In the pre-Islamic period, the practice of female infanticide was widespread in much of Arabia, but it was immediately forbidden through Islamic injunctions. Several verses of the Quran were revealed that prohibited this practice to protect the rights of the unborn and of the newborn child: “When the female infant, buried alive, is questioned for what crime was she killed; when the scrolls are laid open; when the World on High is unveiled; when the Blazing Fire is kindled to fierce heat; and when the Garden is brought near; Then shall each soul know what it has put forward. So verily I call” (81: 8-15). Indeed, there are many verses in the Quran that remind us of the sanctity of life. We are told that “Wealth and children are an adornment of this life” (18:46), and we are commanded to “Kill not your children for fear of want: We shall provide sustenance for them as well as for you. Verily the killing of them is a great sin” (17:31).

While the religious injunctions reverberate through faith on a spiritual level, the blessings of life touch us daily on a worldly level, as well. As the mother of three beautiful children, I can truly attest to and appreciate the gift of life. But I also understand how heartbreaking it is to lose it.

I want to share with you the story of how I came to realize life’s fragility and the importance of making the most of our spiritual journeys here on earth. Over thirteen years ago, my husband and I were eager to start our family. We were ecstatic when, a few months shy of our first anniversary, we found out that we were expecting. Very early on, we began playing the “new parent” planning game, picking out names and nursery colors even before our first doctor’s appointment.

A few months into the pregnancy, the doctor scheduled a routine ultrasound. Giddy with excitement, we entered the darkened room and waited in great anticipation to see our child. There on the screen—fuzzy, yet discernible—we could see our baby’s outline. We imagined the features and jokingly guessed who the baby might look like. But the ultrasound technician did not laugh with us. As she solemnly stared at the screen, we followed her gaze. As inexperienced as we were, we could tell that something was not right: our baby had no heartbeat.

After losing my first child, I truly began to understand the meaning of life. When the heartbeat we’d heard so clearly on the Doppler suddenly ceased, our baby’s life ended in the womb, before he or she even had a chance to begin in the outside world.

But strong faith and an unshakeable belief in a just God is a great formula for filling any emotional void. As the Quran states in Verse 156 of Surat Al-Baqara, there are great blessings for those “who, when a misfortune overtakes them, say: ‘Surely we belong to God and to Him shall we return.’” Losing our first baby led to a deeper appreciation of God’s magnificence and the miracle of His creation.

Several months later, we found out we were expecting again. This time, the excitement was tempered with worry. Our first ultrasound came much earlier in the pregnancy, and we eagerly scanned the screen for the telltale beating before glancing at fingers and toes or eyes and nose. And there it was, strong and steady! We breathed a sigh of relief. Our baby was alive.

As the months of this second pregnancy progressed and the baby bump grew larger, we began to hope. Each ultrasound revealed a little more of our child and each kick confirmed that this time we were really going to begin our family. As the due date quickly approached, we felt more confident in choosing baby items and room colors. We even chose the name for our baby girl. Her name would be Jennah, which means Heaven in Arabic.

With just a few weeks left before my scheduled delivery date, I went into labor. As we sped to the hospital and I was wheeled into the darkened ultrasound room, out of habit, my eyes went directly to the heart area on the screen that I knew all too well by now. That tiny heart, which I had sought out so many times in the previous ultrasounds, had stopped beating.

That day, so many years ago, I delivered Jennah, my stillborn daughter; and that day we buried Jennah. We hadn’t known how fitting her name would really be. As the infection that had ended the pregnancy sped through my blood in the days that followed, I recognized just how delicate life really is. Nothing can bring life into perspective as much as loss. And nothing can affirm faith as much as life.

Today, as I look at my three beautiful children, I know that God is good. No, God is great, or in Arabic, Allahu Akbar. And what gives me the greatest solace in times of trial is the verse in the Quran that states: “It may be that you detest something which is good for you; while perhaps you love something even though it is bad for you. God knows, while you do not know” (2:216).

As Muslims, we believe in the power of life to change others, and we believe even more in the power of God. In any disaster, in any calamity, and in the face of any death, we are urged to repeat “inna lilah wa inna ilayhee raji’un”—“To God we belong and to Him we return.” In the end, only He knows what is best for us.

I could share with you so many stories from the Hebrew Bible, the New Testament, and the Quran that illustrate the power of God in our lives: the creation of Adam, the patience of Job, the perseverance of Noah, the purity of Joseph, the judiciousness of Solomon, the trials of Jonah, the obedience of Abraham, the wisdom of Moses, the devotion of Jesus, and the inspiration of Mohamed. I could share these stories with you, but they are available to all in the Holy Scriptures.

Instead, I want to share with you the story of an amazing woman whom I met recently at a conference. This woman truly exemplifies the spirit of respecting life. Melinda Weekes had recently returned from a trip to the Sudan, where she was helping to enact a policy of slave redemption. For years and years, a rampant genocide was perpetrated in southern Sudan by the wealthy slave traders of the north. They would pillage and torch the mud huts of the villagers, and then capture the women and children to sell them into slavery.

Heartbroken by what was happening in Sudan, this woman traveled across the world to help free these slaves by buying them back from the traders and returning them to their villages. Upon their return, she helped them rebuild their lives by establishing schools and educating their girls so that they could break free from oppression. Describing the strength of these women in the face of modern-day slavery, Melinda shared story after story of the things she had seen on her trips to Sudan. She spoke of one of the most powerful experiences she had had, when she sat with a woman who had lost her home, her husband, and her children, and had suffered incredible harm at the hands of her slave master. She asked the woman, “How do you survive? How do you manage to continue living?” The woman responded, “When the world pushed me down to my knees, I knew that it was time to pray. I am blessed to still have these old knees that allow me to kneel, blessed to be able to prostrate, blessed to be able to pray. And I am blessed because I have God.”

I ask you today to reflect on women like these, to reflect on their inner strength, and to reflect on your own life as you know it. I ask you to accept life as a gift and to understand that your life belongs to a greater power, to a higher authority that breathed life into your soul at your beginning and decreed that you should live it with good morals, good ethics, and a good heart that can truly make a difference in the lives of those around you.

In the memorable words of Mother Theresa:

Life is an opportunity, benefit from it.
Life is beauty, admire it.
Life is a dream, realize it.
Life is a challenge, meet it.
Life is a duty, complete it.
Life is a game, play it.
Life is a promise, fulfill it.
Life is sorrow, overcome it.
Life is a song, sing it.
Life is a struggle, accept it.
Life is a tragedy, confront it.
Life is an adventure, dare it.
Life is luck, make it.
Life is too precious, do not destroy it.
Life is life, fight for it.

I’d like to end with a prayer, a Muslim ayah (verse 286 from Suratul Baqara) from the Quran:

On no soul doth God place a burden greater than it can bear. It gets every good that it earns, and it suffers every ill that it earns. (Pray:) Our Lord! Condemn us not if we forget or fall into error; Our Lord! Lay not on us a burden like that which Thou didst lay on those before us; Our Lord! Lay not on us a burden greater than we have strength to bear. Blot out our sins, and grant us forgiveness. Have mercy on us. Thou art our Protector; help us against those who stand against faith.

I ask you today once again to respect life, for there is no greater gift. Respect life, yours and the lives around you. For when we lose respect for life, we lose respect for humanity, and when we lose respect for humanity, we lose respect for God’s creation, and when we lose that, we have lost everything.

Suzy Ismail is a Visiting Professor at DeVry University in North Brunswick, New Jersey and is the author of When Muslim Marriage Fails: Divorce Chronicles and Commentaries. This article is adapted from remarks made in the Princeton University Chapel for Respect Life Sunday.

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Though they are not alone, the most obvious culprits are some of my fellow Roman Catholics. It is pretty serious when a Catholic says, “I am personally opposed to same-sex unions; nonetheless, I will not only support such unions, but I will sponsor the bill to make it happen.” Most people would automatically, and reasonably, come to the conclusion that such a person is not being honest: he is neither personally opposed, nor following the faith he professes. For this person, “personally opposed” must have a very peculiar meaning, unshared by most of the population.

Such an accusation rankles the fervent “personally opposed” devotee, because he sincerely believes that his is the proper course of action. His argument about marriage, for example, tends to look something like this: Civil marriage is completely different from religious marriage. If a religion thinks it is proper to keep marriage between one man and one woman, that is no concern of civil authorities. Similarly, religion has no authority to say what civil marriage is. Since it is a purely civil affair, it must be ruled by purely civil laws, especially the Constitution’s Equal Protection clause. The push for same-sex unions and polygamy, then, is just a case of providing equal rights.

Let us leave aside the question of whether these statements accurately reflect the faith tradition in which our “personally opposed” friend claims membership. (Catholic teaching, for example, holds quite the opposite: that as a natural institution, marriage is the union of one man and one woman.) If you are truly opposed, yet you truly believe that the Constitution will not permit your position to be enshrined in law, then your task is to change the law—including, if necessary, the Constitution—to reflect what you believe to be the truth for human beings and the best for society. At the very least, your duty is to not exacerbate the situation.

Yet our “personally opposed” congregant operates according to a strange moral arithmetic in which his professed moral stance is canceled out by current law, to the point that he is not even permitted to try to change the law. These people are then left to follow a lesser law as though it is an absolute. It is as though they feel the need to do something, and since their own vision of the good has been stymied, they start working to forward someone else’s vision of the good.

What could so definitively stop their acting on their own asserted beliefs, according to their own conscience, that they are compelled to act according to someone else’s conscience? For, if we take them at their word, that is what they are doing. The claim seems to be that no one who believes something to be right or wrong based on a faith-claim or based on someone else’s authority may act and vote according to his or her own conscience. One person put it to me this way: “Please spare me the lecture about natural law. We live in a multi-faith democracy and not a theocracy. Catholics do not, under our system of government, get to dictate what kind of marriage non-Catholics can have.”

This is a strange argument, for several reasons.

First and most obvious, this argument is utterly at odds with the long-standing tradition in this nation of opposition to the status quo (e.g., to slavery, to Jim Crow laws, to war, to the death penalty, to immigration or economic policy), grounded precisely on religious moral principles.

Second, faith is not opposed to reason. Many people are nervous about any claim rooted in faith, because they take faith to be something opposed to reason. It is not. Faith is an act of trust in the sobriety and authority of the person who bears witness to certain news. This puts our “personally opposed, but …” acolytes in an uncomfortable position, for there is no one who does not believe in many things based on the authority and testimony of others. We cannot possibly go about rediscovering every claim in science, history, and philosophy. We all accept many things on testimony and authority, without direct and independent evidence. We cannot thereby rule out such testimony and authority when it comes to making public policy.

Third, the natural law is not, in itself, a matter of faith. It has been with us in one form or another since before Plato and Aristotle. It is the basis for the entire Anglo-American legal system (although many practitioners within that system have been influenced by legal positivism). Admittedly, many faith traditions accept some version of natural law. Admittedly, many of the faithful accept the natural law based on the authority of others. But that does not mean that the natural law is itself an article of faith, since many accept it without any reference to faith.

Fourth, the argument abuses the notion of theocracy. The Founding Fathers took certain truths to be not faith-based but self-evident, available to any reasoning person—including the claim that we are endowed with inalienable rights by our Creator. They also believed, by and large, that a religious citizenry is the only possible grounding for a working self-government. If this is theocracy, then the United States has been a theocracy since its inception, and working toward a solution according to faith-based principles of right and wrong is not only clearly constitutional, but also expected of every caring citizen. If, on the other hand, the Founding Fathers did not found a theocracy, then the Constitution clearly affords us the wherewithal to accommodate both religious freedom and a robust application of our moral beliefs to the law.

Furthermore, in our system, members of any faith could tell everyone what marriage is—if they have the votes. What they certainly would not do is tell others what to believe or how to worship.Freedom of conscience and of worship is a fundamental human right that is part of the truth about the human person and preexists the law, and the law must recognize and defend that freedom in order to have any claim to legitimacy. However, when it comes not to thoughts and beliefs but to human actions with public consequences, law must have something to say, and therefore the people who are ruled by the law must have something to say, as well, no matter what their faith tradition or lack thereof. In that regard, a majority of Americans, when given the opportunity to vote, demonstrates a belief that there is a truth about the human person and human marriage that preexists human law and that human law must respect, if it is to be fully justified.

There are other possible interpretations of “personally opposed” that some might think could justify the “but.” We might remember that the Massachusetts Supreme Judicial Court, in its Goodridge decision (2003) accepting same-sex “marriage,” denied its own long-established precedent, quoting the United States Supreme Court’s Casey decision (1992) in support of its conclusion that morality could no longer be considered a rational ground for law. In that ruling, we find this passage: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”

At first glance, this passage is merely a defense of freedom of thought, but given its context as a defense of the abortion regime, it is so much more. Taken to its logical conclusion, it affirms that, to be a person, one has to be able to decide for oneself what is important and then act on it. Just having the right to decide for myself who counts as a person is not enough; I must be able then to kill those I find do not measure up, lest I have no liberty, and thus no personhood. In the marriage context, it apparently means that, whatever I believe or want marriage to be, it can be that, and the law is powerless against my desires.

This is a passage that goes beyond utilitarianism. John Stuart Mill and his followers held that human beings are only fulfilled in the pursuit of pleasure and the avoidance of pain, and that the way to maximize pleasure is to allow as much liberty as practical so that people may pursue these ends. But even Mill thought that one’s right to swing one’s own arm ended at someone else’s nose. There are no such brakes on one’s actions in the “heart of liberty” passage. Taken literally, the passage demands that the law never forbid an action if there is any disagreement about its justification. Since there will always be someone who disagrees, there really can never be laws about anything. In such a world, the powerless are at the mercy of the powerful.

Those in favor of such an expansive version of liberty, and thus an expansive version of marriage and sexuality, seem to recognize this fact and use it to their advantage over those who think that civil law and ordered liberty are grounded in some truth about human beings and moral law. This latter group continues to believe that there are such things as human rights that preexist the civil law, including rights to freedom of conscience and worship. Thus, they tend to respect these rights in those with whom they disagree—that is, they tend to a certain level of tolerance.

The former group, while ostensibly extolling tolerance, cannot tolerate that which threatens their own practices of liberty, including points of view that oppose their own. Such thoughts become the crime of hate speech. Many across the globe, and an increasing number in this country, are facing the wrath of these lovers of pure liberty (for themselves).

Under such a regime, only the conscience of one side can be tolerated. All opposing consciences must be silenced. Today, the intolerant have not simply silenced a surprising number of opposing consciences; they have convinced those silenced people to join with them, and rejoice at the opportunity. As we have shown, such people are either dishonest about their opposition or mightily confused. But make no mistake: when the apostles of the “heart of liberty” come to full power, the “but” is not going to save you if you are “personally opposed.”

Stephen J. Heaney is Associate Professor of Philosophy at the University of Saint Thomas in Saint Paul, MN.

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In her new book, American Individualism: How a New Generation of Conservatives Can Save the Republican Party, Margaret Hoover renews this argument. (The book’s title and inspiration derive from a booklet of the same name by Hoover’s great-grandfather, Herbert Hoover.) Here she argues that the Republican brand is damaged because social conservatives appear to dominate the party, which “has caused millennials to tune us out.” Hence Hoover writes with two aims: to convince Republicans that millennials—roughly anyone born between 1980 and 1999—are not a “lost cause,” and to convince millennials that they should give Republicans another hearing. But to appeal to this audience’s alleged hostility to the third leg of the stool, Hoover feels compelled to pull out her pocketknife and sharpen it.

According to Hoover, the three-legged stool’s fusionism emerged as a response to a common enemy: Communism. In a post-Communist era, Hoover argues that a new fusionism must rally under the banner of fiscal discipline, which, when embedded in “rugged individualism”—a sort of individual freedom quickened with “community spirit”—can appeal to the millennial generation. Hoover applies this framework in a wide-ranging tour through contemporary American policy debates.

Millennials and conservatives alike will welcome Hoover’s powerful case against “generational theft.” Millennials are rather like latecomers to a posh dinner party thrown by their parents and grandparents. After a nibble of dessert and a sip of leftover Dom Perignon, they find the party deserted and are left stuck with the tab. The growing realization among millennials that they will be footing today’s welfare state bill for many years to come means they are ready to embrace a program of fiscal sanity. And given their widespread sense that almost anything can be customized to their individual needs, Hoover persuasively argues that their natural home is the party that has coupled spending, tax, and entitlement reform with an emphasis on individual choice and responsibility in health-care plans, retirement savings, and education. Moreover, Hoover reminds us that the events of 9/11 were formative for millennials and made them vividly aware that American values are in the crosshairs. Republicans are well-situated to remind millennials that, while we are emphatically not at war with Islam, we are at war with radical Islamist supremacists.

But what should we make of her call for Republicans to “emphasize economic values and deemphasize social issues”? Hoover contends that only this decision will help Republicans avoid being perceived as a “fire-and-brimstone party.” While Hoover’s tone might strike the reader as moderate, her message for social conservatives is loud and clear: stop talking about abortion and marriage, and get with the program.

