Life and Death In The House Divided
The Supreme Court’s recent decision to review a Missouri abortion case has raised the spirits of the pro-life movement. In his appeal, Missouri’s attorney general asked the Court to reconsider Roe v. Wade, the landmark civil rights decision that made pregnant women and their physicians sole arbiters over who is born and who is not born in the United States, and there are high hopes that the conservatives on the Court may seize the opportunity to begin the long process of rolling back the 1973 decision.
Historically, of course, abortion was illegal, but before 1973 jurisdiction was left up to the states, as it still is for ordinary cases of murder, arson, rape—all of which were quite properly capital crimes. However, the legal politicians on the Court decided—with no other guidance than their private imaginations—that abortion was both a technical matter that required the assistance of trained professionals (physicians willing to prostitute their skills) and a newly-discovered right to privacy of a newly-discovered oppressed minority (pregnant women).
If the Court was hell-bent on destroying children, if death were the only object, the justices could have skirted the dangerous issue of rights and restored something like the Roman patria potestas, which gave fathers the power of life and death over their dependents. Since women are equal under the law, the Court need only have recognized that such painful decisions could best be made within families. Parents would obviously have to make the decision for underage daughters who skipped the contraception chapter in their high-school sex manuals.
There is a sizable number of decent and moral people who could have lived with such a decision, although most would still complain against the Court’s delusion that it had jurisdiction. But with a few strokes of the pen, the justices virtually eliminated the family as an organic part of society by pitting fathers against mothers, and parents against children—unborn as well as born. The Court was not content to rest on its laurels, but rapidly proceeded to “protect” the rights of teenage unwed mothers against meddling parents.
Families were not the only victims. States and local communities lost their ability to regulate the health and welfare of their people. They cannot even insist that the procedure be performed in regular hospitals, much less impose any restrictions that might stigmatize abortion as immoral or express a preference for life.
All of this was to be expected. There has never been a rebellion in the name of “rights” that did not end up strengthening the central government at the expense of every institution that protects individuals from the brute power of the state. There is no other way to read such legislative breakthroughs as the Fourteenth Amendment, the Civil Rights Act of 1964, and 20 years of feminist legislation, except as deliberate assaults on the traditional privileges of families, communities, and states. By liberating women from husbands and fathers, we have, at best, made them wards of the state. At worst, we have set both men and women free from their natural element. G.K. Chesterton once wrote a story about an anarchist who went so far off the deep end as to liberate the fishes from the fishbowl. It was hardly a day before he tried to blow up a house full of people. It took us only nine years after the Civil Rights Act of 1964 to legalize abortion on demand.
But the rights issue that comes closest to the abortion controversy is not the rights of women but children’s rights. Once upon a time it used to be assumed that parents by and large looked out for their children’s best interests. In the past hundred years, however, laws have been passed on the contrary assumption, that parents either do not know or do not care enough to see that their children are property educated, clothed, and fed. Child protection statutes do not even provide routine habeas corpus protection to parents suspected of abusing their children. Worst of all, neither the laws nor the self-styled experts are willing to distinguish between normal, intact families, where the incidence of abuse is very low, and the alternative life-styles (broken homes, single-parent households, etc.), where the risk may be 40 times greater than in traditional families.
The result is that in the name of children’s rights, children can be removed from decent and caring families simply on the accusation of a teacher or a plea-bargaining childmolester, so long as the case attracts the attention of a progressive prosecutor.
After all, if children have rights they can hardly be expected to defend those rights all by themselves (although there are children’s rights advocates who insist that kids be allowed to vote, hold public office, and engage in sexual relations with each other and with adults). Who will protect the rights of children from bigoted parents? Why, the courts of course, or (as Howard Cohen suggests in Equal Rights for Children) children’s agents.
If the government ever does decide that children are legal persons, endowed with all the rights of citizens, it will be writing a death sentence not only on the family but on the American tradition of responsible self-government. That goes for unborn children as well as born. But strange as it may seem, the pro-life movement gives only lukewarm support to the states rights tactics that have a chance of winning, and actually prefers laws and amendments that would absolutely prohibit abortion by guaranteeing an inalienable right to life.
