America Is a House Divided on Abortion. Can It Stand?

Signs at the March for Life rally in Washington, January 22, 2015. (Alex Wong/Getty)

In 1829, a jury of twelve white men convicted John Mann of Chowan County, N.C., of the battery of a slave, a woman named Lydia, hired out to him by her owner. Such a verdict was hardly unprecedented in the antebellum South. But it fell to Judge Thomas Ruffin, then an associate justice of the state’s supreme court, to reluctantly overturn the jury’s verdict — on grounds that would make the case famous nationwide: Because the end of slavery, Ruffin wrote, “is the profit of the master, his security and the public safety . . . the power of the master must be absolute, to render the submission of the slave perfect.” It was a fundamentally unjust arrangement, Ruffin believed, but dismantling it was not within the purview of a judge bound by the people’s duly enacted law. Ruffin took no pleasure in his own decision:

I most freely confess my sense of the harshness of this proposition, I feel it as deeply as any man can. And as a principle of moral right, every person in his retirement must repudiate it. But in the actual condition of things, it must be so. There is no remedy. This discipline belongs to the state of slavery. [Master and slave] cannot be disunited [by the court], without abrogating at once the rights of the master, and absolving the slave from his subjection.

We were, he said, under slavery’s “curse.”

Ten years later, though, Judge Ruffin, by then chief justice of the North Carolina supreme court, would uphold the murder conviction of a slave-owner for the killing of one of his slaves.

In his essay “Slavery and the Moral Foundations of the American Republic,” historian Herbert J. Storing offered Ruffin as an example of a common phenomenon in the slaveholding South: “Southern judges giving public utterance to the excruciating agony of trying to reconcile the law that protected slavery with the principle of justice that condemns it.” In both South and North, this agony existed, sometimes because of positive law, sometimes because of constitutional provisions — the three-fifths and fugitive-slave clauses, for example. The early American republic experienced an at-times profound schizophrenia on the subject of the bondsman. The country was, as Lincoln would call it, “a house divided” on a central question: Were slaves persons, and thus entitled to the rights of men enshrined in America’s founding? Or were they property, to be disposed of accordingly?

America resolved that particular dispute (bloodily, alas), but the debate did not end. It continues today, just about a different class — the unborn.

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The revelation that Planned Parenthood has been trafficking the body parts of children it aborts — at the rate of $30 to $100 “per specimen,” according to Planned Parenthood Federation of America’s senior director of medical services, Dr. Deborah Nucatola, caught on video by the Center for Medical Progress — has met with a response divided along lines that parallel the slavery debate: those who believe the unborn are persons, endowed with the “right to life”; and those who believe the unborn are property, disposable and (by extension) exchangeable (within the confines of existing law).

The laws in our country say both that a fetus has moral worth, which the state is duty-bound to protect; and that it has no moral worth, provided the mother says it does not.

And as in the 19th century, America’s law has confused the issue. Consider the laws pertaining to fetal death. As of March this year, 38 states had some form of fetal-homicide law, and 23 of those had laws that applied to any point from “conception” or “fertilization” onward. That is, nearly half of states imply that the unborn have some sort of moral value from the moment when sperm meets egg. Alabama, for example, defines in its penal code ((§13A-6) a “person” as a “human being, including an unborn child in utero at any stage of development, regardless of viability,” and can prosecute for murder anyone who causes the death of a child in utero.

Yet the law, of course, does not apply to abortion. So Alabama (and every other state — the exemption is universal) has promulgated two mutually exclusive understandings of a fetus: that it has moral worth, which the state is duty-bound to protect; and that it has no moral worth, provided the mother says it does not. (The matter is seemingly complicated by the question of “viability.” But besides relying on distinctions that, as scientific findings continue to demonstrate, are far from clear, making a fetus’s “viability” the gauge of its moral worth is largely a dodge. Does the victim of an assault who loses her 14-week-old baby find consolation in the consensus that “it wasn’t really a person”? “Viability” as a benchmark is a category error, an attempt to answer a non-scientific question in scientific terms.)

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All of this, of course, rests atop the foundation of Roe v. Wade, a far more radical, far more sweeping decision than Roger Taney’s Dred Scott decision. By finding in the Constitution a right to abortion, the court’s majority imposed nationally what was then, and remains today, far from a universal opinion of the moral value of the unborn. State by state, voters have been chipping away at that foundation ever since.

But neither the courts nor the franchise (pace Stephen Douglas) could be permitted to be the arbiters of the question of slavery, Lincoln understood. Just as Judge Ruffin declared, in the Mann case, that it was the essential wrongness of slavery that put it beyond the power of the courts, so Lincoln pleaded with his fellow citizens to see that slavery could not be subject to the ballot box — because it offended the principles of justice available to human reason and consecrated by the Framers, principles that could not be amended away or voted down — not, that is, without dooming the whole American project. To accept slavery as a right of self-government, Lincoln warned in his first debate with Douglas, would be to “blow out the moral lights” of the nation.

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Is the same argument not operative today? Surely the great expense to which so many abortion providers go to present their activity as “women’s health” or to euphemize abortions as “terminations,” or the disinclination of Planned Parenthood — as Nucatola admits on camera — to trumpet publicly its side industry in the hawking of “fetal tissue,” suggests that they know they would not show kindly under the beam of most Americans’ “moral lights.”

But what is to be done? America’s cognitive dissonance in its approach to slavery was so intense as to provoke dissolution of the union and war. The abortion debate does not threaten that sort of fracture, but it is every bit as urgent a question of justice, of fidelity to our fundamental tenets. In the Civil War, we fought to vindicate every man’s right to liberty. What is at stake in the current conflict is the only right more fundamental: that of life. Writing at Red State, Leon Wolf captures something of the gravity of the question:

If the First Lady of the United States could say 8 years ago that for the first time in her adult life she was proud of her country, then I suppose I can say that for the first time in my adult life I’m ashamed of my country. If the price of being publicly loyal to it [is] pretending that I’m basically okay with sharing a national identity with the people who have allowed this monstrosity to continue unchecked since 1973, or that my disagreements with people who are okay with the sale of baby parts are “mere politics,” then count me out of this ridiculous charade.

Slavery pre-existed the republic. As Lincoln observed in 1858, “We had slavery among us, we could not get our constitution unless we permitted them to remain in slavery, we could not secure the good we did secure if we grasped for more.” In other words, a tragic compromise was required.

Abortion, though, and all of its concomitant crimes, we brought upon ourselves. It is our truly original sin. And if the judgments of the Lord are, indeed, true and righteous altogether, surely we ought to be concerned.


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