NORMAN FINKELSTEIN ON ABORTION, ROE, AND THE ALITO OPINION

Note:  In this excerpt from my forthcoming book, I’ll Burn That Bridge When I Get to It!, I address whether it’s legitimate to suppress speech on the grounds that the said speech is socially “regressive.”  I answer in the negative, and illustrate the point by considering the abortion debate. 

P.C., cancel culture—they pretend to be the avant-garde of progressive ideas.  Whoever opposes them is retrograde, a benighted fool. “I have seen the future, and it works,” muckraking Progressive-era journalist Lincoln Steffens announced in 1919 after returning from Bolshevik Russia.

Positioning oneself on the right side of history before History has rendered its verdict, it’s a tricky business.[1] If Bolshevism was the progressive cause du jour internationally in the first half of the 20^th century, eugenics was all the rage domestically in progressive circles.  A veritable Who’s Who of progressive thinkers—Theodore Roosevelt, Margaret Sanger, and Helen Keller in the US; Bertrand Russell, Bernard Shaw, and H. G. Wells in the UK—embraced the eugenical improvement of the human race via scientific breeding.  States in the Union that had “enlightened” governments such as Wisconsin passed mandatory sterilization laws to weed out “defectives” (those born with congenital handicaps and illnesses) and the “feebleminded” (those possessed of low morals and I.Q.s, which were said to go hand-in-hand).  Such legislation met resistance, however, in the “backward,” God-fearing Protestant Bible-Belt states of the Deep South, as they embraced the sanctity of our common humanity (salvation was within reach of all God’s children).[2] Eventually, however, the Deep South, too, fell into line as these states succumbed before the juggernaut of “progress.” The legality of state-enforced sterilization came before the US Supreme Court in Buck v. Bell (1927).  The defendant, Carrie Buck, along with her mother and daughter, was alleged to be feeble-minded. (There appears to have been no evidentiary basis for this contention.)  Revered Justice Oliver Wendell Holmes upheld not just the legality but also the desirability of sterilization.  “It is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.… Three generations of imbeciles are enough.”  The most progressive member of the Court, Judge Brandeis, voted with the eight-person majority.  The sole dissenter, Judge Butler, was a devout Catholic.  (The Catholic Church was the first institutional bastion in the US to oppose eugenic sterilization, not just on account of its opposition to birth control, but also because of its theological commitment to the sanctity of all human life regardless of eugenic “fitness.”)  It was not until the Nazis carried this progressive idea to its logical conclusion that it fell into disfavor.[3]  The verdict of History is crystal clear: those beholden to science—the “progressives”—were wrong, those in thrall to religion—the “regressives”—were right.  The right to sterilize was about government interference in the reproductive process; the right to abort is about barring government interference in it.  But at bottom the moral stake is arguably the same: the sanctity of human life.  The devout opposed sterilization then and oppose abortion now, whereas progressives supported sterilization then and support abortion now. Feminist one-trick pony Katha Pollitt deems a woman’s right to abortion the litmus test of feminism: to support abortion is to support the march of progress.[4] But is it that simple?  The long arc of civilization would seem to bend toward an ever more inclusive notion of human life.  In his utopian blueprint, Plato posited that “defective offspring will be quietly and secretly disposed of”—in effect, he sanctioned selective infanticide of, among others, “defective” and “illegitimate” children.  It is not impossible to imagine that, as appreciation of human life broadens out over time, History’s verdict on abortion will be as harsh as ours of Plato’s counsel.  The landmark US Supreme Court decision upholding a woman’s (qualified) right to abortion, Roe v. Wade (1973), pretended to avoid the enigma of when life begins: “We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.”  But the Court was being disingenuous.  First, except by artifice, it seems impossible to decide the legality of abortion without engaging this irreducible question. Second, even if only by indirection, the Court did stake out a position on when life begins. The problem, alas, was that its position was wholly unpersuasive and wholly political. The Court dismissed the “pro-life” position that life begins at conception as “rigid” but didn’t explain why it was rigid.[5]  If life did in fact begin at conception—the Court claimed to be agnostic—what’s “rigid” about principled adherence to this belief by opposing abortion?  The Court tacitly dismissed, on the opposite end of the spectrum, the rigidity of the “pro-choice” position that life begins at birth by declaring that it was within the State’s writ to also decide when “potential life” begins and to protect it.[6]  But wasn’t that just displacing the decisive question, so to speak, one step back?  If the Court didn’t know when life began, how, pray tell, could it know when “potential” life began? “Potential” is an adjectival refinement of “life.”  If the inception of life is a black box, then the modifier can’t shed any light.  In other words, the Court’s conceptual innovation of “potential life” doesn’t affect let alone undercut the pristine pro-choice position that life begins at birth.  