Hoover labels abortion a “second-tier issue,” as if it didn’t concern the most fundamental questions of justice and the common good. Surely this is an odd assertion for someone claiming to champion the dignity of the individual person. Some scholars would trace Hoover’s libertarian-like “rugged individualism” (however tempered by a weak-sauce “community spirit”) back to the individualism of Hobbes and Locke, the “founders” of modern liberalism. Whatever the merits of that pedigree of liberalism, Hobbes and Locke agree with Aquinas on at least this point: a necessary feature of any just government will be the protection of all human beings within its jurisdiction from arbitrary acts of violence. So when Hoover parrots the platitude of being “personally prolife but politically pro-choice” as if it were the pragmatic, reasoned alternative to “absolutist” positions, one wonders whether she has really thought her position through. Either the genetically distinct, self-moving, self-integrating, individuated human being in the womb is a person and hence deserving of basic equal protection of the laws from arbitrary acts of violence—or he or she is not a person, in which case, on what grounds would one be “personally” prolife? To be “personally” prolife necessarily entails being “politically” prolife, or it is nonsense.

The relevant polling data suggests that millennials are more prolife than their parents. Fifty-eight percent of millennials believe abortion is “morally wrong” while 74 percent favor at least some legal restrictions on abortion. Notably, millennials are now the demographic most likely to believe abortion ought to be illegal in all circumstances. If anything, the character of the new generation suggests that the GOP shouldn’t mute its pro-life credentials if it wants to win.

Given Hoover’s emphasis on fiscal discipline, one might have expected for her to call for some kind of truce on marriage. Instead, Hoover dismisses arguments that favor protecting marriage in a few paragraphs and spends a chapter citing familiar “marriage equality” arguments. She concludes that the legal recognition of same-sex unions as marriages is entirely consistent with Republican principles of maximizing individual freedom and equal opportunity. Hoover thinks that millennials will find these arguments appealing because of their more libertarian leanings on economic and sexual issues. Let us abstract for the moment from the abundant social science evidence documenting the positive benefits for civil society of traditional marriage (and the likelihood that the exponential rise in federal spending to fight poverty since the 1960s has been ineffective because policymakers have failed to see that poverty is often a symptom of the breakdown of the traditional family). Still, why should it follow that Republicans have an imperative to recognize same-sex unions in the law as marriages?

Millennial libertarianism suggests that there is still wide agreement across the generations that the government has no business regulating most of our intimate friendships. (To see the point, we need only reflect for a moment on the absurdity of the government issuing chess-buddy licenses and specially protecting permanent and exclusive chess-buddy unions or analogous friendships.) But if true, the burden would be on the government to justify the importance of singling out a new form of friendship for special protection and benefits. A centuries-old tradition of law picked out opposite-sex unions for the good reason that such unions were the kind that produce children. What could be more to the common good than what John Rawls called the “orderly reproduction of society over time”? The burden rests on same-sex marriage proponents to justify the creation of a new entity in law as a requirement of the common good.

As far as I can make out, Hoover’s justification is that the current law denies equality. Yet Hoover makes no effort to explain what marriage is, and so we have no idea whether anyone’s equal rights have been violated when some unions are denied the status of marriage. Still, through the emotive morass of argumentation, one can discern that Hoover thinks marriage is or ought to be something like “any two consenting, committed persons who love each other.” Now who is denying equality? Why does justice only require the recognition of dyadic unions? This is not a slippery-slope question but a matter of principle, if we are talking about protecting the equal rights of all—including the equal rights of people in loving, committed polyamorous relationships.

At any rate, it is not clear that Hoover’s gaze into the crystal ball really reveals that millennials are the crest of the tide of history, inevitably hurtling us toward gay marriage. With millennials favoring the legalization of gay marriage by a 50 percent to 36 percent margin, with the remainder undecided (according to a Pew Research Center study), the future seems rather more ambiguous. The challenge for Republicans is not self-censorship, but to articulate and defend marriage as an essential aspect of the common good.

Hoover set out to hew off the Republican Party’s social conservative leg to gain a hearing with millennials, but instead of offering serious arguments that demonstrate precisely where prolife and traditional marriage arguments fail, she offers quick and easy slogans and emotional anecdotes. These offerings may reaffirm the prejudices of some readers, but it is doubtful that anyone who has reflected seriously on these matters will be persuaded.

Deirdre Cooper is a millennial and Public Policy Analyst for Texas Alliance for Life.

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But Father de Lubac knew that optimism and hope are very different creatures. In real life, bad things happen. Progress is not assured, and things that claim to be “progress” can sometimes be wicked and murderous instead. We can slip backward as a nation just as easily as we can advance. This is why optimism—and all the political slogans that go with it—are so often a cheat. Real hope and real joy are precious. They have a price. They emerge from the experience of suffering, which is made noble and given meaning by faith in a loving God.

A number of my friends have children with disabilities. Their problems range from cerebral palsy to Turner’s syndrome to Trisomy 18, which is extremely serious. But I want to focus on one fairly common genetic disability to make my point. I’m referring to Trisomy 21, or Down syndrome.

Down syndrome is not a disease. It’s a genetic disorder with a variety of symptoms. Therapy can ease the burden of those symptoms, but Down syndrome is permanent. There’s no cure. People with Down syndrome have mild to moderate developmental delays. They have low to middling cognitive function. They also tend to have a uniquely Down syndrome “look”—a flat facial profile, almond-shaped eyes, a small nose, short neck, thick stature, and a small mouth which often causes the tongue to protrude and interferes with clear speech. People with Down syndrome also tend to have low muscle tone. This can affect their posture, breathing, and speech.

Currently about 5,000 children with Down syndrome are born in the United States each year. They join a national Down syndrome population of about 400,000 persons. But that population may soon dwindle. And the reason why it may decline illustrates, in a vivid way, a struggle within the American soul. That struggle will shape the character of our society in the decades to come.

Prenatal testing can now detect up to 95 percent of pregnancies with a strong risk of Down syndrome. The tests aren’t conclusive. They can’t give a firm yes or no. But they’re pretty good. And the results of those tests are brutally practical. Studies show that more than 80 percent of unborn babies diagnosed with Down syndrome now get terminated in the womb. They’re killed because of a flaw in one of their chromosomes—a flaw that’s neither fatal nor contagious, but merely undesirable.

The older a woman gets, the higher her risk of bearing a child with Down syndrome. And so, in medical offices around the country, pregnant women now hear from doctors or genetic counselors that their baby has “an increased likelihood” of Down syndrome based on one or more prenatal tests. Some doctors deliver this information with sensitivity and great support for the woman. But, as my friends know from experience, too many others seem more concerned about avoiding lawsuits, or managing costs, or even, in a few ugly cases, cleaning up the gene pool.

In practice, medical professionals can now steer an expectant mother toward abortion simply by hinting at a list of the child’s possible defects. And the most debased thing about that kind of pressure is that doctors know better than anyone else how vulnerable a woman can be in hearing potentially tragic news about her unborn baby.

I’m not suggesting that doctors should hold back vital knowledge from parents. Nor should they paint an implausibly upbeat picture of life with a child who has a disability. Facts and resources are crucial in helping adult persons prepare themselves for difficult challenges. But doctors, genetic counselors, and medical school professors should have on staff—or at least on speed dial—experts of a different sort.

Parents of children with special needs, special education teachers and therapists, and pediatricians who have treated children with disabilities often have a hugely life-affirming perspective. Unlike prenatal caregivers, these professionals have direct knowledge of persons with special needs. They know their potential. They’ve seen their accomplishments. They can testify to the benefits—often miraculous—of parental love and faith. Expectant parents deserve to know that a child with Down syndrome can love, laugh, learn, work, feel hope and excitement, make friends, and create joy for others. These things are beautiful precisely because they transcend what we expect. They witness to the truth that every child with special needs has a value that matters eternally.

Raising a child with Down syndrome can be demanding. It always involves some degree of suffering. Parents grow up very fast. None of my friends who has a daughter or a son with a serious disability is melodramatic, or self-conscious, or even especially pious about it. They speak about their special child with an unsentimental realism. It’s a realism flowing out of love—real love, the kind that forces its way through fear and suffering to a decision, finally, to surround the child with their heart and trust in the goodness of God. And that decision to trust, of course, demands not just real love, but also real courage.

The real choice in accepting or rejecting a child with special needs is never between some imaginary perfection and imperfection. None of us is perfect. No child is perfect. The real choice in accepting or rejecting a child with special needs is between love and unlove; between courage and cowardice; between trust and fear. That’s the choice we face when it happens in our personal experience. And that’s the choice we face as a society in deciding which human lives we will treat as valuable, and which we will not.

Nearly 50 percent of babies with Down syndrome are born with some sort of heart defect. Most have a lifelong set of health challenges. Some of them are serious. Government help is a mixed bag. Public policy is uneven. Some cities and states provide generous aid to the disabled and their families. In many other jurisdictions, though, a bad economy has forced very damaging budget cuts. Services for the disabled—who often lack the resources, voting power, and lobbyists to defend their interests—have shrunk. In still other places, the law mandates good support and care, but lawmakers neglect their funding obligations, and no one holds them accountable. The vulgar economic fact about the disabled is that, in purely utilitarian terms, they rarely seem worth the investment.

That’s the bad news. But there’s also good news. Ironically, for those persons with Down syndrome who do make it out of the womb, life is better than at any time in our nation’s history. A baby with Down syndrome born in 1944, the year of my own birth, could expect to live about 25 years. Many spent their entire lives mothballed in public institutions. Today, people with Down syndrome routinely survive into their 50s and 60s. Most can enjoy happy, productive lives. Most live with their families or share group homes with modified supervision and some measure of personal autonomy. Many hold steady jobs in the workplace. Some marry. A few have even attended college. Federal law mandates a free and appropriate education for children with special needs through the age of 21. Social Security provides modest monthly support for persons with Down syndrome and other severe disabilities from age 18 throughout their lives. These are huge blessings.

And, just as some people resent the imperfection, the inconvenience, and the expense of persons with disabilities, others see in them an invitation to learn how to love deeply and without counting the cost.

Hundreds of families in this country—like my young friends in Denver, Kate and JD Flynn—are now seeking to adopt children with Down syndrome. Many of these families already have, or know, a child with special needs. They believe in the spirit of these beautiful children, because they’ve seen it firsthand. A Maryland-based organization, Reece’s Rainbow, helps arrange international adoptions of children with Down syndrome. The late Eunice Shriver spent much of her life working to advance the dignity of children with Down syndrome and other disabilities. The Anna and John J. Sie Foundation committed $34 million to the University of Colorado to focus on improving the medical conditions faced by those with Down syndrome. And many businesses, all over the country, now welcome workers with Down syndrome. Parents of these special employees say that having a job, however tedious, and earning a paycheck, however small, gives their children pride and purpose. These things are more precious than gold.

The Nobel Peace Prize winner Albert Schweitzer once wrote that, “A man is truly ethical only when he obeys the compulsion to help all life which he is able to assist, and shrinks from injuring anything that lives.” Every child with Down syndrome, every adult with special needs; in fact, every unwanted unborn child, every person who is poor, weak, abandoned, or homeless—each one of these persons is an icon of God’s face and a vessel of His love. How we treat these persons—whether we revere them and welcome them, or throw them away in distaste—shows what we really believe about human dignity, both as individuals and as a nation.

The American Jesuit scholar Father John Courtney Murray once said that “Anyone who really believes in God must set God, and the truth of God, above all other considerations.”

Here’s what that means. Catholic public officials who take God seriously cannot support laws that attack human dignity without lying to themselves, misleading others, and abusing the faith of their fellow Catholics. God will demand an accounting. Catholic doctors who take God seriously cannot do procedures, prescribe drugs, or support health policies that attack the sanctity of unborn children or the elderly, or that undermine the dignity of human sexuality and the family. God will demand an accounting. And Catholic citizens who take God seriously cannot claim to love their Church, and then ignore her counsel on vital public issues that shape our nation’s life. God will demand an accounting. As individuals, we can claim to believe whatever we want. We can posture, and rationalize our choices, and make alibis with each other all day long—but no excuse for our lack of honesty and zeal will work with the God who made us. God knows our hearts better than we do. If we don’t conform our hearts and actions to the faith we claim to believe, we’re only fooling ourselves.

We live in a culture where our marketers and entertainment media compulsively mislead us about the sustainability of youth, the indignity of old age, the avoidance of suffering, the denial of death, the nature of real beauty, the impermanence of every human love, the oppressiveness of children and family, the silliness of virtue, and the cynicism of religious faith. It’s a culture of fantasy, selfishness, sexual confusion, and illness that we’ve brought upon ourselves. And we’ve done it by misusing the freedom that other—and greater—generations than our own worked for, bled for, and bequeathed to our safekeeping.

What have we done with that freedom? In whose service do we use it now?

John Courtney Murray is most often remembered for his work at Vatican II on the issue of religious liberty, and for his great defense of American democracy in his book, We Hold These Truths. Murray believed deeply in the ideas and moral principles of the American experiment. He saw in the roots of the American Revolution the unique conditions for a mature people to exercise their freedom through intelligent public discourse, mutual cooperation, and laws inspired by right moral character. He argued that—at its best—American democracy is not only compatible with the Catholic faith, but congenial to it.

But he had a caveat. It’s the caveat that George Washington implied in his Farewell Address, and that Charles Carroll—the only Catholic signer of the Declaration of Independence—mentions in his own writings. In order to work, America depends as a nation on a moral people shaped by their religious faith, and in a particular way, by the Christian faith. Without that living faith, animating its people and informing its public life, America becomes something alien and hostile to the very ideals it was founded on.

This is why the same Father Murray who revered the best ideals of the American experiment could also write that “Our American culture, as it exists, is actually the quintessence of all that is decadent in the culture of the Western Christian world. It would seem to be erected on the triple denial that has corrupted Western culture at its roots: the denial of metaphysical reality, of the primacy of the spiritual over the material, [and] of the social over the individual . . . Its most striking characteristic is its profound materialism . . . It has given citizens everything to live for and nothing to die for. And its achievement may be summed up thus: It has gained a continent and lost its own soul.”

Catholics need to wake up from the illusion that the America we now live in—not the America of our nostalgia or imagination or best ideals, but the real America we live in here and now—is somehow friendly to our faith. What we’re watching emerge in this country is a new kind of paganism, an atheism with air-conditioning and digital TV. And it is neither tolerant nor morally neutral.

As the historian Gertrude Himmelfarb observed more than a decade ago, “What was once stigmatized as deviant behavior is now tolerated and even sanctioned; what was once regarded as abnormal has been normalized.” But even more importantly, she added, “As deviancy is normalized, so what was once normal becomes deviant. The kind of family that has been regarded for centuries as natural and moral—the ‘bourgeois’ family as it is invidiously called—is now seen as pathological” and exclusionary, concealing the worst forms of psychic and physical oppression.

My point is this: Evil talks about tolerance only when it’s weak. When it gains the upper hand, its vanity always requires the destruction of the good and the innocent, because the example of good and innocent lives is an ongoing witness against it. So it always has been. So it always will be. And America has no special immunity to becoming an enemy of its own founding beliefs about human freedom, human dignity, the limited power of the state, and the sovereignty of God.

A friend of mine has a son with Down syndrome, and she calls him a “sniffer of souls.” I know him, and it’s true. He is. He may have an IQ of 47, and he’ll never read The Brothers Karamazov, but he has a piercingly quick sense of the people he meets. He knows when he’s loved—and he knows when he’s not. Ultimately, I think we’re all like her son. We hunger for people to confirm that we have meaning by showing us love. We need that love. And we suffer when that love is withheld.

These children with disabilities are not a burden; they’re a priceless gift to all of us. They’re a doorway to the real meaning of our humanity. Whatever suffering we endure to welcome, protect, and ennoble these special children is worth it because they’re a pathway to real hope and real joy. Abortion kills a child; it wounds a precious part of a woman’s own dignity and identity; and it steals hope. That’s why it’s wrong. That’s why it needs to end. That’s why we march.

Never give up the struggle that the March for Life embodies. No matter how long it takes, no matter how many times you march—it matters, eternally. Because of you, some young woman will choose life, and that new life will have the love of God forever.

The great Green Bay Packer theologian, Vince Lombardi, liked to say that real glory consists in getting knocked flat on the ground, again and again and again, and getting back up—just one more time than the other guy. That’s real glory. And there’s no better metaphor for the Christian life. Don’t give up. Your prolife witness gives glory to God. Be the best Catholics you can be. Pour your love for Jesus Christ into building and struggling for a culture of life. By your words and by your actions, be an apostle to your friends and colleagues. Speak up for what you believe. Love the Church. Defend her teaching. Trust in God. Believe in the Gospel. And don’t be afraid. Fear is beneath your dignity as sons and daughters of the God of life.

Changing the course of American culture seems like such a huge task; so far beyond the reach of this gathering today. But St. Paul felt exactly the same way. Redeeming and converting a civilization has already been done once. It can be done again. But we need to understand that God is calling you and me to do it. He chose us. He calls us. He’s waiting, and now we need to answer him.

