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Good May Yet Come
Gonzales v. Carhart opens up a possibility, albeit slight, for further restricting abortion.


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Hadley Arkes

The Next Steps
Then what kind of “good” may spring from a decision so limited? The decision in Carhart reaffirms yet again Roe v. Wade, but something else may be at work beneath the surface. There is a certain dynamism that comes into play when legislators are allowed to take hold of the matter again. About thirty states had passed laws on partial-birth abortion before they were invalidated in Stenberg v. Carhart in 2000. The states can now pass their own version of the federal bill, just tracking the language of that bill. That is all good practice. And once legislators get used to legislating again, other things may readily follow. Kennedy pointed out that the Court in Casey had upheld the requirements of informed consent. The legislatures can now start enacting those provisions again — most notably, they may provide for the use of sonograms to assure that the pregnant woman has something more than a vague impression of the child she is carrying. The viewing of a sonogram could be required, or it may simply be offered in the interest of letting a woman know what she is choosing.

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In India, the use of sonograms has penetrated even poor areas, and brought the beginnings of a demographic crisis: Families anxious for sons have been altogether too willing to abort female babies. And given the sensibility of the time, the disposition of the government in India has not been to ban the killing of babies based on their gender, but rather to forbid clinics to make the information available. Of all things, we are hearing denunciations of these multinational capitalist firms, like General Electric, which do such underhanded things as to produce the equipment that gives people such information about their unborn children.

The next plausible move, then, is to bring back the scheme of banning any abortion performed on the basis of the sex of the child. My hunch is that that position, too, would command a large level of support in the public, comparable to the level of support for banning partial-birth abortion, and it too would recruit people who call themselves “pro-choice.”

But if legislators could take that modest move of banning abortions on the basis of sex, the public mind could be prepared for reasoning about the next step: barring abortions based on the disability of the child. In surveys in the past, more than half of the public were opposed to aborting a child if the child was likely to be born deaf. The opposition seemed to be invariant by the period of gestation. My own reading was that, if people thought it was wrong to kill someone because of his deafness, they did not think that the wrong varied with the age of the victim.

Here the legislatures could invoke the body of their laws dealing with discriminations against the disabled. And then perhaps they could get to the point of banning abortions after the onset of a beating heart. One survey recently found that about 62 percent of the public would support that kind of restriction. It is worth noticing, too, that in none of these cases except that of the beating heart would the legislation start offering protections based on trimesters or the age of the child. There would be no need to play along, and confirm, the perverse fiction that the child becomes more human somewhere in this scale of age, or that it is legitimate to kill smaller people with reasons less compelling than the reasons we would need in killing larger people.

The Effects of an Impulse
In the most curious way, then, a decision so narrow, so begrudging and limited, may invite a series of measures simple and unthreatening, but the kinds of measures that gather force with each move. We need to remind ourselves that we have seen such things before. We may recall, in that vein, the Emancipation Proclamation. It was limited, as a war measure. For Lincoln did not have the authority to strip people of what was then their lawful property in slaves. The Proclamation freed only those slaves held in areas that were in rebellion against the government. It did not cover the slaves held in Delaware, Maryland, Kentucky, Missouri. And yet … it was understood instantly and widely in the country that this measure had an “anti-slavery impulse.”

The decision on Wednesday, in Gonzales v. Carhart, was severely limited and diminished in its practical effects. But rightly or wrongly, there may be a sense that the decision opens the doors now; that it invites legislators and political men and women to deliver themselves from the reign of judges, and set their hands to this task once again.

– Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College, and one of the authors of the Born-Alive Infants’ Protection Act.

Just Can’t Get Enough? The Editors read the Gonzales decision. Hadley Arkes writes on the importance of little things in long-term legal battles. Michael New makes a case for the effectiveness of state restrictions on abortion. Ramesh Ponnuru sums up the state of the abortion wars and gives a little history of how the press bought the pro-abortion line on partial-birth abortion.


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