What’s more, if the Court extended its writ backwards to “potential life,” then didn’t it logically wind up in the pro-life camp as conception is, if nothing else, “potential life”?[7]  Along the way, the Court suggested that stringent legal restrictions on abortion only emerged relatively late in American history,[8] and therefore its recognition of a “fundamental” right to abortion didn’t mark a rupture with our history and tradition.  But even were that true and of judicial interest,[9] to the layperson the argument rings as persuasive as saying legal restrictions on slavery only emerged relatively late in American history, and therefore the right to enslave may as well be fundamental.  In fact, just as slavery’s abolition registered a heightened sensitivity to human life, so may have abortion’s abolition, as the Court appeared to concede.[10] The Court resolved to split the difference by supporting a right to abortion prior to the “‘compelling’ point” of the fetus’s viability outside the womb.  However much the Court denied it, viability was also the point at which it determined life began.[11]  It made sense politically as the Court reached for the broad center in public opinion.  But its own determination was as capricious (or rational) as the others.[12]  It grounded the right to abortion during the first stage of pregnancy in the Fourteenth Amendment right to liberty,[13] and it grounded the State’s right to intervene during the later stage of pregnancy in its obligation to protect prenatal life.  The Court presents this resolution of the abortion enigma as a compromise between the extreme pro-choice and pro-life positions.[14] But it’s only a balanced decision if life begins at viability.  If, however, life begins at conception, then, by the Court’s own reasoning, a woman’s right to liberty would in general be trumped by the fetus’s right to life, while if life begins at birth, then State intervention prior to birth would in general violate the woman’s right to liberty.[15]  Truth be told, the whole of the Court’s jurisprudence is absurd as it is premised on the belief that an insoluble moral enigma—when does life begin?—can be resolved by a clever turn of phrase or, less charitably, verbal subterfuge. The intractable fact is that, for all anyone knows, the so-called rigid pro-life position might be vindicated by History.  Indeed, if the jury is still out, and it’s human life that’s at stake, then isn’t the categorical imperative to err on the side of caution: if it might be life, then act as if it is life?  My late Mother once whispered to me in sheer horror the story of a woman next to her on the transport to Majdanek concentration camp: the future holding what it did, she suffocated her baby to death.  Still, my Mother was emphatic that a woman had a right to abortion and a man shouldn’t have any say. (I inferred, but can’t say for sure, that she had an abortion in the Warsaw ghetto.  Her Father, who was ultra-orthodox, refused to let her descend into the ghetto bunker accompanied by her boyfriend unless the marital rite was performed.  She once confided to a female friend of mine in my presence that she lost her virginity to him.  He was eventually killed.)  Be it trapped in a death-stalking ghetto or on a transport to a concentration camp, a woman may be forced by ghastly circumstance to do what her whole being revolts against doing.  But my Mother also took for granted that, for any woman choosing to abort, it was a decision of ultimate resort, in extremis extremis.  Shouldn’t it always be supposed that the fetus might be a life?  It does pose a danger, acting as if this possibility doesn’t exist, that an abortion carries as much moral gravitas as washing off dead epidermal cells while showering.  In one abortion decision by the Court after Roe, Justice Stevens averred that “No person undertakes such a decision lightly.”[16]  Even were that true, it remains the case that if “there’s nothing less calculated to strengthen the marriage tie than the prospect of early divorce” (Thomas More in Utopia), then there’s nothing less calculated to preserve the sanctity of life than the prospect of easy abortion—in particular, the moral neutering of it. There’s every good reason to attach a severe social stigma to abortion even as a woman’s right to it must be upheld and there’s no rational point in the pregnancy when it might be legally barred.  In effect, such a stigma would mimic the overriding commandment that thou shall not kill, which allows, however, for a right to self-defense.  To set up a woman’s right to an abortion as the litmus test of progress without simultaneously acknowledging it’s a fraught decision betrays moral callousness as it verges on trivializing life.[17]

The moral of this long excursus is that it’s presumptuous to repress speech in the name of enlightened thought: just as causes once deemed progressive such as eugenics were later deplored as reactionary, so causes currently deemed progressive such as abortion rights might one day also be deplored as reactionary.  What’s more, just as the devout back then proved to be on the right side and the secular on the wrong side of History, so today’s social conservatives might in due course prove to be on the right side and “woke” liberals on the wrong side.  When it comes to curbing speech, experience thus confirms the general rule in human affairs: humility is to be preferred over arrogance.