Charles J. Chaput, O.F.M. Cap., Roman Catholic Archbishop of Philadelphia, is the author of Render Unto Caesar: Serving the Nation by Living Our Catholic Beliefs in Political Life. This essay is adapted from a lecture Archbishop Chaput delivered this past weekend at the Cardinal O’Connor Conference on Life.

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It is almost too much to contemplate: the prospect that we are living in the midst of, and accepting (to various degrees) one of the greatest human holocausts in history. And so we don’t contemplate it. Instead, we look for ways to deny this grim reality, minimize it, or explain away our complacency—or complicity.

It is important, however, to view reality with eyes wide open, focus clear, and gaze not averted. On this thirty-ninth anniversary of Roe and Doe, I would like simply to set forth what Roe and Doe held, in as clear-headed and straightforwardly descriptive legal terms as possible, and to lay out its human and moral consequences. My brief tour of Roe’s unbearable wrongness begins with Roe’s radicalism—its extreme holding creating a plenary right to obtain or commit abortion—proceeds with Roe’s legal untenability, and concludes with Roe’s immorality and the moral problem of our seeming passivity and quiescence in response to the greatest legal and moral wrongs of our age.

Roe’s Radicalism

Start with Roe’s radicalism, a radicalism that we may no longer grasp because it has become so familiar. Roe created a constitutional right to obtain or commit an abortion of a human life—that is, to terminate the life of a human embryo or fetus. It is important to be clear-sighted about this: abortion kills a living human embryo or fetus. What distinguishes “abortion” from (say) miscarriage is the specific intention to kill a living fetus. What was alive before has been deliberately killed. Abortion takes a life. Further, the life taken is human life. There is really no doubt about that as a matter of biology. The embryo or fetus belongs to the species homo sapiens. It is a separate, living human being that is killed by abortion.

To be sure, that human being is killed at an early stage in its life cycle, and for a substantial part of that time could not live without direct biological connection to his or her mother (the person in whom Roe vests the right to terminate that human life). But that does not make the human embryo any less alive, any less human, or any less a separate life from the mother. It just makes the unborn baby more vulnerable and dependent.

The right created by the Supreme Court in Roe is a constitutional right of some human beings to kill other human beings. I do not mean for my description to be provocative, but simply direct—blunt about facts. One need not presume that the human fetus has a right not to be killed in order to recognize that, as a descriptive matter, Roe creates a right for one class of human beings to kill other human beings.

Roe, coupled with Doe, creates a plenary right to kill the embryo or fetus for essentially any reason, at any time throughout all nine months of pregnancy. Distilled to its essence, Roe created a “trimester” framework for abortion. In roughly the first three months of pregnancy, the right of abortion is avowedly plenary: abortion may be had for any reason. In the second three months, government may regulate abortion to protect the life or health of the mother, but again the right to have an abortion remains plenary. In the final three months—after the point of “viability,” when the human fetus could live on his or her own outside the mother’s womb—Roe says that abortion can be restricted or prohibited . . . except where abortion is necessary to protect the “life or health” of the pregnant woman.

This is a big exception. And here is where Doe steps in. On its face, Roe might appear, to the unwary or uninitiated, “moderate”—its trimester-balancing framework a measured, reasonable-sounding, proportionate act of judicial legislation concerning abortion. It is Doe that does a lot of the work, through an indirect and ultimately disingenuous definition of the “health” reasons that always may justify a woman’s decision to have an abortion and trump any interest of society in protecting fetal human life, even when the child could survive outside the mother’s womb. Doe holds that relevant “health” considerations justifying late-term abortions include “all factors—physical, emotional, psychological, familial, and the woman’s age—relevant to the well-being of the patient. All these factors may relate to health.” (Doe’s understanding of “the patient” did not include the fetus; Roe held elsewhere that the human fetus has no legal rights that any person is bound to respect.)

Roe then cross-referenced Doe’s stylized definition of health and incorporated it into the main holding. The result is that an abortion may be had, under Roe and Doe, for essentially any reason, throughout all nine months of pregnancy, up to the point of birth.

Nothing in any of the Court’s later abortion cases alters this definition of “health” or the right to abortion throughout pregnancy. Planned Parenthood v. Casey, the 1992 case reaffirming Roe, tinkered slightly with the trimester framework and the point at which “viability” occurs but did not change Roe’s (and Doe’s) holding that abortion may be had for any reason, before viability, and for any “health” reason throughout pregnancy. The partial-birth abortion cases carried this understanding forward, holding that the state may not prohibit the abortion method of inducing birth and killing the fetus on the way out of the birth canal (Carhart I [2000]), unless an equally effective, equally “healthy” method of killing the fetus is available (Carhart II [2007]).

I suspect that if more people understood Roe’s and Doe’s actual holding fewer would support that constitutional regime. Roe was a truly extreme decision, creating an effectively unrestricted constitutional right to abort a living human being for any reason the mother might have, throughout pregnancy right up to the point of birth.

Roe’s Legal Untenability

This brings us to Roe’s utter indefensibility as a matter of constitutional law. If the U.S. Constitution actually protected such an extreme personal legal right to kill the human fetus, that would be troubling enough, but the trouble would be with the content of the Constitution. The further problem with Roe is that it has absolutely no basis in the text, structure, or history of the Constitution. No rule or principle of law fairly traceable to the text, discernible from its structure, or fairly derived from evidence of intention or historical understanding of an authoritative decision of the people, remotely supports the result reached in Roe. In terms of fair principles of constitutional interpretation, Roe is perhaps the least defensible major constitutional decision in the Supreme Court’s history.

Roe’s reasoning, distilled to its essentials, is that the Constitution creates a “privacy” right to abortion, on the premise that the right not “to bear” a child is protected by the Fourteenth Amendment’s Due Process Clause. No serious constitutional law scholar thinks this is a plausible reading of the Due Process Clause. That clause forbids government to “deprive any person of life, liberty or property, without due process of law.” Without due process of law are crucial words. The Due Process Clause does not say that government never may deprive a person of life, liberty or property. It only says that government may not do so “without due process of law”—that is, arbitrarily, lawlessly, not in conformity with duly enacted laws and accepted procedures for their application.

Many nonetheless support Roe’s holding as a policy matter and therefore seek to rationalize the holding some other way. Perhaps the goofiest is the suggestion advanced by a few law professors, in apparent seriousness, that abortion restrictions violate the Thirteenth Amendment’s ban on slavery. Saner, but in the end still unsound as a legal matter, is the notion that abortion laws discriminate on the basis of sex and thus deny “equal protection of the laws.” The defect in this argument is that abortion laws do not classify on the basis of sex or gender and are not disguised attempts to do so. Rather, they aim at conduct—obtaining or committing an abortion—when engaged in by persons of either sex. Abortion restrictions do not restrict acts of women because they are women; they restrict acts committed by men or women because they kill human fetuses. Further, ask a “pro-choice” “feminist” whether abortion should be permitted for reasons of sex-selection—that is, because the unborn child is a girl—and the sex discrimination argument begins to turn back on itself. All but the most blindly pro-abortion ideologues abandon the argument that abortion rights are required for gender equality, if that means abortion can be chosen for gender-selection of boys over girls.

In Planned Parenthood v. Casey, the Supreme Court rested the right to abortion back where Roe purported to find it, in the Due Process Clause. Recognizing the embarrassments created by this view, Casey added another prop: the doctrine of precedent or “stare decisis,” which is essentially all that is left to support Roe. But Casey’s invocation of the doctrine was transparently disingenuous: Because the public expects the Court to adhere (usually) to its past decisions, because the Court had staked its authority on Roe, and because the Court might be viewed unfavorably by some of the public if it reversed itself in such a case, the Court said that it had decided to adhere to Roe “whether or not mistaken.” Thus, what Roe held to be required by substantive due process Casey held to be required by stare decisis, even assuming Roe to be wrong.

If Roe was radical, Casey was craven. A majority of the Supreme Court apparently believed that Roe was wrongly decided, fully understood the moral and human consequences of the decision, and deliberately adhered to it anyway. Stare decisis has never been thought required by the Constitution, before or since. Brown v. Board of Education (1954) famously repudiated Plessy v. Ferguson (1896) on the question of whether racial segregation was consistent with “equal protection of the laws.” The Court has overruled scores of its own precedents. Indeed, it overruled two cases in Casey. Casey’s reaffirmation of Roe, in the name of stare decisis, was a sham—perhaps the most transparently dishonest major judicial decision since Dred Scott.

Roe’s Immorality

Finally, there is Roe’s immorality—the abortion holocaust it unleashed—and the problem of our response to it. Roe is a radical decision and a legally indefensible one. But what really makes Roe unbearably wrong is its consequences. The result of Roe and Doe has been the legally authorized killing of nearly sixty million Americans since 1973. Roe v. Wade authorized unrestricted private violence against human life on an almost unimaginable scale, and did so, falsely, in the name of the Constitution.

It is hard to escape this conclusion, but not impossible—and many certainly try. I will not here belabor the question of whether the intentional killing of innocent, dependent, vulnerable human children is a grave moral wrong. My concluding point concerns the lengths to which we will go to deny the reality of this holocaust, because it is almost unbearable to contemplate and still go on living life as if nothing is terribly wrong. The cognitive dissonance is simply too great. And so we have become, in effect, a nation of holocaust deniers.

Here is the problem, undressed: If human embryonic life is morally worthy of protection, we have permitted sixty million murders under our watch. Faced with this prospect, many of us—maybe even most—flee from the facts. We deny that the living human embryo is “truly” or “fully” human life, adopt a view that whether the embryo or fetus is human “depends,” or can be judged in degrees, on a sliding scale over the course of pregnancy; or we proclaim uncertainty about the facts of human biology; or we proclaim moral agnosticism about the propriety of “imposing our views on others”; or we throw up our hands and give up because moral opposition to an entrenched, pervasive social practice is not worth the effort, discomfort, and social costs. The one position not on the table—the one possibility too hard to look at—is that abortion is a grave moral wrong on a par with the greatest human moral atrocities of all time and that we passively, almost willingly, accept it as such.

All of this should tell us a few more sobering things. It should tell us that, much as we would like to believe that human beings have become more morally conscious, more sensitive to injustice and intolerant of clear evil, it remains the case that we often either fail to recognize it in our midst, or refuse to respond to it decisively, out of self-interest or cowardice. It should tell us that, much as we would like to think that we surely would have stood bravely against slavery, even if embedded in a nineteenth-century society that tolerated and accepted it as a legal right, we might have acquiesced or been tepid in our condemnation. It should tell us that, much as we would like to think we would never have put up with what transpired in Nazi Germany in the 1930s and the 1940s, the evidence of our lives in twenty-first century America is that we might have put up with quite a lot.

And it should tell us finally, that, as much as we may claim to admire our governmental and constitutional system, the decisions of the Supreme Court in the abortion cases expose the Court—at least on this matter of life, death, and law—as a lawless, rogue institution capable of the most monstrous of injustices in the name of law. The Court has, with its abortion decisions, surely forfeited its legal and moral legitimacy as an institution. It has forfeited its claimed authority to speak for the Constitution. It has forfeited its entitlement to have its decisions respected, and followed, by the other branches of government, by the states, and by the people. Yet the docility of the American people with respect to Roe and abortion rivals the pliancy of the most cowardly, servile peoples toward ruinous, brutal, anti-democratic regimes throughout world history.

The Supreme Court is empowered by the Constitution to faithfully interpret the Constitution. But it is not alone in that power, and when it exceeds it and violates it, it is the responsibility of other actors in our system to check the abuse. As James Madison wrote in The Federalist No. 49, “the several departments being perfectly co-ordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers.” Moreover, it is “the people themselves” who are “the grantors of the commission” and who “can alone declare its true meaning and enforce its observance.”

The Court’s decision in Roe v. Wade should not be accepted as law, in any sense. It should be resisted by legislatures and it should be refused enforcement by executive officials because it is not the law. It should be resisted by all citizens, with all the resources at their disposal, and perhaps even with resources not (yet) at their disposal. Anything less is holocaust denial.

Michael Stokes Paulsen is University Chair and Professor of Law at the University of St. Thomas, in Minneapolis, and co-director of its Pro-Life Advocacy Center (PLACE).

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To a Sanger supporter, the accusation of eugenics touches a nerve. To understand this, one must grasp the subconscious syllogism underlying the emotional reaction: Margaret Sanger and Planned Parenthood are progressive feminist institutions. Progressive feminism cannot coexist with eugenics, which is a malady of the right-wing. Therefore, Margaret Sanger and Planned Parenthood are free of eugenic contamination. QED.

Something new has happened over the last ten years, however, that challenges such easy assumptions, and both Cain’s and Clinton’s language reflected it. No one with any command of the facts can deny any more that Sanger was in some way a eugenicist.

First, scholars of women’s history have begun examining the feminist movement with more objectivity, producing a new literature that is less afraid to detail the unsavory aspects of feminist history. Historical work on eugenics has also begun to shift: Historians of the subject have long recognized Sanger’s involvement in eugenics, but had not sufficiently acknowledged her importance for the movement.

Second, as positive as these improvements in scholarship are, probably the most crucial factor in bringing about a more realistic and balanced assessment of Sanger and eugenics has been the internet. Sanger’s own words are more accessible than ever (a process aided by the multivolume edition of The Selected Papers of Margaret Sanger). Planned Parenthood is simply unable to deny convincingly the truth about its founder.

And what is that truth? Margaret Sanger was many things admirable: a vibrant personality, a brilliant organizer, a canny reader of the temperature of the times, a woman who built powerful institutions in a man’s world. But she was also many things ugly and even despicable: an egotist who frequently clashed with others; a free-love advocate who had a dizzying number of affairs and who hurt many men as a result; and a eugenicist who argued that “birth control is nothing more or less than the facilitation of the process of weeding out the unfit, of preventing the birth of defectives or of those who will become defective.”

In light of this reality, Jean H. Baker’s book, Margaret Sanger: A Life of Passion, is a bit of a scholarly throwback. While it is readable, lively, and in many ways realistic about its subject, it is deeply unsatisfying as an ideological analysis.

Even Planned Parenthood has had to drop the denials of Sanger’s commitment to eugenics and now urges us all instead to avoid judging those of another historical era. After all, as Hillary Clinton basically said in 2009, Thomas Jefferson owned slaves, and he still did some pretty nifty things. Take what you like and leave the rest, that’s the new approach to Sanger.

So Baker cannot simply ignore the fact of Sanger’s eugenic preoccupation, but she doesn’t seem to feel obliged to try to make much sense of it. Instead, she seeks that convenient refuge of the relativist: “nuance.” Critics of Sanger (this reviewer included) are chastised for not having “a more nuanced view of her perspectives and the reasons she accepted aspects of a mainstream movement dedicated to improving human beings.”

Well, fine. While it’s hard to find “nuance” in a worldview that calls organized charity “a malignant social disease,” it would at least be entertaining to read someone trying to do so. Instead, regarding eugenics, what we get with Baker is an exhortation to nuance (in the Introduction) and then an avoidance of the issue for most of the remaining 300 pages. When she does address eugenics, she does so superficially. She acknowledges that Sanger was a “promoter” of eugenics, yet, in describing her motivation, the most she can muster is a variation of the mere-pragmatics  defense: “In an effort to gain support, [Sanger] signed on to negative eugenics.”

Baker further tries her hand at nuance by claiming that Sanger rejected the “standard eugenic proposition that heredity was absolute.” Unfortunately for Baker, there was no such standard eugenic line. Only the most unsophisticated eugenicist would have claimed such a thing, while most scholarly eugenicists (such as Frederick Osborn) knew very well by the 1920s that nature and nurture interacted in the production of human traits. Ironically, in her Introduction, Baker accuses Sanger’s critics of an inadequate knowledge of the eugenics of Sanger’s day, a defect that she herself exhibits in spades.

The book’s treatment of the population-control movement reveals a similar failure to understand the history of eugenics. Baker writes that by the late 1920s, Sanger “had determined that population experts, like eugenicists, were emerging as an expanding pool of potential supporters.” In fact, population experts were eugenicists, plain and simple. Beginning with the first to use the term “eugenics,” Francis Galton (1822–1911), down through the eugenicists with whom Sanger worked in the 1920s through the 1960s, all early population “experts” were eugenicists. The discipline of demography was shot through with eugenic assumptions. As feminist and Marxist historian Linda Gordon observed, “The eugenics people slid into the population control movement gracefully, naturally, imperceptibly … There was nothing to separate the two movements because there was no tension between their two sorts of goals.”

Why were the two movements so closely aligned? The key can be found in a popular slogan of the eugenics/population-control crowd: “Quality, not quantity.” Eugenicists believed that, in order to improve the race, fewer people (only the so-called “fit”) should reproduce. In its 1927 Buck v. Bell decision, written by Oliver Wendell Holmes, Jr., the Supreme Court ruled that compulsory sterilization of the “unfit” was allowable under the Constitution, enabling American states to sterilize, on a far greater scale, those citizens deemed unfit, without their consent and sometimes even without their knowledge. (In the end, a majority of states allowed for involuntary sterilization, leading to over 60,000 sterilizations by 1967.) Between birth control and involuntary sterilization, the eugenics movement had a plan for dealing with the “unfit” in America.

