foundational principle is not the equality of all --self-government-- but might makes right: tyranny, by which the strong control the weak without apology. Lincoln wrote in a personal letter:

As I would not be a slave, so I would not be a master. That is my idea of equality.

I would argue: "as I would not grant another control over my life, so I would not exercise control over another's life. That is my idea of liberty." It's liberty that's being defended by pro-lifers. I tremble for all of our liberty as I watch the logic of the abortion "right" gradually spread its tyrannical tentacles, replacing in the public mind our allegiance to the principle of equality with allegiance to the idea that some of us may do to others of us whatever a majority of us agree to. Mothers can kill their unborn children; husbands can starve their invalid wives to death; children can hasten inheritance by medical fiat; anyone weak and dependent is considered a good candidate for the "compassion" of "death by dignity." Scientists can create new individuals in labs and experiment upon them.

There is no principle you can use to justify abortion that doesn't undermine your own rights too. Be it sex, power, age, condition of poverty, health, intellect --any justification for abortion can also be used by anyone younger, more powerful, wealthier, more vigorous or smarter than you to oppress you. Whatever cudgel you wield against the unborn child will by inexhorable logic eventually reach us all. Religion's a red herring in this debate, as I assume the Jew, the Muslim, the Protestant and the atheist--equally with the Catholic-- desire to be free.

I find myself in agreement with Professor Kmiec to a large degree when it comes to the political problem of enacting a constitutional amendment when half or slightly less than half of our fellow citizens have yet to accept the logically obvious (or are fighting hard not to). Readers of this blog will know I've been highly critical over the years of the Constitutional Amendment strategy. It's politically toothless: it allows candidates for office to pledge fealty to the cause without having to take any actual political action. Constitutional Amendments are always the conclusion of the drama, not the strategy by which to reach a conclusion. Prof. Kmiec is right about that.

Where I can't follow him, however, is to the deduction that until there's agreement, the law has to be silent and pro-lifers would be better off not making waves. That strikes me as profoundly wrong on three fronts.

For starters, it ignores the practical political fact that for the vast majority of abortions that actually take place in this country each year, there exists already a great measure of agreement. Only 8% of Americans support the abortion regime created by Roe v. Wade! By wide majorities, Americans approve of parental consent laws, laws against transporting minors across state lines to obtain abortions, born-alive infant protection, 24-hour waiting periods, informed consent laws, bans on sex-selection abortions, prohibitons on public funding of abortion, bans on partial-birth abortion and bans on other forms of late-term abortion. Laws exist at the federal level and in most states reflecting this wide agreement. These laws have demonstrably lowered the number of abortions in this country: they work!

Mr. Obama --and Prof. Kmiec-- propose to undo this consensus and baby-saving in the name of consensus and baby-saving! Mr. Obama by supporting the Orwellian Freedom of Choice Act which will prohibit Americans from preventing any abortion for any reason and from expressing the level of consensus they have achieved democratically: Prof. Kmiec by supporting Mr. Obama for President and arguing now that the law must be "silent."

Secondly, what Kmiec's "silent" approach really signifies is giving up on politics. I can feel his pain; it takes fortitude to weather the two-steps-forward, one-step back series of triumphs and setbacks it takes to win a political battle. But his position seems to amount to despair that reason can convince anyone; it's a giving up on dialogue. Bills --at whatever level of government-- are precisely the means by which a self-governing people carry on a conversation with one another. To propose a piece of pro-life legislation is a way of asking fellow citizens, "don't you agree with me that this is a good idea?" or "Don't you agree with me that this practice should stop?" If you don't pose the question, most people most of the time are too busy living their lives to think about it. Probably they don't even know it's happening. There is no dialogue in a free society without politics. Period. To be silent is to give up not only on justice, but on our fellow citizens. I think better of our people than that.

Finally, while I agree wholeheartedly with Professor Kmiec that political efforts must be joined with practical help for women to overcome the pressures that tempt people into abortion (this is precisely why more pro-life activists are running adoption agencies, crisis pregnancy centers and homes for unwed mothers than lobbying!), he has made a great mistake in supporting a man for President whose argument --even more than his policies-- undermines not only the right to life but all other true rights of men. Lincoln, for example, reiterated time and again that slavery was wrong even if his powers to correct the wrong were exceedingly limited. Sometimes we can't effect justice as quickly as we'd like, but we mustn't underestimate the power of simple refusal to call evil good. We will never get where we need to be with a leader who asserts that what is morally wrong is not wrong at all, but a natural right! This is a rhetorical and moral evil unworthy of the leader of a free nation and unworthy of a teacher as fine as Professor Kmiec.