A Reply to "The American Political Tradition and Abortion"

In the October issue of ON PRINCIPLE Dennis Teti objects to the argument of my article, “The New Federalist: America’s Founding Documents and Abortion” (OP, June 1995), on the grounds that I fail to acknowledge that a fetus is a person with unalienable rights protected by the Constitution. Teti assimilates my argument to the position of Chief Justice Taney, the author of the majority opinion in the Dred Scott case, and to Stephen Douglas’ view that the legality of slavery was a private or state matter. According to Teti, this assimilation is justified because the “moral issues involved in slavery and in abortion are not just similar but the same.” Accordingly, my argument that the authority to decide the legality of abortion rests with the citizens of the states and their legislatures, merely reiterates “the old justification” for slavery, namely, that “the states may constitutionally abandon the natural rights of any other
class.”

Teti appears to contradict himself, however, when he compares my position to the “pro-choice” view of Douglas, that the states have the authority to decide whether they will be free or slave; and then identifies me as a “pro-life” spokesman. At any rate, according to Teti, my argument can only obscure the abortion debate, because in his view I maintain that abortion is “an issue of individual morality subject only to the state police powers,” whereas he emphatically maintains that abortion is not an issue of individual morality.

I did not argue nor do I believe, however, that abortion is a matter of “individual morality,” if that means that the morality of abortion is merely whimsical. What I argued is that, according to the principles of federalism, especially as expressed in Federalist 45, the legality of an issue such as abortion should be decided in the state legislatures in accordance with the prevailing moral consensus, with the citizens of each state being subsequently bound by the laws enacted by their legislature. As it stands, however, the current abortion law was made by the Supreme Court, and this act violates the principle of the separation of powers. Perhaps Teti would be satisfied were the Court to discern in the penumbrae and emanations of the Constitution, that a fetus has a right to be protected from abortion; but in that case, the end would justify the means. I am not willing to give up the principle of the separation of powers even if it would mean making abortion i
llegal.

I agree entirely with Teti that abortion is morally wrong and the basis of my agreement is the reason he gives: the fetus is a human being. Furthermore, I agree with him that, as a person, the fetus has rights protected by the 5th and 14th amendments. The Supreme Court has not the authority to pronounce upon the humanity of the fetus, just as it had not the authority to pronounce upon the humanity of slaves.

Furthermore, polls regularly show the although many Americans–perhaps even the majority–are generally opposed to abortion, they would be willing to allow it under some circumstances. If those circumstances were codified as state law, then the due process clauses of the 5th and 14th amendments could be observed, and the aborting of a fetus would be subject to local control, and thus would at least not be as capricious and frivolous as it now usually is.

Teti, however, asserts without qualification that the fetus is a person whose rights are protected by the Constitution and he appears to believe that the right to life of the fetus is unconditional, despite his agreement with me that the rights secured to us under the Constitution are not secured unconditionally. Teti obviously does not regard the status of the fetus and its rights as resulting from a consensus: the fetus is not a person because we agree that the fetus is a person. Teti also states, however, that a political society based upon “the principles of natural rights” must “rest on an agreement or consensus as to who is the subject of those rights.” This is in effect what Taney argued in the Dred Scott case, and what Douglas argued about slavery. When the Declaration was written, the consensus of the founders, so Taney said, was that the phrase “all men are created equal” did not apply to slaves. Douglas argued that it was up to t
he majority of voters in a territory whether it would enter as a slave or a free state. Does Teti believe that it is a matter of consensus whether a fetus is “the subject of those rights”? If it is a matter of consensus, how is that consensus to be obtained? If it is not, but is rather a moral imperative, how is that imperative to be put into law so as to secure or reflect the consent of the governed?

What I offered was a possible way out of the current vexed state of the abortion issue, along with an account of how the violation of certain fundamental principles of federalism has brought that state about. I proposed that abortion law not be a matter for the courts to decide, and that it not be a national issue. My proposed solution certainly is not morally neat, but political life rarely is. The moral and the legal do not necessarily coincide.

Perhaps my view does obscure the abortion debate as Teti charges; and I agree that the issues of abortion and slavery resemble one another is certain respects. But in my view, it would be at least as obscurantist to push the comparison too far, so that certain obvious and morally relevant differences between abortion and slavery are obliterated. Furthermore, it may gratify Teti’s understandable moral indignation over abortion (an indignation which I share) to compare it to slavery; and it is a clever piece of rhetoric, since our foes in the abortion fight are usually liberals, who often equate being conservative with being racist. But in the disagreement between Teti and
me, which is a disagreement over means, not ends, such a tactic runs the risk of being divisive.

Scott R. Stripling is Director, National Center for America’s Founding Documents, School of Education, Boston University.