But what to do about the great mass of people outside her borders? As Sanger confided in a letter to Clarence Gamble in 1940, India was “a bottomless sink … They need birth control on a large scale and it should be continually prodded into the national consciousness daily, hourly, for at least five years.” The Rockefeller family, deeply immersed in eugenics, financially supported the earliest eugenic population-control organizations, such as the Population Council. This was done quietly, however; as Frances Hand Ferguson, a former president of Planned Parenthood in America, observed, “Certainly the Rockefellers didn’t want to be known as a family who was telling little brown Indians not to have babies.” Population control was a gussied-up eugenics—with a passport.

Baker’s neglect of this history makes her treatment of eugenics and population control relentlessly shallow and unreflectively ideological. For example, she states confidently that “too large a population blocked opportunities for growth and stalled industrialization in what was now dubbed ‘the Third World.’” This is the language of someone who takes the formulations of eugenic demographers at face value instead of questioning how their ideological agenda might have compromised their scientific endeavors. In fact, as recent articles in Public Discourse have observed, the world is well able to absorb its roughly seven billion people. Economists such as Julian Simon have argued that the healthy population growth of India is one reason why its economic growth has been so robust. Of course, the point of Margaret Sanger: A Life of Passion is not to give a course on contemporary theories of population economics, but a nod of acknowledgment toward these larger issues would have greatly deepened the book’s analysis.

Disappointing as these defects are to the informed reader, the most unsatisfying aspect of the book is its naïveté about Sanger’s model of sexual liberation. Baker, who earned her B.A. in 1960, has ideas about sexuality that seem not to have budged from a sunny, 1960s-era cluelessness about the glories of uncommitted sex. This, despite the divorce revolution, HIV/AIDS, pornification, the sexualization and abuse of children: in short, the sum total of physical and emotional devastation wrought by the sexual revolution. Instead, the reader gets platitudes about Sanger’s affairs as a “life-affirming inspiration” or as “spontaneous, self-affirming alliances with men.” Baker is too good a historian to overlook the heartache that such behavior caused Sanger’s two husbands, but she seems unable to grasp how promiscuity harmed Margaret Sanger herself. The lonely woman at the end of her life, addicted to Demerol and resentful of the loss of celebrity, is the result of a life spent using people and, in turn, being used.

In sum, Baker cannot think outside the liberal academic box. She makes the utterly conventional assumption that eugenics was not what it in fact was: a progressive movement through and through. She does not understand that eugenics is all about one thing: control, the control of benighted masses by an enlightened elite. As Baker correctly emphasizes (but does not understand), Sanger insisted that contraception be called not family planning but birth control. Margaret Sanger’s was an ideology of control: birth control (baited with promiscuity), enabling a eugenic control of population—the progressive application of biopower. It is an ideology that tempts totalitarian elites—wherever they might be found on the political spectrum.

Angela Franks, Ph.D., is the author of Margaret Sanger’s Eugenic Legacy (McFarland, 2005) and the Director of Theology Programs for the Theological Institute for the New Evangelization (TINE) at Saint John’s Seminary in Boston.

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Through it all, one voice of pro-life sanity—certainly not the only one, but a voice to take seriously—has been Fr. Wilson Miscamble, C.S.C., a professor in the history department. Fr. Miscamble vigorously protested the Obama honors; he has been an important figure in the history of the Center for Ethics and Culture, a pro-life bright spot on the Notre Dame campus; and he leads the campus chapter of University Faculty for Life. His pro-life witness at an essential moment in Notre Dame’s history has been exemplary.

So it is with no pleasure that I venture here to make some criticisms of his recent book, a short history of the atomic bombing of Hiroshima and Nagasaki. The Most Controversial Decision is, as history, a great read. Miscamble presents a concise but clear narrative of the events leading up to the attack, especially Truman’s elevation to the duties of the presidency after Roosevelt’s death, for which his preparation at Roosevelt’s hands had been, in Miscamble’s words, a “disgraceful failure.” The race to get Truman up to speed proceeded neck and neck with the race to get the first atomic weapons ready for use. Truman received word of a successful test while returning from the Potsdam conference with Stalin and Clement Atlee, Churchill’s successor. Before he had finished that voyage, Hiroshima became the first city to be attacked with an atomic bomb.

According to Miscamble, neither Truman nor his secretary of state James Byrnes “raised any questions regarding whether the atomic bomb was a legitimate weapon of war.” And, as he points out later, “indiscriminate bombing had become the norm for the Anglo-American forces well before 1945.” I believe that referring to the Japanese attacks, and indeed, previous attacks on Tokyo and Dresden, as “indiscriminate” misstates the matter, to the extent that the word suggests merely a lack of care. Rather, the cities were attacked precisely because they had not only military targets of value, but also because they were large population centers—and thus the label “terror bombing” was aptly applied. Truman himself would describe the atomic bomb as “far worse than gas and biological warfare because it affects the civilian population and murders them by wholesale.” Yet Truman remained ready to drop more bombs than the two that were necessary; and he remained ready to drop more into the future, while praying that “he would never have to make such a decision again.”

What are we to make of this, from a moral point of view? Miscamble rightly distinguishes the question of “necessity” from the question of “morality”; even if the use of the bomb were necessary to shorten the war and save many Americans, and perhaps even some Japanese and other Asian lives, was it a morally defensible decision that Truman made?

By the standards of what philosophers call “common morality,” the answer is clearly in the negative. Common morality is that part of morality that been articulated, developed, and promulgated by the Judeo-Christian tradition, but which also can be known by natural reason. By well before the twentieth century, common morality had coalesced around a principle of just war that those who pose no threat are absolutely not to be intentionally targeted or killed. This principle was acknowledged, but certainly not introduced, by the Second Vatican Council, in its document Gaudium et Spes: “Every act of war directed to the indiscriminate destruction of whole cities or vast areas with their inhabitants is a crime against God and man, which merits firm and unequivocal condemnation.” So common morality, and at least the Catholic Church’s magisterial teaching on the matter, agree that non-combatants should never be intentionally targeted for death.

And “never” means “never.” As John Finnis, Joseph M. Boyle, and Germain Grisez explain in their book on nuclear deterrence, “Moral impossibility is as absolute a limit on responsibility as is any other sort of impossibility, and there are kinds of actions which are of themselves wrong, whatever the circumstances and good intentions.” So, as I noted in a recent Public Discourse essay, if one is convinced of the truth of moral absolutes, one must completely rule out their violations from options for action.

No doubt Truman, like Roosevelt before him, was in a difficult position in considering the invasion of Japan. Some philosophers, like Elizabeth Anscombe, have pointed to the Allies’ demand for “unconditional surrender” as contributing to this difficulty: faced with such a demand, with its implied willingness to absolutely dismantle the Japanese state even if it were to surrender (for “unconditional” means, on its surface, that nothing was off the table), there could be little motivation for the Japanese to lay down their arms.

Miscamble directly takes up this challenge, and his portrait of the Supreme War Leadership Council of the Emperor suggests an astonishing willingness on the part of some members to continue the fight even after the second atomic bombing; change in the demand would, he argues, have been interpreted as a sign of weakness. But Miscamble does not, in criticizing Anscombe, address her more fundamental point: that Truman had “certainly decided to kill the innocent as a means to an end,” a claim for which the evidence is overwhelming; nor does he take on her moral evaluation of this as “always murder.”

Instead, Miscamble approaches the issue through a Machiavellian lens, suggesting that a statesman “must come to ruin” if he is not able to make the hard decisions and “learn to be able not to be good.” Miscamble writes of Truman: “within the privacy of his own heart and soul it is likely that Truman understood he had been forced by necessity to enter into evil. And, so indeed, he had.”

But the idea of being faced with and forced by necessity into doing evil—such as violating the moral absolute against intentional killing of the innocent, or indeed any other moral principle—is no part of common morality. In fact, moral absolutes are framed, as I argued in my previous essay, in terms of intentional acts precisely because it is always possible to refrain from an action whose intention would be contrary to a human good. The deliberate killing of “the innocent elderly and the sick, women and children” is precisely such an action: always and deeply contrary to the good of human life, always and everywhere to be avoided in one’s choices and actions.

The Machiavellian idea, in fact, is deeply opposed to common morality and the tradition of moral absolutes in its pretense that the life of the successful public servant is incompatible with adherence to such absolutes (and to other forms of virtue as well). Common morality does indeed identify acts that only public authorities can perform, such as taxation and imprisonment of felons, but never on grounds that public authorities are exempt from an absolute that governs all agents.

The Machiavellian position, like the position that accepts that moral absolutes must be violated in cases of “supreme emergency,” is also unstable. If no moral absolutes for public servants, who are, after all, only human beings, then no moral absolutes at all. So if one can be forced by necessity into killing the innocents on a grand scale for the great good of the state, then why cannot one be “forced” into such killing on a small scale for the sake of one’s career, education, mental well-being, or family stability?

Thus we come inevitably to the more immediately pressing issues of pro-life consistency and witness. Consistency because the pro-life view identifies a universal moral claim as underwriting its commitment to the unborn: all innocent human beings are to be held absolutely immune from intentionally inflicted harm or death. Snip that thread in the ethics of war, and the entire pro-life garment, covering the unborn, the disabled, and the elderly, begins to unravel. And witness because the pro-life cause is furthered not only by arguments, but by a willingness on the part of pro-life citizens to live out their commitments with an acknowledgment that sometimes those commitments require difficult choices: choices of personal, and even political, sacrifice.

It might well be true that greater suffering would have resulted from a refusal to use the atomic weapons in Japan, or to firebomb Tokyo, or Dresden before that. In fact, these claims cannot be known with certainty, and also could be false. Commitment to the moral principles of common morality, however, is not, and never has been, conditioned on the idea that adherence to those principles would never be demanding: witness all those killed for their refusal to foreswear their faith. To plead for greater “understanding” of the evils that Truman avoided, or the difficulties that he faced, is one thing; but to excuse his choices as “necessary” evils, required for the greater good, is to abandon our post as witnesses to the truth that pro-life principles are immutable and without exception.

Christopher O. Tollefsen is Professor of Philosophy at the University of South Carolina and a Visiting Fellow in the James Madison Program at Princeton University. He is the author, with Robert P. George, of Embryo: A Defense of Human Life, the second edition of which recently has been released. Tollefsen sits on the editorial board of Public Discourse.

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On October 17, 2011, Sequenom, a San Diego–based testing company, rolled out “MaterniT21” in twenty major cities across the United States. Using a technique called “massively parallel shotgun sequencing,” the test identifies fetal DNA in a sample of the mother’s blood and sequences it. The test detects whether the fetal DNA is positive for Trisomy 21, the most common cause of Down syndrome, with the lowest false positives and false negatives of current screening tests.

In reporting on the new test, headlines (for example, here and here) have highlighted how the new test is a “safer” prenatal test for Down syndrome. This is incorrect.

In 2007, the American Congress of Obstetricians and Gynecologists (ACOG) recommended that all women be offered screening and diagnostic prenatal testing for Down syndrome. Noninvasive screening tests for Down syndrome have existed since the 1980s. Like MaterniT21, they use a mother’s blood sample and are just as safe, though less accurate in assessing a fetus’s likelihood of having Down syndrome. In this initial roll-out, Sequenom is only offering its testing to those mothers considered “high risk” due to advanced maternal age, having a family member with Down syndrome, or having already received a “positive” screen result from the existing screening tests. The only way to know for certain whether a pregnancy is positive for Down syndrome, even after receiving a MaterniT21 result, is through invasive testing, usually an amniocentesis or chorionic villus sampling (CVS). Because invasive testing involves inserting a needle into the womb, it has a risk of miscarriage. MaterniT21 does not make invasive testing any safer—if anything, it might increase the risk.

The journal Genetics in Medicine published a Sequenom-funded study on the eve of the new test’s launching. Jacob Canick, one of the study’s leaders, explains how the test is “safer”: “It is possible that with the availability of this new DNA-based test, more women will opt for screening because of the increased safety resulting from far fewer amniocentesis and CVS procedures being performed.” This is the clinical reason cited as justification for introducing the new test: that it will drastically reduce miscarriages from invasive testing. As Dr. Glenn Palomaki, the study’s lead author, put it, “nearly all women with a normal pregnancy could avoid an invasive diagnostic procedure and its associated anxiety, cost and potential for fetal loss.” This quote deserves to be unpacked.

First, “nearly all” pregnancies currently do avoid invasive diagnostic testing. There are millions of pregnancies each year, with 750,000 being considered high risk for Down syndrome, but only 200,000 invasive procedures each year. ACOG made its 2007 recommendations because studies had found that the risk for miscarriage was lower than historically reported when invasive testing was performed at experienced facilities by experienced practitioners. If Sequenom’s goal of reducing the number of invasive tests is achieved, there also will be fewer experienced facilities and practitioners, thereby potentially increasing the risk of miscarriage for those undergoing invasive testing.

Dr. Palomaki’s assurance that “nearly all women with a normal pregnancy could avoid an invasive diagnostic procedure” also deserves consideration. Most parents of children with Down syndrome would object to the crass labeling of their sons and daughters as abnormal. Putting that aside, Down syndrome is but a small fraction of the baseline risk every pregnancy has for what is commonly considered a birth defect. Further, Down syndrome represents only about half of chromosomal conditions identified through invasive testing. This means that for each woman who opts for invasive testing following a positive MaterniT21 result, there could be another woman falsely reassured by a negative result that her child will not have a chromosomal condition.

Sequenom’s test has also been called safer because it can be performed earlier than ever in a pregnancy, as soon as ten weeks. This, however, is another reason for concern.

MaterniT21 can be performed any time from ten weeks forward in a pregnancy. In the research study, half of the samples were from the second trimester, but the test is offered earlier in the pregnancy specifically because it allows for earlier termination. Matthew Rabinowitz is CEO of Gene Security Network, a company developing its own noninvasive prenatal test for Down syndrome. Commenting on Sequenom’s new test, he clinically and candidly stated, “If a couple finds an abnormality, and chooses to terminate the pregnancy, it’s better to do it earlier.” Considering that the majority of women currently receiving a prenatal diagnosis of Down syndrome do opt to terminate, Sequenom’s new test is definitively not safer for the fetus.

For this reason, Sequenom’s product name for the test is rather Orwellian. “MaterniT21” recognizes that the test is for a mother, but provides the opportunity for most women to end their maternal status through abortion.

Sequenom’s justification for its testing is as misleading as the test’s name. In a press release, Harry F. Hixson, Jr., Sequenom’s CEO, said, “We believe that the MaterniT21 LDT will provide physicians and their patients with critical new information to help them make better informed decisions about the patients’ healthcare and pregnancies.” In the study Sequenom funded, however, it noted as an implementation issue that “educational materials for both patients and providers need to be developed and validated to help ensure informed decision making.” This long has been recognized, based on the current administration of prenatal testing.

Study after study has found that a significant number of expectant mothers and their partners do not understand the probability assessments of screening tests, did not expect they would have to make a decision about invasive testing, and, after a positive diagnosis, often are unexpectedly counseled about termination for the first time and rarely informed of the option of adoption. This has led one researcher to conclude that the current administration of prenatal testing does not respect a woman’s right to choose because so many make uninformed decisions. In response, just this summer, both the National Society of Genetics Counselors (NSGC) and the American Academy of Pediatrics (AAP) published new guidelines specifically calling for the delivery of accurate, up-to-date written materials about Down syndrome and referral to parent support organizations when a patient receives a prenatal diagnosis. The NSGC even listed the educational materials that should be provided to patients, but Sequenom has yet to invest in these equally important information resources for expectant mothers undergoing its testing.

Now, other prenatal testing companies have launched testing without providing the balancing resources, but Sequenom has recognized that these resources are needed from the outset of its testing and still does not provide them. Dr. Hixson’s statement simply makes Sequenom one more purveyor of the “prenatal testing sham” that I wrote about earlier this year—justifying prenatal testing as simply providing information while failing to provide all of the needed information. But Sequenom’s motivation for rolling its tests out without the accompanying educational materials makes its actions particularly unconscionable.

Sequenom had intended to launch its test in 2009, when it was being promised as a diagnostic test. On the eve of going to market, however, it had to admit it had manipulated its data. Its stock price plummeted, a shareholder lawsuit followed alongside an SEC investigation, and its research official pled guilty to conspiracy to commit securities fraud. Competitors, such as Gene Security, also are promising similar testing as soon as next year. Sequenom patented its methodology, promising patent battles should these competitors try to roll their tests out. With the launch of its new test, Sequenom’s stock price increased by 4.5 percent.

So, Sequenom having suffered a hit to its reputation and finances, with competitors poised to offer similar testing, pushed MaterniT21 to be the first available test, justifying it on the premise that it was “safer” and would help mothers make informed decisions, but implementing it without the needed educational resources called for by its own paid-for study.

