The Personhood of the Unborn

The "March for Life" was held in Washington, D.C. today.  While I was unable to attend personally, my thoughts and prayers were with everyone -- including many friends and colleagues -- who did have an opportunity to participate.

The continued protection of the "fundamental" right to abortion is an affront to basic moral principles, at least in my estimation.  I know that many people share this view, while just as many disagree.  In the past forty years, however, great strides have been made, and victories won, for the cause of innocent life and its protection.  

Certainly, Roe v. Wade was a travesty.  And for many reasons.  Even liberal scholars and commentators admit that it was sloppily drafted and rests on poor interpretative foundations.  Daniel Williams suggested yesterday, contra the received historical interpretation, that it may even have halted the pro-life movement dead in its tracks so many years ago.

Of course, in some ways, our abortion jurisprudence, while still less than perfect, has come a long way from Roe, and in the right direction, despite what many pro-lifers may think.  Compared to where we were forty years ago, the pro-life movement has gained a lot of traction in reasserting the rights of states in limiting the practice of abortion.  As the Guttmacher Institute -- a pro-abortion non-profit -- reports: 

"Although a core of states in the Northeast and on the West Coast remained consistently supportive of abortion rights between 2000 and 2011, a substantial number of other states shifted from having only a moderate number of abortion restrictions to becoming overtly hostile."

Perhaps, one might say, we should take their reports with a grain of salt.  Nevertheless, I think it remains true that, at least so far, we've been winning.  I don't mean, of course, to imply that the "war" is won; it certainly isn't.  Indeed, the fiercest battles lay ahead.  At present, the largest threat to the protection of life is the current administration.  While I am unaware of any major efforts to liberalize abortion procedures among the many States, the increasing federalization of medical law, and the implementation of President Obama's healthcare reform should alarm pro-lifers.  The coming legal battle over contraception and the protection of conscience rights under the First Amendment, while seemingly trivial to some, could have tremendous implications for more controversial issues such as abortion.

There is one aspect of the abortion debate, and the state of the law, though, which I find deeply troublesome.  Despite the foregoing optimism that I've shared concerning how far we've come, I don't want to overstate the case.  I've already mentioned that healthcare reform and the erosion of First Amendment rights pose a serious threat to the protection of the unborn.  On a deeper level, however, there is a serious moral dilemma which remains unresolved and will prevent any serious victory in the battle to protect innocent life, viz., the failure of the Court to recognize the personhood of the unborn.

A number of months ago, I wrote an article for "The Bell Towers" on this very issue ("Casey, Originalism, and the Personhood of the Unborn").  I encourage everyone to take a gander at what I had to say.  The article is, by no means, comprehensive, but I think it makes some important criticisms of what Justice O'Connor did (or rather, failed to do) when writing the Court's opinion in Casey.

Earlier today, the Witherspoon Institute published a compelling piece by Gerard Bradley, who discusses this same issue, though in greater detail.  I highly recommend taking some time to sit down and consider what Professor Bradley has written.  He makes some especially fine points in his last paragraph:

"...Abortion is not only the great civil rights issue of our time.  It is the greatest human rights tragedy in America's history.  There are now 55 million people dead by lawful abortion since Roe.  That is a hundred times the number of Americans killed in combat during World War II.  That is many millions more than all the persons enslaved in the course of American history.  In abortion, a person is killed outright.  But law is for persons, not the other way around.  Persons are the point of law; law is their servant."

Let us pray that the day is near when the law finally recognizes the personhood of every man, no matter whether he has yet to be born or is reaching the end of his life.  Until then, we may continue to increasingly restrict the practice of abortion, but we'll never be able to reclassify it for what it is -- the murder of an innocent human being.