Addendum: Comment on the Alito Opinion

The recently leaked opinion of Justice Alito is correct in its criticism of Roe, but its tacit moral, as against legal, conclusion is no more persuasive than the 1973 landmark opinion.  Alito is convincing that there isn’t a “fundamental right” to abortion grounded in our “Nation’s history and tradition” (the standard used to determine a fundamental right).  Alito is also clearly correct that abortion does not fall in line with relevant prior cases that upheld a right to privacy.  He is also clearly correct that “viability” is an arbitrary “compelling point” at which to prohibit abortion.  Viability is a medical-technical standard: it’s the point at which a fetal life can be sustained outside the womb.  It doesn’t speak at all to the question of when the fetus becomes a life.  If the Roe court determined that the State has a compelling interest when “prenatal life” begins; and if it determined that the State’s compelling interest begins at viability; then, the Court effectively determined that life begins at viability.  But it never demonstrates this.  If life begins before viability—who’s to know?—then, pace Roe, the State would, by its own standard (protecting “prenatal life”), have an obligation to prohibit abortion before viability.  So, on all this, Alito’s correct, the Roe opinion incorrect.  However, the Alito opinion is ultimately as arbitrary as Roe.  Both Roe and Alito assert that they don’t take a position on when life begins.  But Roe clearly did stake out a position: at viability.  As it happens, Alito also takes a position: at the onset of the second trimester.  Alito’s opinion begins by quoting the Mississippi statute before the Court, which describes significant fetal development in the first trimester.  Alito then quotes from the statute the “barbaric” abortion procedure (dilation and evacuation) usually used after 15 weeks.  But why is this procedure barbaric?  Presumably because the fetus at that stage of development is a life.  If this procedure were used to remove a cancerous tumor, it wouldn’t be deemed barbaric.  Thus, Alito has decided that prenatal life begins and the right to abortion ends at 15 weeks.  It is on this ground that he deems the Mississippi statute “rational.”  If life actually begins at conception—again, who’s to know?—then the Mississippi statute would be as irrational as the Roe viability threshold.

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[1] After a trip to China, where he met Mao Tse-tung, W. E. B. Du Bois wrote “The truth is there and I saw it.” That’s a bit more complicated.  The truth he imagined seeing was China as the cutting edge of World Communism, which turned out to be a fiction.  But it’s also true that the China he saw did emerge as the cutting edge of World Capitalism, which will likely dominate the world’s stage for a long time to come.  So even as he misread the future, he did get something fundamentally right.  (The Autobiography of W. E. B. Du Bois: A soliloquy of viewing my life from the last decade of its first century)

[2] A leading historian of eugenics in the Deep South writes:

The concept of salvation and sanctification for all, solely by divine grace, challenged eugenics doctrines of fixed, inherited degeneracy and superiority…. Even though the concept of religious brotherhood did not overcome doctrines of White supremacy, it offered a sense of extended kinship that stood at odds with eugenic proposals to segregate or sterilize defective individuals; in the words of the beloved hymn, ‘His blood can make the foulest clean’” (Edward J. Larson, Sex, Race, and Science).

The force of opposition to eugenics in the South also sprang from a wariness of government intrusion in human reproduction, on the one hand, and the deficit of scientific “experts” lobbying in favor of eugenics legislation, on the other.

[3] Between 1907 and 1960, more than 60,000 Americans were forcibly sterilized.

[4] Katha Pollitt, “Nora Ephron,” Nation (28 June 2012).

[5] Likewise, the Court peremptorily dismissed the Hippocratic Oath’s injunction against abortion as rooted in “dogma” and characterized by “rigidity.”