With a potential market of up to 750,000 “clients” initially, and millions if its testing can be shown to be reliable for even low-probability pregnancies, Sequenom stands to reap billions of dollars in revenue. Yet it has not invested even a small fraction of this revenue into the educational materials it recognizes are needed for physicians and patients to make informed decisions about prenatal testing and following a prenatal diagnosis. In offering its testing with the business interest of most women accepting it, and knowing that most will choose to abort, without having been properly informed, Sequenom is participating in the reckless elimination of Down syndrome.

As a laboratory-developed test, MaterniT21 currently is not regulated by the Food and Drug Administration. Therefore, absent public pressure, a lawsuit, or shareholder demands, there is no compulsion for Sequenom to fund the educational resources it recognizes are needed to inform expectant mothers’ decisions. One hopes its leadership will recognize that its current offering of MaterniT21 is reckless, and that investing in the educational resources is a small price to pay for a clear conscience.

Mark W. Leach is an attorney from Louisville, Kentucky, and a Master of Arts in bioethics candidate.  

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He proposed this solution in a New York Times column that will likely be studied by journalism students for decades—as an example of what happens when the last Fact Checker at a “newspaper of record” is asleep on the job.

It took only a 30-second Google search to demolish Kristof’s principal thesis—that the birth of the world’s 7 billionth person is the result of too much unprotected sex that contributes to all these ills.

The 30-second search confirms that population growth is not fueled by an excess of babies, as Kristof contends; it is fueled by more folks living longer than ever. The demographic evidence comes straight from the United Nations Population Division (UNPD). Using UNPD data, a Population Reference Bureau demographer compared population trends in the 0-4 age group and the 65-and-over age group. For simplicity, I’ll refer to these groups as Toddlers and Elders. Here’s what the UN’s data show.

In 1950 there were 335 million Toddlers worldwide and only 131 million Elders. Due to very low birthrates in developed countries and declining birthrates in most developing countries, today Elders are rapidly closing the gap. After Toddlers peak at about 650 million, sometime between 2015 and 2020, “for the first time in history, the [number of Toddlers] will decline” while Elders keep growing in number, reaching 714 million in 2020. By 2050, there will be 2.5 times more Elders than Toddlers—a complete reversal of the 1950 demographics.

Greater longevity is a good thing—the result of scientific and technological breakthroughs in agriculture and nutrition, in medicine, in water purification, and in improved sanitation.

But it’s the Toddlers on whom the future of humanity depends. When they reach adulthood, they will join the workforce, contributing to the nation’s wealth and tax revenues for roughly four decades, revenues sorely needed to fund Social Security and Medicare. It’s the cohort of former Toddlers who’ll be buying the cars, homes, and pricey electronics that keep an economy humming.

It is only right to provide a safety net for the elderly poor, from pure compassion, as well as in recognition of their contributions and sacrifices. But countries in the European Union are already reeling from the crisis of having too few workers to sustain the cradle-to-grave welfare state, even as the number of retirees explodes. Demographically, America is not far behind.

A good Fact Checker might also have questioned Mr. Kristof’s faith in the theoretical modeling exercises of the Guttmacher Institute, which purport to show that an X increase in access to and use of contraception will reduce unplanned pregnancies by Y, and abortions by Z.

The evidence simply doesn’t back this up. Empirical data of the last fifty years overwhelmingly show that with increased access to and use of contraception, unplanned pregnancies and abortions very often rise, or at best, stay about the same (an exception being found among women in former Soviet bloc countries, whose lifetime abortions often numbered well into double digits). Guttmacher and others have published numerous papers describing this apparent paradox.

Spain provides a recent example of this phenomenon: Between 1997 and 2007, contraceptive use among women rose 63 percent, while the rate of elective abortion in Spain more than doubled (108 percent).

In Sweden, teen abortion rates dropped 40 percent between 1975 and 1985, and teen childbearing also fell. Later the government increased pregnancy prevention efforts—providing free contraceptive counseling, subsidized oral contraceptives (OCs) and condoms, and over-the-counter emergency contraceptives. Between 1995 and 2001, teen abortion rates in Sweden increased by almost one-third—from 17 to 22.5 per 1000.

Duke University economics professor Peter Arcidiacono writes: “Our results suggest that increasing access to contraception may actually increase long run pregnancy rates. … On the other hand, policies that decrease access to contraception, and hence sexual activity, may lower pregnancy rates in the long run.”

Key studies with full citations are summarized in a fact sheet titled “Greater Access to Contraception Does Not Reduce Abortions.”

Why do contraceptives fail to live up to their name and their advertising? Many factors contribute to lack of effectiveness in preventing pregnancies (and STDs), especially among teens: method and user errors, the phenomenon of “risk compensation,” age-related fertility, and frequency of intercourse. Guttmacher’s Family Planning Perspectives reports the following 12-month pregnancy rates for sexually active OC users: 3.3 percent for middle-income married women age 30 and above; 13 percent for low-income single teens; and 48.4 percent for low-income cohabiting teens.

Among sexually active women whose partners use condoms as their primary method of birth control, 12-month pregnancy rates are as follows: 6.2 percent for middle-income married women age 30 and above; 23.2 percent for low-income single teens; and 72 percent for low-income cohabiting teens.

If it were just a matter of hormonal birth control not being 100-percent foolproof, and putting aside the moral questions involved in casual and contraceptive sex, some might argue for its use by disciplined, meticulous adults, in a stable relationship, willing and financially able to raise the potential “unplanned” baby.

Hormonal contraceptives are not benign, however, as any Fact Checker would learn from drug labels on the FDA’s website (even without perusing the voluminous Adverse Events data).

The link between hormonal contraceptives and breast cancer has been known for over thirty years. The World Health Organization (WHO) classifies the synthetic estrogen and progestin in contraceptives as carcinogenic to humans. The largest metanalysis (54 studies with over 150,000 women) found that women who use OCs before age 20 have almost double the risk of developing breast cancer before age 30, compared to women who did not use OCs as teens.

Until 2002, hormone replacement therapy (HRT), using hormones similar to those in combined OCs, but in lower doses, was standard treatment for menopausal symptoms. As HRT use increased, breast cancer rates rose by over 40 percent from the early 1980s through 2001. In 2002, the Women’s Health Initiative HRT trials were abruptly halted due to findings of increased risks of breast cancer, heart disease, blood clots, and stroke. As prescriptions plummeted, breast cancer rates in women over age 50 dropped 8.6 percent between 2001 and 2004. WHO now classifies HRT as carcinogenic in humans.

A Fact Checker could have told Mr. Kristof that there is, in fact, a way to slightly reduce population growth through contraceptive use, but not what he had in mind: Contraceptives can kill adults and teens.

In addition to having an increased risk of dying from breast cancer, women using hormonal contraceptives and their partners are dying at higher rates from incurable STDs, like HIV/AIDS, because hormonal contraceptives can double the risk of STD acquisition.

Women continue to die from high levels of synthetic hormones. For example, about 130 deaths have been linked to the Ortho Evra patch from blood clots resulting in heart attack, stroke, or pulmonary embolism.

Three new studies show a higher risk of lethal blood clots or gallbladder disease in women using birth control pills like Yaz. The manufacturer, Bayer, is already facing “6,850 lawsuits alleging that Yaz’s drospirenone ingredient is more dangerous than those used in competing pills. About 190 deaths from heart attack, stroke or pulmonary embolism have been associated with Yaz and similar pills.”

The manufacturer of NuvaRing® now faces 730 lawsuits in the U.S. for blood clot-related injuries and deaths associated with its use. About 40 deaths linked to NuvaRing® use have been identified to date in the FDA adverse event database.

A good Fact Checker could have given Mr. Kristof these hard truths and spared him from looking foolish. But where are all the good Fact Checkers when you need them? Not at The New York Times.

Susan E. Wills, Esq., is assistant director for education and outreach at the U.S. Conference of Catholic Bishops’ Secretariat of Pro-Life Activities.

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It’s shocking, but incontrovertible. Two decades ago, Harvard economist Amartya Sen, in an arrestingly titled article, documented the statistical reality that “More Than 100 Million Women Are Missing.” In a recently published book, Unnatural Selection, journalist Mara Hvistendahl convincingly demonstrates that the overwhelming reason for the increasingly large demographic disparity in the male-female birth ratio is sex-selection abortion. Hvistendahl estimates the number of missing or dead now to be 160 million and counting. Women have abortions because (among other reasons) they are able to learn the sex of their unborn baby and kill her if she’s a girl.

The phenomenon is most pronounced in certain Asian populations where the birth of girls is especially discouraged, but is not limited to Asia. Hvistendahl shows that sex-selection is not culturally or uniquely Asian. Male-child preference exists everywhere. Sex-selection abortion rises as birth rates fall, as wealth increases (especially in developing nations), and as technology for identifying a child’s gender in utero becomes more reliable and more available.

Sex-selection abortion occurs in America, too, and the practice is likely to increase. In August, a study in the Journal of the American Medical Association reported that a simple blood test seven weeks into pregnancy can reliably identify the sex of the child. Watch for a spike in abortion rates over the next few years as parents find it easier and cheaper to “choose” to have a boy by killing the fetus if—in a bitter reversal of an expression of joy—“it’s a girl.”

The shocking reality of sex-selection abortion cries out for laws banning the practice. Polls have shown that about 95 percent of the American people oppose sex-selection abortion. Even those who style themselves “pro-choice” overwhelmingly agree that abortion should not be allowed when the reason for such a choice is that the child to be born is female. The most pernicious radical feminist argument for abortion rights—that abortion is essential for “gender equality”—doubles back on itself in the case of sex-selection abortion: if abortion on the basis of the sex of the child—killing girls because they are not boys—is not sex discrimination, it is hard to know what is. (Hvistendahl is, awkwardly, pro-choice, yet horrified by the consequences of “unnatural selection.”)

Four states—Illinois, Pennsylvania, Oklahoma, and most recently Arizona—have enacted laws prohibiting sex-selection abortion. Those laws have yet to be tested in the courts. At least seven other states have considered bills that would ban the practice. A sex-selection-ban bill was introduced in Congress in 2009—I worked with committee staff on the bill—but it died in the then Democrat-controlled House.

Are such bans constitutional under the Supreme Court’s decisions creating a right to abortion? The question such laws present is a dramatic one, challenging the underpinnings of Roe v. Wade in the most fundamental and direct of ways: Does the U.S. Constitution create a right to abortion, even when the woman’s reason for abortion is that she does not like the sex of her unborn child?

Sadly, the answer, under the Supreme Court’s absurd, through-the-looking-glass constitutional law of abortion, is yes. Under Roe and the Court’s 1992 decision in Planned Parenthood v. Casey, a woman has a constitutional right to abort for any reason up to the point of “viability,” when the child could live outside the mother’s womb. Even after viability, a woman may abort for any “health” reason, an exception that ends up swallowing the rule: the Court’s abortion decisions define “health” justifications for abortion to include any “emotional,” “psychological,” or “familial” reason for wanting an abortion.

A pregnant woman’s (or a couple’s) preference for a boy rather than a girl would seem to fit comfortably within the gaping loophole for “emotional” or “familial” reasons for abortion. Parents are thus free to choose to kill female human fetuses because they are female, even when the unborn child could live outside her mother’s womb. It thus appears that, under Roe and Casey, laws banning sex-selection abortions are unconstitutional through all nine months of pregnancy.

This, of course, is madness, and it highlights, in an especially persuasive way, the extreme madness of the Supreme Court’s current abortion doctrine. It exposes the grim legal reality that abortions may be had for any reason. It lays bare the doublespeak of “health” justifications for abortions, and it highlights the logical (and moral) incoherence of abortion-rights arguments predicated on notions of “women’s rights” or “equal protection”: a right to abortion, in the name of gender equality, ends up being a right to abort females.

The fact that laws banning sex-selection may fly in the face of the Roe and Casey decisions is no reason not to enact them. On the contrary, it is a powerful reason to enact them: the justices, and abortion supporters generally, ought to be forced to confront the uncomfortable reality of the Court’s abortion jurisprudence. Those who style themselves as “centrists” or “moderates” on abortion–such as those who claim to be “personally opposed but pro-choice” or who acquiesce to Roe’s abortion regime for some other political or social reason—need to understand precisely what such a position entails and the lethal logic of what they have agreed to accept.

This goes for Supreme Court justices, as well. Justice Anthony Kennedy, whose vote was pivotal to the 1992 Casey decision reaffirming Roe on grounds of stare decisis, professed himself shocked— shocked!—to discover a few years later that the logic of Casey yielded a constitutional right to partial-birth abortion. He had not realized that a plenary right to “choice” on abortion meant that a physician could induce labor, deliver an intact, living baby except for the head, puncture the child’s skull, vacuum out its contents, and then complete delivery. Kennedy found himself outvoted, 5–4, and thus dissented in the 2000 Stenberg v. Carhart decision, recognizing a constitutional right to partial-birth abortion. He wrote the majority opinion narrowly upholding the federal partial-birth abortion ban, 5–4, in Gonzales v. Carhart in 2007. (Alas, Kennedy reaffirmed the “health” exception and the Court only distinguished, and did not overrule, its earlier partial-birth ruling. In the end, Gonzales holds only that partial-birth abortion can be banned only if it is clear that an equally “safe” abortion is available by some other method.)

Being confronted with a harsh reality can change the minds of persons who have thought about a question only in abstract, arid terms. It is possible, then, that even a pro-abortion Court, confronted with a law banning sex-selection abortion, might recognize and retreat from the consequences of its own prior decisions. Enacting sex-selection bans, even if contrary to Roe and Casey, just might lead the Court to begin charting a path away from Roe.

A sex-selection ban would indeed present the Supreme Court with a dilemma. To strike down such a law—in essence, to embrace a constitutional right to sex-selection abortion—would expose just how extreme and immoral the Court’s present abortion doctrine really is. To read such a result in the name of “gender equality” would be monstrous and absurd. Such a ruling would undermine support both for Roe and for the Court as an institution as never before. (Concern for the Court’s own prestige and public support was, in fact, part of the reasoning in Casey for reaffirming Roe.) A sex-selection ban dares the pro-abortion justices to embrace an abortion right to kill girls for being girls. Such a ruling would expose the illegitimacy of the Court’s abortion decisions.

On the other hand, for the Court to uphold a ban on such abortions would require a concession with powerful symbolic consequences: the human fetus has a gender; and killing a living fetus on the basis of such a distinctive, personal, permanent feature of human identity is unthinkable, and may rightly be punished. Such a concession would undermine the moral and legal premises of the entire judicially created right to abortion. If abortion merely removes unwanted tissue, its gender does not matter. But if gender matters, it must be because the unborn living being in the womb is already a human child, not merely “potential” life. The issue of sex-selection abortion thus challenges the very “it”-ness of the living human embryo or fetus killed by abortion—the implicit non-humanity of the fetus that underlies most arguments for allowing abortion. It is a girl or a boy—a member of the human family, albeit an extremely vulnerable one, whose life hangs in the balance. Acknowledge the humanity of the fetus and the regime of Roe collapses.

It is unclear which horn of the dilemma the Court would choose today. Four justices (Roberts, Scalia, Thomas, and Alito) would almost certainly uphold a sex-selection ban. Indeed, they would probably all agree that Roe and Casey were wrongly decided, and could properly be overruled. Four justices (Ginsburg, Breyer, Sotomayor, and Kagan) would probably hold that Roe’s right of choice is inviolable and, yes, that abortion is allowable for any reason a woman chooses. Justice Ruth Bader Ginsburg has explicitly defended Roe’s result on “feminist” grounds of sex equality. It would be interesting, and revealing, to see if she would affirm an absolute constitutional right to abort female human fetuses because they are female, in the face of a state or a federal ban forbidding sex-discrimination abortions. Would the woman who built her fame as a crusader against gender discrimination end up embracing fetal gendercide?

That leaves Justice Kennedy, whose votes in abortion cases have reflected a wet-finger-to-the-wind approach driven by the desire to appear moderate, by extreme sensitivity to elite public opinion, and by a concern to preserve the Court’s political capital and prestige. He has voted, alternately, to replace Roe (in 1989), to reaffirm Roe on the basis of stare decisis (in 1992), to deny a right to partial-birth abortion (in 2000) and, most recently, to accept but cut back on such a right (in 2007). His vote, more than that of any other justice, will be susceptible to the political winds and attuned to a decision’s effect on public perceptions of the Court as an institution and of him personally. He might provide a fifth vote to uphold a ban on sex-selection abortion, but would be unlikely to support any full-scale reversal of Roe’s or Casey’s core premises.

The intellectual, constitutional, legal case against the legitimacy of Roe already has been won. Roe hangs on by the thread of stare decisis, which in turn is a function of a few justices’ perception of the need to adhere to a concededly indefensible precedent for essentially social and policy reasons rooted in believed public support for the outcome. Knock out the prop of public support, and Roe falls.