Setting aside the practical problem of attempting to impose the will of Utah and Nebraska upon the whole US, anti-abortionists ought to realize that a right-to-life amendment would not have the effect they desire. Many European countries with liberal abortion laws actually include a right-to-life provision in their constitutions, as well as a general presumption in favor of life. West Germany, for example, permits abortion if pregnancy threatens the mother’s physical or mental health, if the baby is likely to suffer from birth defects, or (through the twelfth week) if the pregnancy works a serious hardship, but the West German constitution begins with the ringing declaration that “Everyone shall have the right to life and to inviolability of his person.”
Despite the obvious drawbacks and dangers, wellmeaning opponents of abortion have increasingly come to adopt the radical language of rights as their first line of offense, extending the Fourteenth Amendment’s guarantee on the protection of legal persons to the unborn and comparing the anti-abortion campaign with the abolitionist and civil rights movements.
The only result of any declaration of children’s rights—born or unborn—will be to strengthen the government’s hand in its ongoing struggle to supplant the family. If there is an absolute and unquestionable right to life, then abortion will be only one of the options forbidden to pregnant women. What about smoking or drinking or, indeed, any activity that carried to an extreme could threaten the child’s life or reduce its birth weight?
A District of Columbia superior court has already sent one drug-abusing expectant mother to jail in an effort to protect her unborn child. The lady’s actual offense was check forgery, for which she would have ordinarily received probation, but the judge decided on the stiffer penalty when a drug test turned up positive for cocaine. In a parallel case in California, a mother of a brain-damaged child was jailed for ignoring her doctor’s injunction against using drugs and engaging in sexual activity during her pregnancy. The case was dropped, but there is a mounting debate over fetal rights and women’s rights.
If the state is to protect life at any cost, doesn’t this imply a financial obligation to preserve the life of any child, no matter how deformed or hopeless, no matter what it takes? That means a considerable outlay of tax money, and in parallel cases, when the state assumes the burden, it also lays down the law. The routine justification for antismoking laws and seat belt regulations is the cost imposed on the public. It does not take too much imagination to foresee the time when couples will have to submit to genetic screening if they wish to receive a permit to conceive.. Couples who defied the law would be compelled to abort the illegal (and therefore rightless) child.
Because we are not all entirely crazy, this stark scenario might not be played out to the last act, but the underlying logic is inescapable. Whenever the state discovers or redefines a right, the implementation of that right is subject to state control. Government, and not families, would have to decide cases of conflicting rights. Just this year, a judge decided that even though child custody was granted to a divorced mother, she could not rear the child as a Catholic. When the mother persisted in taking the child to Mass, she was given a jail sentence. The sentence was suspended, but there is no doubt that she will go to jail if she attempts to exercise her freedom of religion again.
The dialectic of rights always turns to tragedy in which “Force will clash with force and right with right” (Aeschylus' Choephoroe) as each side turns inevitably to illegal demonstrations and even violence. Increasing numbers of prolifers, frustrated by political failure, see Operation Rescue as the answer. Prominent evangelical clergymen now endorse Operation Rescue’s illegal tactics, and Jerry Falwell has even gone to Atlanta to get himself arrested in demonstrations that must remind Atlanta police of an earlier generation of illegal protests. Mr. Falwell had hoped to enlist the support of other prominent Southern Baptists, but Atlanta minister Charles Stanley, former president of the Southern Baptist Convention, was not persuaded by his colleagues: “If blocking an entrance is permitted, then why not . . . even destruction of those who are performing the procedure? Anarchy and chaos will ultimately result.”
Anarchy and chaos—what else is the object of civil disobedience? The most conspicuous protester is Joan Andrews, sentenced to five years in prison for her part in taking over an abortion facility in Florida. Any humane person can understand her motives and wish the judge had exercised more clemency. But frankly speaking. Miss Andrews did not make it easy. She refused to cooperate in any way at her trial, declaring the United States to be a Nazi regime that lost all legitimacy after Roe v. Wade.