[6] “Logically, of course, a legitimate state interest in this area need not stand or fall on acceptance of the belief that life begins at conception or at some other point prior to live birth.  In assessing the State’s interest, recognition may be given to the less rigid claim that as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone.”

[7] In a subsequent holding on abortion, Planned Parenthood v. Casey (1992), the Court did locate “potential life,” and therefore a legitimate State interest, at conception, but that left its jurisprudence on abortion in large part a shambles.

[8] “It is thus apparent that at common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect. Phrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today. At least with respect to the early stage of pregnancy, and very possibly without such a limitation, the opportunity to make this choice was present in this country well into the 19th century. Even later, the law continued for some time to treat less punitively an abortion procured in early pregnancy.”

[9] In Supreme Court jurisprudence, a “fundamental” right has been construed as one deeply rooted “in the traditions and conscience of our people.”

[10] See the historical section of Roe on the American Medical Association.

[11] If, as the Court asserted, there’s a “compelling State interest” in “protecting prenatal life” (my emphasis), and if the Court determined that the “compelling point” at which the State must intercede in order to protect prenatal life was viability outside the womb, then it effectively established viability as the point at which life began. Otherwise, why wouldn’t the State intercede prior to viability?  Indeed, Justice Blackmun, who wrote the Roe opinion, justified the viability cut-off in Casey on the grounds that it demarcated the onset of human life: “The viability line reflects the biological facts and truths of fetal development; it marks that threshold moment prior to which a fetus cannot survive separate from the woman and cannot reasonably and objectively be regarded as a subject of rights or interests distinct from, or paramount to, those of the pregnant woman.” If, however, the fetus were a human life prior to viability, it clearly could claim “rights or interests distinct from … those of the pregnant woman.”

[12] In private conference, the Court tacitly acknowledged that it arbitrarily determined the various temporal delineations in Roe. David J. Garrow, Liberty and Sexuality: The right to privacy and the making of Roe v. Wade (New York: 1994), pp. 580-86. 597-98, 696; Joshua Prager, The Family Roe: An American story (New York: 2021), pp. 99-100.  Although it conceded the “want of a line that is clear,” Casey upheld the Roe criterion on the grounds that “there is no line other than viability which is more workable.”  But except on the unproven and unprovable assumption that neither marks off the beginning of life, why isn’t conception or live birth as “workable,” indeed, more “workable”?  (The “viability” line is ever-receding as medical technology improves.) It would have been more coherent and true to the facts if the Court had frankly admitted: “more politically workable.”

[13] In particular, the derivative right to privacy.  (The Court subsequently pointed as well to a Constitutional right to personal autonomy or bodily integrity.)   If the Court grounded the right to abortion in the right to privacy, that’s because it presumed the fetus was not a life; otherwise, tracing back the right to abortion to a privacy right lacks coherence.  The line of Court cases establishing a privacy right included a married and unmarried couple’s right to use contraceptives (Griswold, Eisenstadt), an interracial couple’s right to marry (Loving), and an individual’s right to view pornography (Stanley).  If the fetus were a life, the fundamental question posed by abortion—viz., the constitutionality of its termination—falls wholly outside the line of these cases.

[14] “The Court’s decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate….  [A] State may properly assert important interests … in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute.”

[15] In the idiom of Supreme Court jurisprudence, if life begins at conception, even if the right to abortion is “fundamental” as it is grounded in a Constitutional right to liberty, still, a categorical ban on abortion would pass legal muster under a “strict scrutiny” analysis as the State’s obligation to safeguard life would almost certainly prevail over a woman’s right to liberty.  Conversely, if life begins at birth and abortion is a “fundamental” right, then no ban of whatever duration would pass legal muster under a “strict scrutiny” analysis as abortion would amount to a woman’s uncontroversial liberty to dispose of an inanimate object lodged in her womb. I set aside the complicating factors of severe risk to a woman’s health, rape, etc.  (Strict scrutiny is the most stringent level of Supreme Court analysis that determines whether a compelling State interest supersedes a fundamental personal right.)

[16] Casey.

[17] One prominent early proponent of abortion rights reckoned that even as “in some cases” it was manifestly the “proper choice,” still, “abortion is an evil,” while another opposed unregulated “abortion on demand” as “it develops in both the medical profession and the laity a lack of reverence for life.”  Garrow, Liberty and Sexuality, pp. 273, 305.