In making this specific issue, sex-selection abortion, the pressure point of political and legal debate, and of public discourse over the constitutional status of abortion rights, we can frame the discussion in terms most favorable to the pro-life stance, most persuasive to those who are undecided or uncommitted, and most uncomfortable for defenders of the extreme pro-abortion status quo. The result of any test case, down the road, very likely turns on whether President Obama has a chance to make further appointments to the Court.

This suggests yet another reason for pressing this issue in the form of a proposed federal law banning sex-selection abortion. Not just pro-choice justices, but also pro-choice politicians need to be confronted with, and called to account for, the lethal logic and terrible consequences of their support of Roe. President Obama, and pro-choice members of Congress and state legislatures, should be put to a straightforward test: Do you support or oppose a right to abortion for reasons of sex-selection? Should a woman have a constitutional right to abortion because “it’s a girl”? There is no better litmus test issue over life, and there is no better time for pressing such a challenge than during an election year.


Michael Stokes Paulsen is University Chair and Professor of Law at the University of St. Thomas, in Minneapolis, and co-director of its Pro-Life Advocacy Center (“PLACE”).

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Ms. A might argue, for example, that the legalization of abortion does not harm her. Of course millions of other people have had abortions, and most never would have considered one had it not been legal. A large percentage of these women have been coerced into abortion by parents or boyfriends. And there is, obviously, the harm suffered by the children actually aborted. But Ms. A has neither had an abortion, nor been aborted by her mother, and so believes she has suffered no harm.

Similarly, Mr. B argues that he is not harmed by no-fault divorce. Of course divorce has gone from a rare proceeding, used under extreme conditions, to a commonplace social practice that ends nearly half of all marriages. Perhaps we could argue that these people, and their children, have been harmed. But Mr. B is still happily married after all these years, so he believes he has suffered no harm.

Finally, Ms. A or Mr. B will turn to you and ask how X will harm you personally. If you cannot come up with an answer, your support of X is expected.

The most common way to answer this question is to concede that X will not harm me personally, but to appeal to other considerations against X—based on the nature of human persons, ethical principles, the nature of law and society, and the overall institutional degradation that will follow the enactment of the policies in question. In this essay, however, I want to concentrate on the claim that such public policies do not harm me personally.

First, such a claim is self-serving. It only considers the harm done to me, while discounting as irrelevant the harm done to millions of other human lives; and the evidence of the harm caused to so many people by these two legalized atrocities is incontrovertible.

Second, such a claim is self-congratulatory. It assumes that when the change happens, harm may happen to other people, but it certainly will not happen to me. One therefore views oneself as superior to others, above the harm these practices cause.

Third, such a claim conveniently accounts for only that kind of harm that the arguer is thinking about at the moment, such as serious and obvious physical or psychological harm, while passing over less serious but no less real harms, and discounting the reality of moral and social harm.

Fourth, such a claim juxtaposes “no harm at all” with “irreparable damage” as the only two outcomes in a situation where one might be harmed. There are other possible states of affairs. One can be harmed, but choose to accept it for the sake of some other good. One can be harmed without realizing it. One can also be harmed, yet survive or even recover.

A harm is, at minimum, a kind of loss. Not every loss is a harm. It is best to save the term “harm” for those situations in which I lose something that belongs properly to me, something fitting to me without which I cannot flourish as well. I have a responsibility to protect such things. Others have a basic responsibility to refrain from taking these things from me, and occasionally, they have a responsibility to supply them to me.

We have been personally harmed by the regimes of abortion and easy divorce. We might not realize it; we might have survived it; we might choose to ignore it; we might even have recovered. But we have all been harmed.

How many men have lost children they never knew existed? How many women, having given in to the temptation to abort in a crisis simply because the possibility was there, easily accessible, and legal, now suffer for that choice? How many men and women, who otherwise might never have imagined the option had it been illegal, at least seriously considered the idea? Such temptations, seriously pondered, are damaging to us. Even if we refuse the temptation, there remains the shame of having proposed it; we may recover, but we have sustained damage. And the children who know that they were just fortunate not to have parents who destroyed their own children (or worse, that they just happened to be the children their parents did not destroy) live every day with the knowledge that their existence depends on the whim of those in power.

How many husbands and wives, having declared their love and fidelity until death, find themselves seriously tempted just to walk away from their marriage when bumps arise on their road to bliss? How many suspect that their spouses just might walk if things do not go their way? How many fear at the first major conflict that it might be the end of their marriage, rather than, well, just a fight? How many children live in fear when their parents argue, not because their parents indicate that they will divorce, but because so many of their schoolmates come from broken homes—and because the authorities in their lives, fearing to cause pain to children from broken families, insist that a family is whatever people say it is?

When the social structures have changed such that we all live in fear and suspicion that those we most love and who claim to most love us may abandon us or even destroy us, we are all damaged. This is true of a society where abortion is permissible and encouraged for women in desperate or inconvenient situations for bearing a child. It is also true of a society where no-fault divorce is a readily available path for troubled couples.

The knowledge that abortion and no-fault divorce are part of our culture makes my job as a husband and a father harder than it should be. It takes years of work to overcome the fears and suspicions that grow when these two evils are legally permitted choices. My family and I have suffered damage. We may not have suffered the damage of those who practiced abortion or underwent a divorce; we may have recovered. But the damage was nonetheless real. It is too important to pretend it did not happen.

Who has harmed us? I propose that it is the society of which we are members, through its government and laws. These are hard words that require justification.

Human beings are both rational and social creatures. We live not in herds but in ordered societies. We do this because it is good for us: the order of society that is necessary for us to live well is preserved by government and laws. If our government and laws do not help us to flourish (or if they actually assault our well-being), it is impossible to justify living under that government or those laws.

If government exists to support us in our flourishing, then it is obligated, in the deepest sense, to function in accordance with the truth of what is fitting for us. It is obligated to try to protect us from harm, and to support us in what is good for us. A society that, through its government, turns a blind eye when the human rights of its citizens are violated—when its homeless are robbed, its gay men are assaulted, its young women raped—is a society that is failing to do its job. A people who, through its government, declares by law that it is permissible to do these things to the people it is bound to protect, on the other hand, is a government that has turned on some of its people in favor of other, more powerful people.

The cause du jour, the primary contest over human flourishing, is the debate over the meaning of marriage.

The truth of marriage is that it can only exist between one man and one woman, for the sake of the children who may come as a result of their sexual union. Thus government is obligated to recognize the truth of marriage; to protect and support that project of bringing children into the world and caring for them; to recognize all and only actual marriages; and to discourage sexual acts in other contexts.

Proponents of same-sex marriage might well note here that my argument about the harm I undergo makes sense only if one agrees with my understanding of sex and marriage. This is, of course, true. With a different understanding of marriage, one might argue that same-sex couples are harmed by the lack of marital status because they believe it is owed to them.

The simple fact that no one in the entire history of humanity has ever thought it even possible for two people of the same sex to marry should give us pause. If it does not, then arguments about the nature of marriage should. I have argued previously in Public Discourse that marriage exists only as the union of one man and one woman, declared before the community, because the community has a stake in the outcome of their sexual union, i.e., children. If it were not the case that sex leads naturally (though not in every case) to children, the community would have no interest in the relationship, any more than in any other relationship of friendship or amusement. Indeed, it is impossible to imagine how anyone would have thought up the idea in the first place.

On the other hand, those who support same-sex “marriage” do so with an argument that looks something like this: “Nobody talks that way anymore. Nobody acts that way anymore. Therefore marriage has changed.” They look around at a society that, at least in practice, behaves as if sex and marriage mean nothing more than whatever the people who enter into a relationship want it to mean.

We may note that the conclusion of the above argument does not follow from the premises. The fact that many people think and act differently these days about marriage does not change the nature of marriage, any more than the nature of a cat would change if we decided to treat it like a rosebush.

If marriage is what they say it is, however, then marriage is nothing more than a contract. And if it is merely a contract, then the proper response of government and law is not to legalize same-sex marriage; it is to get out of the marriage business entirely. Law’s function, then, would be merely to help settle disputes between people who claim contracts have been violated. Any harm involved would be entirely a function of the terms of the contract, not the nature or circumstances of the people involved.

If, however, the nature of marriage is what I have argued for here, then two people who are literally incapable of marrying one another are not suffering a harm, or even a loss, when the society refuses to call their relationships a marriage. There is a difference between suffering a loss and simply not getting what one wants.

My wife, my children, and I are harmed when the government turns its back on the truth of marriage, and thus turns its back on its citizens’ flourishing. The government may force me to send my children to schools that mandate the celebration of same-sex relationships, thus violating my rights as a parent. It may prosecute me for hate crimes for the very expression of my views, thus violating my freedom of conscience and speech. I hope not. These harms are not a logically necessary outcome of the recognition of same-sex marriage, so perhaps that threat will dissipate. But the other harms that I have spelled out above are indeed necessary and harmful consequences of the adoption of same-sex marriage. The proper response of society to the widespread abuse of sex and marriage is not to multiply the harm by abandoning the truth. Rather, it is to get back on the right track.


Stephen J. Heaney is an Associate Professor of Philosophy at the University of Saint Thomas (St. Paul).

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The new research reports the findings of three surveys in which thousands of parents and hundreds of siblings and individuals with DS themselves, were questioned about what it is like to be affected in one way or another by DS. Ninety-nine percent of parents said they loved their child with DS and 97 percent were proud of them; only 4 percent regretted having their child. While 4 percent of siblings would “trade their sibling” with DS, 96 percent indicated that they had affection toward their sibling with DS, with 94 percent of older siblings expressing feelings of pride. Finally, although 4 percent of individuals with DS expressed sadness about their lives, 99 percent said they were happy with their lives and 97 percent liked who they are.

Caplan believes that most mothers will still abort, even after this research has been released, simply because it is a fact that, currently, most mothers do abort following a prenatal diagnosis. This fact, however, does not support Caplan’s callous conclusion that “Down syndrome is almost universally seen as something to be avoided.”

The most recent studies find that there are more babies than ever being born with DS in the United States. Moreover, there are hundreds of families on waiting lists to adopt a child with DS. As for the high percentage of mothers who terminate, that does not support the conclusion that they are seeking to avoid DS.

Certainly some are, but study after study has found that up to half of all women accepting prenatal testing did so without making an informed decision, and that half did not expect they would have to decide whether to abort following a prenatal diagnosis. To his credit, Caplan recognizes that prenatal testing can result in uninformed and unexpected decisions to terminate, due to medical professionals and general society often having “nothing good at all to say” about DS. Indeed, one study has found that almost a quarter of physicians actively urge abortion, or emphasize the negatives about DS in order to encourage it. Even for those committed to non-directive counseling, a majority of physicians and genetic counselors have said that they would abort following a prenatal diagnosis for DS, which no doubt affects how a diagnosis is presented. Other recent studies also have found that a significant percentage of adults, youths, and physicians still hold outdated views about DS and would prefer that children with DS were segregated from, rather than included in, the community and typical classrooms. Therefore, those who choose to abort often are seeking to avoid an inaccurate, uninformed, and overly negative view of a life with DS, which is not supported by the current research.

Caplan laments that this “climate for having kids with Down syndrome, happy though they may be, is not good.” But Caplan’s own words contribute to maintaining this lamentable climate.

Caplan writes as though aborting a fetus somehow avoids Down syndrome. An abortion will prevent a child from being born, but it will not prevent that child from having DS; DS occurs at conception. Caplan ends his column by stating that “an abortion for medical reasons is a highly personal decision.” Yet, there is not a medical reason for aborting because of a prenatal diagnosis for DS. DS does not pose a risk to the health of the mother or the child. (Caplan refers to heart and stomach defects that some children with DS have, but these can now almost always be treated surgically.)

Nevertheless, the climate of ignorance about, and prejudice against, DS does exist, which is why this new research needs to be shared with the medical community and with expectant parents. While Caplan calls for this, he is simply wrong to assume that sharing this information will not make a difference. The most influential information an expectant mother receives is from her physician and from written resources. Physicians should be well-informed about DS and provide accurate written materials to their patients. Ignorance and prejudice persist, however: over 80 percent of medical students are not trained in working with individuals with intellectual disabilities, and almost 60 percent of medical school deans do not believe they should be. Further, while most physicians now offer prenatal testing to all expectant mothers, less than a third provide them with educational materials.

This pervasive, self-imposed ignorance in the administration of prenatal testing for DS is contrary to ethical medical practice because it denies expectant parents the information they need to make informed decisions. The same studies that identified the pervasiveness of outdated views about DS also found that those who knew someone with DS were more accepting of DS, and that was true as well of physicians who knew someone with DS, as compared to those physicians who had not known any. Despite their rising birth rate, those with DS remain an incredibly small minority population. This is precisely why providing information about these new studies is so important, for most expectant parents and their physicians will not otherwise have or understand the positive experience of getting to know a person with DS.

The further significance of the new research is that it addresses the concerns of mothers who have aborted following a prenatal diagnosis. These mothers were concerned that the condition would be an excessive burden on them and their other children, and that DS may be too much of a burden for the child him- or herself. The three new studies directly counter these concerns and more, as they reveal a truth not often considered: a child with DS will almost always be a positive force in the lives of his or her parents and siblings. The studies found that 79 percent of parents felt that their outlook on life was more positive because of their child with DS. For siblings, the response was even greater, with 88 percent feeling that they were better people because of their siblings with DS.

The most recent practice guidelines call for sharing positive stories about DS, and the new research provides physicians with those positive stories. These stories do indeed matter. Kathryn Lynard Soper is the author of Gifts: Mothers Reflect on How Children with Down Syndrome Enrich Their Lives, which is an approved resource by the National Society of Genetic Counselors’ practice guidelines. The introduction to the book’s sequel, Gifts 2, presents compelling evidence of how sharing positive stories can and will make a difference. Soper writes of co-hosting a new parents’ workshop at the National Down Syndrome Congress convention. A woman holding a baby started the Q&A time with the following comment: “This is Grace. I just wanted you to know that if I hadn’t read your book, my daughter wouldn’t have been born.”

Contrary to Caplan’s opinion, DS is not something almost universally sought to be avoided. Moreover, sharing accurate information about DS, the newest of which is overwhelmingly positive, can and will change expectant parents’ views following a prenatal diagnosis. This is in the best interest not only of those who are conceived with Down syndrome, but also of those who are blessed to know them.


Mark W. Leach, Esq., is an attorney in Louisville, Kentucky, where he is pursuing a Master of Arts in Bioethics. He is the founder and chair of the Informed Decision Making Task Force for Down Syndrome Affiliates in Action and was a contributor to Gifts 2. The views expressed are entirely his own.

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Although that is not a great deal of time, it did allow us to dig deeper into the candidates’ understandings and convictions than is typical in presidential debates. We eschewed questions designed to make the interrogator look smart and the candidate look stupid. Our goal was not to embarrass anyone. By the same token, the candidates were informed that we would not accept stump speeches or talking points.

To their credit, the candidates took that warning to heart. And so we learned, and I believe those viewing the forum on CNN or at TownHall.com learned, quite a bit about how the candidates understand the principles at the foundation of our civilization and Constitution, and how each would honor those principles in addressing the daunting—in some cases unprecedented—challenges we as a people face today.

Senator DeMint, focusing on the national deficit, the debt crisis, and the poor performance of the economy under President Obama, pressed the candidates on their beliefs about the Constitution’s limitations on the scope, size, and intrusiveness of the federal government. Here we expected and found a large measure of agreement. All the candidates stressed the need to shrink the national government to bring it within its constitutional bounds and to eliminate burdensome levels of taxation and regulation that impede economic growth and large-scale job creation. We had hoped for some specifics—since it is easy to praise limited government as an abstract ideal, but difficult actually to name which agencies or programs would be abolished or trimmed—and we did manage to get a few.

Congressman King’s questions focused on what George H. W. Bush famously called “the vision thing.” The congressman asked, for example, “Is America still Ronald Reagan’s (and John Winthrop’s) ‘Shining City on a Hill’?” and “What is your view of the next stage in America’s destiny, and what is your plan for getting us there?” Again, there was wide agreement that America, as a beacon of freedom in the world, is a truly exceptional nation with a special destiny. There was also agreement that the fulfillment of that destiny depended on fidelity to the principles of limited government, the rule of law, individual liberty, civic virtue, the market economy, respect for the integrity of institutions of civil society, equality of opportunity, and personal responsibility.

When my turn came, I asked each candidate a question designed to elicit their reflections on three issues of critical concern to me and many of our fellow citizens: (1) our obligations to human life in the era of Roe v. Wade; (2) the relationship of federal to state power in our federalist system when it comes to protecting basic rights; and (3) the options available in the face of judicial edicts that violate constitutional principles, as the Roe decision infamously did, by usurping the authority of the people acting through their elected representatives.

Here is what one commentator referred to as my “electric question”:

Many believe that we need a constitutional amendment to overturn Roe v. Wade. However, Section Five of the Fourteenth Amendment expressly empowers the Congress, by appropriate legislation, to enforce the guarantees of due process and equal protection contained in the Amendment’s first section. As someone who believes in the inherent and equal dignity of all members of the human family, including the child in the womb, would you propose to Congress appropriate legislation, pursuant to the Fourteenth Amendment, to protect human life in all stages and conditions?