Even moderates in the pro-life movement regard Joan Andrews as a martyr, but by her own words she has virtually accused herself of treason—and not for the first time: before discovering abortion, Andrews was already a career civil disobedient, who began by protesting the Vietnam War. Life is not the only issue for which such people are willing to break the law. Nuclear reactors, war, the government’s immigration policies, the ratio of minorities in a school system—all have attracted the support of Christian activists, many of whom are now marching with Operation Rescue.
Most sensible people in the pro-life movement have warned that the Gospel does not teach anything like this reckless disregard for law and order. Charles Colson, while expressing sympathy for Joan Andrews, points out that “Generally speaking it is not justified to break a just law in order to protest an unjust law.” Even more to the point is the strong statement made by John Whitehead and Franky Schaeffer (in Arresting Abortion), that “We are commanded to be good citizens until such time as we are ordered by the law and government to do those things contrary to the law of God.”
If the US were governed by a Nazi regime, there would be no question of permitting abortions. A Nazi state would be commanding some parents to murder their “inferior” children, while punishing with death any “superior” parents who tried the same thing. Such violations of natural law do not just permit opposition; they require resistance and rebellion. In America, the state is not compelling women to kill their babies. It is simply looking the other way. If parents really want to commit infanticide, in most cases they can get away with it—whatever the law says. The fact that a large number are willing to do it—that is the real horror, and not the fact that the federal government allows it.
We cannot afford to do nothing, but concern for the nation’s moral health does not free us from the obligation to obey the law, and I would urge the demonstrators to spend their time reading St. Paul’s Epistle to the Romans or Luther’s savage denunciation of the rebellious peasants and his repeated injunctions against disobedience. If we are free to violate property laws, why stop there? Suppose we did manage to secure a national law against abortion. Why shouldn’t conscientious feminists defy the law?
Respect for law is not restricted to Lutherans and Baptists. The Calvinist Rousas J. Rushdoony, so frequently accused of “theocracy,” knows better. In the January issue of his Chalcedon Report, Rushdoony denounces illegal tactics as “non-Christian and revolutionary” and observes: “To use ungodly means is a way of saying that God’s grace and power are insufficient resources for Christian action. It means abandoning Christ for the methods of His enemies. . . . When the leaders of the people wanted to force Pilate’s unwilling hand, they assembled a mob to demonstrate before Pilate and to shut down all protest, screaming, ‘Crucify him.'” Indeed. Using the tactics of rights and demonstration is like using a devil to cast out devils. Accused of just such an act of sorcery, Jesus observed that a house divided against itself cannot stand. The American house is already wracked by every sort of dissension. A militant right-to-life movement could be the last straw.
I do not wish to be too harsh against well-meaning Christians who are understandably eager to wrap themselves in the popular mantle of civil rights. If they are impatient with the slow progress of the courts and with Congress’s refusal to act, they ought to concentrate on state and local politics, where the real battles will ultimately be fought. If they wish to resist the current law, they cannot do it legitimately either as private citizens or as members of conspiratorial little groups. They need to galvanize their towns and cities into action against the abortion clinics. It is a tactic that has been employed successfully in campaigns against smut. Of course the federal courts will decide in favor of the clinics, but then it will be up to communities and states to stand upon their lawful rights.
In the early days of our republic, when the Federalist Party was pushing the central government’s authority at the expense of the states, Kentucky and Virginia passed a set of resolutions that clearly stated the rights of states to resist such interference. In 1828 John C. Calhoun refined upon this argument by declaring that the final arbiters in any constitutional question were the original parties to the Constitution, the states, who had the right to interpose a veto upon unjust or illegal legislation. As Clyde Wilson writes, “This program Calhoun defended not as a step toward disunion but as an alternative to it.”
Today, such a strategy needs to be revived by states that have seen their laws overturned, school systems restructured, and institutions corrupted by the federal courts. Something like nullification has been resorted to already by a number of governors who have banned the shipment of toxic waste into (or even through) their states.
When states, through their democratically elected legislatures, have drawn up laws regulating, restricting, or forbidding abortions, then these same states, acting as lawful communities, can legitimately insist upon their constitutional rights without in any way undermining respect for law and without arrogating still more power to the government. If the courts will not change their ways, then the only other choices are tyranny or disunion. And that will mean, truly, a crisis in the house divided.