To the surprise of many, the first three candidates—Michele Bachmann, Herman Cain, and Newt Gingrich—all said “yes.” Ron Paul said “no.” And Mitt Romney said “no, but . . .”

Conservative blogger Jennifer Rubin was annoyed by my question and appalled by the affirmative answer given by Bachmann, Cain, and Gingrich. I had, she opined, sent the candidates off in pursuit of a “lark”—the idea that abortion could be restricted without the Supreme Court reversing itself on Roe v. Wade. Worse yet, I was inviting them to endorse “lawlessness”—and they foolishly accepted the invitation! She praised Romney—no mention of Paul—for being “adult” enough politely to decline to go along with so absurd and dangerous an idea.

Well, now, let’s look at what we have here.

Jennifer Rubin supposes that when the Supreme Court hands down a ruling, however lawless it may be, that ruling is now the law and, as such, binds the other branches of government. For the president and Congress to refuse to treat the Court’s Diktat as controlling their actions would be unconstitutional and thus lawless. This view, known as judicial supremacy, is nicely described by one of its most notable critics, constitutional law scholar Gerard V. Bradley:

If the Supreme Court says that the Constitution requires this, that, or the other thing (perhaps having discovered it lurking in “penumbras formed by emanations”), then, damn it, that’s what the Constitution requires, and short of a constitutional amendment or the Court reversing itself there is, in all instances, nothing anyone can do.

Jennifer Rubin is hardly alone in endorsing (or simply assuming the unquestionable validity of) judicial supremacy. It is a view widely held these days, especially among defenders of liberal judicial activism (Rubin herself is not one of those, by the way), but it was not the view of the American founders or of Lincoln. And, as Professor Bradley has observed, that should count pretty heavily in favor both of my question and an affirmative answer to it in a presidential forum devoted to exploring America’s founding principles.

Nothing in the Constitution itself confers upon the Supreme Court supremacy in constitutional interpretation. Even those founders, such as Hamilton, who interpreted the document as implying a power of judicial review (the Constitution does not expressly confer such a power) did not interpret that power as establishing the supremacy of the judicial branch over the others. Nor is judicial supremacy consistent with the structure or logic of the system of government established by the Constitution. It is true that under Article III of the Constitution the Supreme Court is supreme over the “inferior” federal courts, but that does not mean that its usurpations of the powers assigned by the Constitution to the other branches of government, when they occur, must be treated by the president and Congress as beyond challenge.

As I pointed out at the Palmetto Forum, Abraham Lincoln could not have been clearer in his rejection of judicial supremacy or more forceful in his denunciation of it as a mortal threat to republican government—government by and for the people, the type of government for which Lincoln was willing to fight a bloody civil war. The issue presented itself in his era in the context of a decision remarkably like Roe v. Wade. That was the Supreme Court’s ruling in the case of Dred Scott v. Sandford, denying the authority of Congress to restrict slavery in the federal territories and depriving blacks, even free blacks, of the rights of citizenship. Like Roe, Dred Scott was a case of extravagant judicial overreaching. It lacked any basis in the text, logic, or original understanding of the Constitution. It was a gross usurpation of the power of the people acting through their elected representatives in Congress.

In his First Inaugural Address, with the threat of Southern secession and civil war looming, Lincoln went out of his way to confront the Supreme Court on the issue:

[I]f the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased, to be their own rulers, having, to that extent, practically resigned their Government, into the hands of that eminent tribunal.

True to his words, Lincoln as president refused to treat the Court’s holding in Dred Scott as binding on him or the Congress, and he supported legislation (which was enacted) and took executive actions that directly contravened the holding. (Bizarrely, Jennifer Rubin seems to suggest that Lincoln’s statements regarding Dred Scott were somehow meant to placate the South and make secession less likely. This is the reverse of the truth. They were words that Lincoln, in fidelity to constitutional principles, felt he needed to speak, despite the fact that they would further enflame the South.)

Did Lincoln believe he was acting lawlessly? Did the American people believe he was acting lawlessly? Well, Lincoln certainly had his critics, and they accused him of all sorts of things, including tyranny, but few regarded his rejection of judicial supremacy as constituting lawlessness. That is scarcely surprising, for the Great Emancipator was merely echoing the author of the Declaration of Independence, Thomas Jefferson, who warned that the acceptance of judicial supremacy would place the nation “under the despotism of an oligarchy.” The ascendancy of judicial supremacy had to await the twentieth century; indeed, the Supreme Court itself did not get round to endorsing the idea until 1958 in the case of Cooper v. Aaron (a point noted by Newt Gingrich, who holds a Ph.D. in history, at the Palmetto Forum). Even now there are Supreme Court justices who reject it, precisely because it is inconsistent with the original understanding of the Constitution and the system of government it established.

Ron Paul responded to my question not by embracing judicial supremacy, but by denying that the 14^th Amendment authorizes Congress to legislate to protect the unborn. Interestingly, Paul himself has a perfect pro-life voting record—in Congress. In his view, however, the abortion question is one that the Constitution leaves ultimately to the individual states, not the national government.

In his exchange with me, Congressman Paul argued that reading the 14^th Amendment broadly enough to empower Congress to protect the unborn would be inconsistent with the 10^th Amendment—the constitutional provision reminding us that powers not delegated by the Constitution to the federal government are reserved to the states and the people. But the Constitution, in its 14^th Amendment, plainly does delegate to Congress power to enforce its guarantees of due process and equal protection. Congressman Paul, like the other Republican candidates, believes that the unborn, no less than those human beings at later developmental stages, are members of the human family—in other words, persons—entitled to the same protections as others. And he is right to believe it.

Governor Romney offered a nuanced answer to my question. He declined to commit to proposing legislation that would directly challenge Roe v. Wade, saying that to do so would provoke a constitutional crisis. At the same time, he carefully avoided endorsing judicial supremacy. He addressed the question as a matter of prudence, not of constitutional principle. He did not say, as Rubin later would, that legislation defying Roe would be “lawless.” Indeed, he said that he could not rule out the idea that a time would come when direct defiance of a lawless Supreme Court decision would be justified and necessary. He argued, however, that Roe could be handled by appointing constitutionalist judges who recognize it as a constitutional error and would reverse it. He pledged to appoint such justices.

In my own view, Romney is correct to say that Congress and the president should exercise prudence in deciding whether and, if so, when and how to challenge a lawless and usurpative Supreme Court ruling. In the case of Roe, this is a difficult issue—which is part of why I asked the question. For what it is worth, my own view of the prudence of the matter differs from the governor’s. So, for example, I thought it was right for Congress to enact a prohibition on partial-birth abortion, despite the fact that the Supreme Court had previously struck down such a prohibition as inconsistent with Roe v. Wade. (On the second try, as it happens, the Court—wiser in virtue of the addition of Associate Justice Sam Alito—upheld the prohibition.) In any event, I thought it important for the American people to have an opportunity to assess the ways in which those aspiring to govern think prudentially about how to vindicate core principles when they have been neglected or dishonored.

Like Congressman Paul, Governor Romney took the position that the protection of the unborn is ultimately a state responsibility. So, after the Court reverses Roe v. Wade, as he hopes it will, he would leave the issue in the hands of the states. Of course, that leaves the question of whether Congress should step in, pursuant to the Fourteenth Amendment, to protect the unborn in the event that some states decline to fulfill their responsibility to do so. Unfortunately, there was not time to explore this question with the Governor.


Robert P. George is McCormick Professor of Jurisprudence and Director of the James Madison Program in American Ideals and Institutions at Princeton University. He is founder of the American Principles Project, which sponsored the Palmetto Freedom Forum. This essay is the conclusion to the 2012 Election Symposium. Read all of the entries here:

• Ryan T. Anderson, “Liberty, Justice, and the Common Good:
  Political Principles for 2012 and Beyond” 
   
• O. Carter Snead, “Protect the Weak and Vulnerable:
  The Primacy of the Life Issue”
• Maggie Gallagher, “Defend Marriage: Moms and Dads Matter”
• Samuel Gregg, “Fix America’s Economy:
  Two Principles for Reform”
• Ed Whelan, “Defend Our Laws: Justice Matters”
• Helen Alvaré, “Uphold Conscience Protection:
  Religious Freedom’s Contribution to the American
  Experience and Threats to Its Survival” 
   
• Jennifer Bryson, “Promote Democracy:
  Start at Home but Don’t Stay at Home”
• Yuval Levin, “Heal the Sick and Reduce the Debt:
  The Moral Economy of the Healthcare Debate”
• Jane Robbins, “Empower Parents:
  Return Educational Policy to the States”
• Patrick Trueman, “End Child Pornography:
  Enforce Adult Pornography Laws”
• Laura Lederer, “End Human Trafficking:
  A Contemporary Slavery” 
   
• Robert P. George, “Reflections of a Questioner:
  The Palmetto Freedom Forum Revisited”

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1. Mandate for Abortion and Contraception

The jointly issued “interim final rule” regarding “preventive health services” requires nearly all private health plans to include coverage for “all Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity,” without co-pays or other cost-sharing— no matter whether the insurer, the employer or other plan sponsor, or even the woman herself objects to such coverage on the basis of religious or moral principles. Women may not receive, and insurers, employers and other plan sponsors may not provide, health coverage that is exclusive of such “services.” Never before has the federal government required private health plans to include such coverage.

Among the FDA approved “contraceptive measures” are drugs that, under certain circumstances, terminate the life of a human being at the embryonic stage of development. At least two of the drugs approved by the FDA under the rubric of “contraception” so function in some cases. They are more accurately labeled abortifacients.^[1] As a matter of basic embryology, the life of the human organism begins with the fusion of gametes—egg and sperm. And according to FDA labeling, “Plan B emergency contraception” (levonorgestrel, also known as “the morning-after pill”)—“may inhibit implantation by altering the endometrium.” In other words, Plan B may make it impossible for the newly conceived human being to embed herself into her mother’s uterine lining—a necessary condition of life support for the unborn child. In such cases, the embryo is destroyed prior to implantation.

Another FDA-approved form of “contraception” known as “Ella” (ulipristal, or the “5 day-after pill”), seems to pose an even greater danger to newly-conceived or even newly-implanted embryonic human beings. Ella is a “selective progesterone receptor modulator.” It may function pre-implantation by rendering the endometrium inhospitable to implantation for a newly-conceived embryo (like Plan B); it may also function post-implantation by depriving a living embryo of progesterone or by destroying the maternal component of the placenta. In both of these manners, Ella functions as an early abortifacient. Indeed, the FDA labeling for Ella states that the drug is contraindicated during pregnancy, citing animal studies showing its capacity to terminate a pregnancy. Furthermore, there is nothing to prevent the off-label prescription of Ella (or its purchase, should it become available, like Plan B, for sale over-the-counter) for purposes of terminating a known pregnancy. In short, the new “preventive services” mandate includes coverage for drugs used to kill an unborn child both before and after implantation. Many institutions and individuals (religious and secular) rightly condemn such killing as a grave injustice.

2. The Religious Exemption

The rule includes a very narrow religious exemption. Houses of worship are almost certainly protected, but all other religious ministries and institutions are almost certainly not. The exemption covers only: a “religious employer” that has the “inculcation of religious values” as its purpose; “primarily employs persons who share its religious tenets”; and primarily “serves persons who share its religious tenets.” Further, the employer must qualify as a church organization under two narrow provisions of the tax code. Religious institutions such as colleges and universities, as well as hospitals and charitable institutions that employ and serve the public (versus only co-believers) will be ineligible. Individuals, and religiously affiliated health insurers are also outside of the scope of the exemption.

Others have made the case to HHS that the religious exemption in the proposed regulations is unprecedented in its narrowness. Indeed, it is. Though copied largely from state laws requiring insurance plans to include prescription contraception, the proposed federal mandate is much more sweeping than any comparable state program. When you add to this picture that the new proposal would include “contraceptives” that act as abortifacients, then the radical nature of this looming invasion of religious liberty finally comes into full view.

The U.S. Catholic bishops—sponsors of the nation’s largest private charities—correctly observe that the new mandate “poses an unprecedented threat to individual and institutional religious freedom.” We would add that not even a Catholic parish’s grade school would be exempt from the new mandate to carry insurance that pays for some early abortions. These schools do not always “primarily serve persons who share [the employing religion’s] tenets.” Particularly in urban cores, Catholic schools might enroll a majority of non-Catholic students, often children from the most vulnerable racial and socioeconomic groups. Further, Catholic schools’ “purpose,” as required by the proposed regulation, is not solely “the inculcation of religious values.” That is one purpose of a Catholic school. But the main or “primary” purpose of a Catholic school is the same as that of any other school: providing an education. Other religious institutions, universities in particular, regard it as part of the core of their mission and identity to be and act in the world as a witness and servant to others, all others, regardless of their beliefs, circumstances, or station in life. This almost always results in the employing and serving of persons who do not share the same faith as the institution’s founders. This vision of ministry and identity, under the proposed rule, would disqualify a religious institution from taking advantage of the religious exemption.

Yet throughout American history, religious institutions have been the leading private providers of charitable, educational, and medical services to the poor, always serving those they felt were the most marginalized populations of their day—whether slaves or freed slaves, new immigrants, Native Americans, prisoners, or persons with AIDS. The quality and efficiency of their care, and the compassion with which it has been delivered, are often noted. Regularly, the populations served did not share the faith of the religious institutions who took up their cause

Given their solidarity with the dispossessed, religious leaders of every denomination have, throughout American history, also effectively led a variety of human rights’ movements, including the movements for abolition of slavery, for civil rights, for campaigns to end poverty, and for justice for immigrants, the elderly, those with disability, and the unborn. The presence of religious leaders and religious institutions in the public square—and not behind the walls of their monasteries, churches or homes—is an inescapable aspect of America’s history of progress and prosperity.

The proposed exemption disregards this history by limiting its application to employers who do little (or nothing) but preach to the convinced. This, apparently, is what the authors of the new regulations intended when they adopted the stringent definition of “religious employer,” drafted by the American Civil Liberties Union (ACLU) in connection with California’s contraception mandate. This is the very same ACLU that recently urged HHS to force all Catholic hospitals to perform abortions under the guise of necessary “emergency treatment.” Recent history demonstrates that many religious employers will exit from the marketplace rather than abandon their mission to offer faithful witness in the course of providing service. Those behind the new regulations must be willing to accept this effect, and perhaps even desire it.

This is revolutionary. Never before in American history has any administration—state or federal—been so willing to force religious institutions out of business. In fact, at our founding, and for a long time thereafter, most education, healthcare, and social services were provided by the churches, not by the government. In most cases public authorities assisted the churches by some form of financial or material aid. Even when, after the Civil War, governments began more earnestly to set up their own schools and to provide some other charitable services directly, the norm remained what it had been: a productive partnership between religious and civil providers, with no preference for any religion and with coercion of no one’s conscience, all directed to the achievement of the common good. This was surely the pattern up to and beyond World War II.

In fact, it was not until the 1960s, and then largely under the influence of Supreme Court decisions imbued with a rabid secularism, that this long partnership came in for wholesale criticism. Only then did American elites begin to think of systematically privatizing religion, of shutting up faith within the walls of family, home, and church. Only in the 1960s did significant numbers of people begin to think that everything public—that is, all that is properly in the civil sphere—should be governmental.

With these proposed regulations, the Obama administration would turn back the clock, not only to this discredited intolerance, but beyond, and toward a repudiation of our whole constitutional and political tradition. The administration would restrict the public square to the government to an extent that would be anathema to the founders, and undreamt-of by any important public figure since.

3. Sexual Expression: The Elephant in the Room

It seems more than a little likely that the degree to which this administration is willing to silence or privatize religion is proportionate to its passionate commitment to the population and sexual freedom agendas of one of the administration’s closest allies, the Planned Parenthood Federation of America (“Planned Parenthood”)—the largest single abortion provider in the United States. It is Planned Parenthood that lobbied strenuously for precisely the coercive outcome represented by these proposed regulations. It is Planned Parenthood whose leadership is closely intertwined with the authors of the Institute of Medicine (IOM) report upon which these regulations are based. And it is Planned Parenthood’s former research affiliate, the Guttmacher Institute, that issued several of the studies cited in the IOM report as the basis of its false claims that easier access to birth control has reduced and will reduce our national rates of unintended pregnancies and abortions. It is also Planned Parenthood that—at a time of national economic crisis—has just received new federal dollars to replace the dollars recently taken from them by state legislatures wary of supporting such a prominent abortion provider.

It is well known that the various religious institutions sponsored by the Catholic Church do not provide contraception to their employees or their clients. The Catholic Church in the United States is also the most persistent and powerful voice against the legalization and normalization of abortion in America today. Its witness on these matters earns scorn from those “true believers” who continue to insist that abortion and contraception are the best response to high rates of nonmarital births and abortions, in the teeth of compelling evidence that both policies are associated with even higher rates of nonmarital pregnancies and abortions due to the manner in which they change the “markets” for sex and marriage. (See, Helen M. Alvaré, Abortion, Sexual Markets and the Law, in Stephen Napier, ed., Persons, Moral Worth, and Embryos: A Critical Analysis of Pro-Choice Arguments, 255, 261ff (2011)). Planned Parenthood is preeminent among such “true believers.”

With these new regulations, the administration has placed itself on the side of the Planned Parenthood worldview: an irrational commitment to unrestrained sexual expression, “insured” by easy access to contraception and abortion, no matter the cost to religious freedom or to the well-being of the adults and children involved. These regulations would enclose behind the walls of sanctuaries any and all dissenting religious voices on the matter of sexual restraint and respect for vulnerable human life. Those who today speak common sense on the matter of sexual restraint—backed by current and credible data—are the very persons and groups who would be silenced. Their reasoned arguments, and the witness of their lives, would no longer be available to those who do not already share their faith. Consequently, while religious institutions will suffer should the current “preventive” health care mandate take effect without amendment, there is a group that will arguably suffer even more: those Americans most in need of viewpoints dissenting from this new federal orthodoxy concerning human sexuality and the value of vulnerable human life.


Helen Alvaré is an associate professor at George Mason University School of Law and a senior fellow of the Witherspoon Institute. Gerard V. Bradley is professor of law at the University of Notre Dame Law School. O. Carter Snead is professor of law at University of Notre Dame Law School. They write on behalf of the Witherspoon Institute’s Task Force on Conscience Protection.

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The moral rhetoric used by many bishops to condemn abortion does not seem to fit the criminal penalties that they apparently accept. Further, I find it hard to believe that the bishops would support severe criminal laws commensurate with the moral rhetoric of abortion as an ‘abominable crime.’ When there is a serious disconnect between the gravity of moral condemnation and legal penalty, one or the other should give. Either the rhetoric is too severe or the law is too lenient.

Putting aside the political reality that lessening a criminal penalty may be necessary for getting the legislation to pass, it should be noted that a penalty’s severity is not determined solely by the wrongness of the criminal act, but also by the likely consequences of that wrong for the community. Both the President of the United States and any other person have equal moral and legal rights not to be  killed intentionally, and yet it makes sense to impose more stringent penalties on political assassins than on other killers. The difference in penalty is justified by the President’s leadership in society. Killing a political leader can threaten the democratic order, destabilize the geopolitical balance, and perhaps even prompt a world war. Killing the average citizen does none of those things.

Similarly, in the typical case of murder, someone’s life plans are thwarted, someone’s duties can no longer be discharged, and other people may fear for their lives. Though these factors might shape the penalty imposed on the murderer, they become irrelevant from the perspective of an unborn life that ends in abortion. So, one can hold that abortion and the murder of an adult both intentionally kill an innocent human being without being forced to also hold that abortion and the murder of an adult should be punished in exactly the same way by law.

O’Brien proposes that the law should tolerate abortion: “Grave as the moral fault may be, it [abortion] is not something that can fall under legal restraint.” He is right, of course, that not all grave moral faults should also be illegal: It is seriously wrong to insult one’s mother just for fun; it is seriously wrong willfully and without excuse to neglect one’s spiritual life; it is seriously wrong to waste all of one’s time and excess income merely on self-indulgent whims. None of these moral faults, however, should be matters of criminal law.

By contrast, many other moral faults, such as assault, theft, rape, and murder, should be against the law. One way to draw the line between these two kinds of cases is to consider whether the wrong done is seriously injurious to the bodily or material well-being of another person. Private vices, like wasting all one’s time and money on idle pleasures, do not intentionally harm others. Insulting one’s mother does not seriously harm her in terms of her bodily or material well-being. By contrast, assault, theft, rape, and murder do impose serious bodily and material harms on innocent persons.

If morality and law are related in roughly this way, then abortion—understood here as the intentional killing of a human being prior to birth—is not merely a moral fault that deserves legal tolerance. Rather, fetal killing imposes a serious bodily harm on an innocent human being; the law, in its role of protecting the innocent from serious harms imposed by others without due process of law, should prohibit abortion just as it does other serious harms to the well-being of persons, such as assault, rape, kidnapping, and theft.

O’Brien does not deny the harm of abortion, but he does seek to contextualize it in the intimacy of gestation. The reality of pregnancy—the unique, intimate relationship of the human being in utero and the pregnant woman—changes the ethics of feticide: “The pregnant woman’s womb is not just a geographic location for an independent entity that would be the same if it were located someplace else.” To deny this reality is to reduce the pregnant woman to a “container.”

The intimacy argument, as articulated by O’Brien, begs an important question: Why should independent moral status require independent physical status? We don’t think that one conjoined twin may licitly or legally authorize a third party to kill her conjoined sister in order to terminate their intimate relationship. Indeed, the intimate relationship that always exists in pregnancy is a powerful argument against abortion. Every human fetus is a mammal, and every mammal has a mother. Sound ethical reasoning and just laws hold that human mothers and fathers have serious duties to care for and, above all, not harm their own dependent progeny. So, the intimate relationship that exists in every pregnancy gives rise to the duty of the mother not to harm her own child prior to or after birth, including by prematurely ending the child’s life.  Precisely because an expectant woman is a mother rather than a mere container, she has duties to her dependent unborn child.

Finally, turning to the rare but real case of rape, O’Brien writes, “A woman may have no moral or legal obligation to carry a child conceived by rape—but she may decide to do so. She has no obligation in justice to continue the pregnancy, but she may act from benevolence. Depending on circumstances, benevolence moves into the realm of moral heroism—in Christian terms, into saintliness. As Christians we are all called to saintliness, but saintliness is not a direct moral demand and it certainly is not enforceable by law.”

O’Brien is correct that a woman who continues her pregnancy is a hero. In so doing, she radically contradicts the act of her attacker. He imposed himself on her; she gives of herself for her child. He acted selfishly; she acts benevolently. He diminished her life for his pleasure; she nurtures a life despite the pain. Such a woman is acting in a saintly manner. Does it now follow that since such a woman is heroic, it is morally and legally permissible to have an abortion?  No, it does not.

Unfortunately, evil people can force other, more vulnerable people into situations where the morally permissible but not heroic option is gone, and the only available choice is between moral heroism and moral evil (or illegal activity). A torturer may force a prisoner to choose between heroically keeping silent and telling secrets it would be immoral to reveal. A terrorist can force a hostage to choose between getting killed and helping the terrorist to kill. The rapist who impregnates a woman forces her to choose between enduring an unplanned pregnancy and inflicting life-ending harm on her own innocent child. It takes heroism to choose the former, but it is still wrong to choose the latter.


Christopher Kaczor is Professor of Philosophy at Loyola Marymount University and the author of The Ethics of Abortion: Women’s Rights, Human Life, and the Question of Justice (Routledge 2011).

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Boy, did it succeed.

Sen. Jim DeMint of South Carolina, Congressman Steve King of Iowa, and the founder of the American Principles Project, Princeton Professor Robert George, asked the questions. (Full disclosure: Professor George is also the founding chairman of the National Organization for Marriage, which I co-founded).

Five major GOP candidates stood nakedly on the stage, taking deep questions about constitutional principles—without a podium or a reporter in sight—for 20 minutes.

Strong, new, and newsworthy commitments emerged from almost all of the candidates on social issues, aka “civil rights.”

For the first time, presidential candidates were asked: Does the 14th Amendment’s guarantee of equal protection apply to unborn human beings, and if so, doesn’t Congress have express constitutional authority to enforce this guarantee?

(Herman Cain told me afterward that this was the one question that surprised him.)

Michele Bachmann opened ground on the life issue by saying “yes,” while Mitt Romney showed he understood George’s question by saying he would decline to create a “constitutional crisis” over the issue by confronting the court and instead would pledge to appoint justices who would interpret the Constitution correctly.

Ron Paul retreated to his Maginot Line of “states rights.” Murder, he points out, is a state issue and so should abortion be. Well, yes, pointed out George, unless and until some state decides to deprive a whole class of human beings of the protection of their lives, in which case the 14th Amendment expressly authorizes Congress (not the courts) to step in to remedy this gross violation of civil rights.

Also newsworthy: For the first time, all the major contenders (except Texas Gov. Rick Perry) have pledged to nominate a vice presidential candidate who supports life and marriage. Romney at first left himself some wiggle room, but in the end firmly committed to a pro-life, pro-marriage veep: “These are important enough issues that the person I select would share my views,” he promised.

And for the first time, major presidential candidates committed to protecting people and religious organizations in danger of being excluded from the public square because they do not support gay marriage or gay adoption.

George raised the issue of Catholic and Protestant adoption and foster care agencies in Illinois that are being excluded from participating in helping children because they do not place children with same-sex couples in civil unions.

Romney lived through this kind of thing in Massachusetts, where he was one of the few public voices standing up for Catholic Charities’ rights to help orphaned and abused children—and he was eloquent about the principles involved:

“I believe in religious tolerance and religious liberty,” Romney said. “That means, to me, we are not going to force people of faith to violate their faith in order to practice their professions … I’m not one of those who says get rid of the conscience protections,” thereby forcing people to do things that violate their faith.

Romney went on: “I would say in Massachusetts, about half of adoptions were being placed by Catholic Charities. And they were excluded because they would not place children in homes with same-sex couples. That’s a mistake; we should permit people to apply their faith,” especially when there are many other agencies who can deliver services.

Two people were missing in Columbia: Perry, who was drawn away by the urgent wildfires spreading across Texas, and former Sen. Rick Santorum of Pennsylvania.

As arguably one of the more principled conservatives in the race, I missed hearing what Santorum could have added to the debate over the powers of Congress under the 14th Amendment to guarantee equal protection to unborn human beings.

But thanks to the APP Palmetto Freedom Forum, he, like Michele Bachmann, has an opportunity to pick up the 14th Amendment gauntlet Mitt Romney deemed too hot to handle.

Maggie Gallagher is a co-founder of the National Organization for Marriage and host of The Maggie Report (www.maggiereport.com).

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These questions reflect an attitude that seems to be widely shared in certain circles of our polity. But I would respectfully submit that such questions reflect a badly misguided and inadequate understanding of the moral, cultural, legal, and political dispute of which the pro-life movement is a part.

At bottom, the “life issues”—including especially the conflicts over abortion and embryo-destructive research—involve the deepest and most fundamental public questions for a nation committed to liberty, equality, and justice. That is, the basic question in this context is who counts as a member of the human community entitled to moral concern and the basic protection of the law? Who counts as “one of us”? Equally important is the related question of who decides, and according to what sort of criteria? These are not narrow concerns commanding only the attention of a small number of highly motivated activists at the fringes of our society. Indeed, it is hard to imagine a public matter that is more important than this “question of membership.”

The stakes could not be higher. “Persons” have human rights and are owed the moral respect and forbearance of others. “Nonpersons” live at the mercy of others, and are routinely instrumentalized, manipulated, or even destroyed in the name of the individual or collective interests of those who are indisputably persons. We, as a nation, must get this question of membership right. And it is imperative for the president of the United States to do so.

The pro-life movement offers the only answer to the question of “who counts” that is consistent with America’s grounding norms of equality and justice. Accordingly, it is of paramount importance that the president of the United States be pro-life. My aim here is to show why this is so by giving a compressed account of the pro-life position (including the moral anthropology and foundational grounding goods in which it is nested), unpacking some of its key concrete entailments for law and politics, and explaining how the office of the U.S. presidency is uniquely situated to promote justice (or its opposite) in this profound context.

The Pro-Life Position

The central animating claim of the pro-life movement is that each human being is intrinsically equal in basic dignity simply because of who he or she is as a member of the human family. Each human being is valuable and irreplaceable, regardless of her age, size, location, race, sex, usefulness (or burdensomeness) to others, her possession or lack of certain favored physical or mental capacities, or the worth assigned to her by others. It is worth pausing for a moment to focus on the radical and distinctive nature of this claim. The moral status of each human being is, according to this view, unconditional and noncontingent. It does not wax and wane according to the judgment or interests of others, in light of physical, mental, or circumstantial criteria that such others might establish.

Moreover, the pro-life principle encompasses all living human beings at every stage of biological development. This stands in stark contrast to competing, more exclusionary approaches to defining “personhood,” which assign (rather than recognize) moral worth for a subset of the human population according to predetermined criteria established by others. For example, some influential thinkers have variously proposed that certain human beings (e.g., those without currently exercisable capacities for conceptual thought, or those who are radically, if temporarily, dependent upon others for their continued biological existence) should not be considered “persons” for moral or legal purposes. The pro-life movement rejects the notion that there are pre-personal (e.g., embryos and fetuses) or post-personal (e.g., cognitively disabled patients) human beings. Indeed, the pro-life movement sees such competing approaches as inverting our best moral traditions, effectively privileging the claims of the strong over those of the weak. The pro-life movement believes that these frameworks for contingent personhood produce monstrous practical results (including, for example, a sliding scale of moral and legal standing for people based on their cognitive ability, usefulness, strength, and so on). Instead, the pro-life movement takes its bearings from Hans Jonas’s injunction that “utter helplessness demands utter protection.”

Why does the pro-life movement adopt such a capacious conception of “persons”? Much could be said here, but, for present purposes, it is sufficient to note that the judgment that all human beings should be included within the community of persons follows from two premises: one we know from modern science, and the other is a familiar axiom that anchors the American system of government. Modern embryology confirms that the life of the human organism begins with the union of gametes (sperm and egg) of his or her parents. Though it must be noted that there appear to be, in principle if not yet in practice, novel alternative ways to generate a human organism (e.g., somatic cell nuclear transfer, or “human cloning”). From conception (or its functional equivalent), there emerges a complete, living, self-directing, integrated, whole individual member of the human species, who, given the proper environment, will (if all goes well) move herself along the trajectory of human biological development from embryo, to fetus, to neonate, to child, to adolescent, to adult. Every living person on earth was once an embryo. As a biological matter, the embryo is indisputably “one of us.”

The biological status of the human organism does not, however, settle the question of its moral status. For this judgment, the pro-life movement draws upon the notion of human equality as a principle of classical liberalism underlying the nation’s founding. The pro-life movement holds that the only coherent (non-self-destroying) understanding of human equality is one that encompasses all human beings, without discrimination on the basis of accidental characteristics such as age, size, condition of dependency or vulnerability, circumstances, or the esteem of others. It is anathema to the norm of equality to permit a part of the polity to set exclusionary criteria that disqualify other living human beings from moral regard and the most basic forms of legal protection. True respect for equality dictates that if anyone counts, everyone must count. Conversely, to treat any human being as sub-personal is to commit a grave injustice.

Concrete Contexts: Abortion and Embryo-Destructive Research

The pro-life position entails concrete responses across many political and legal contexts, and applies to every aspect of the life of the individual and the community. To take but a few examples, respect for the intrinsic value of every human being should shape individual behavior as well as law and public policy in such diverse areas as economics, healthcare, immigration, criminal justice, and foreign policy. But two public questions in particular warrant special attention for present purposes: abortion and embryo-destructive research.

Why focus on these issues? First, they are unique in that the fundamental public questions in dispute squarely implicate the “problem of membership.” Vexed as they may be, few other contemporary policy disagreements involve the claim that certain members of the human community are “nonpersons” and thus not entitled to basic moral concern and fundamental human rights. Second, the stakes in the abortion and embryo-destructive research context are extraordinarily high. It is estimated that roughly 1.3 million abortions are performed in the United States annually—nearly 3,600 abortions each day. To pursue the aspirations of embryonic stem cell researchers (e.g., to create a bank of immunocompatible stem-cell lines capable of modeling every disease or disability of interest), millions of living human embryos must be created and destroyed. Abortion and embryo-destructive research involve the routine, legally sanctioned (in some cases government-funded) taking of human life on a breathtaking scale. If one holds that every human life is inviolable and worthy of respect (as the pro-life movement correctly does), this is nothing short of a human catastrophe on an epic scale.

It would require many pages to responsibly engage all of the various arguments in favor of abortion and embryo destructive research. For present purposes, it is sufficient to note that none of the arguments on offer take seriously the claim of the unborn to basic human equality (though some purport to do so). For example, the indispensible lynchpin of the “women’s equality” argument for abortion rights (increasingly espoused by many influential public figures and commentators) is the permanent entrenchment of legal inequality for the developmentally immature and radically dependent unborn child. Similarly, in the context of embryonic stem cell research, some have argued that a compromise solution is to promote the use and destruction of only those embryos from IVF clinics that will be destroyed in any event. But this proposal likewise violates basic principles of human equality. No human being should be treated as raw material to be intentionally and directly exploited and destroyed for biomedical research simply because someone else (who created these human beings for his or her own reasons in the first instance) has subsequently made the decision that their lives were no longer useful and thus should be terminated. That both the “equality” argument for abortion and the “spare embryo” argument are roundly rejected when applied to analogous contexts involving post-natal human beings (e.g., involving a newborn baby whose existence impedes her parents’ full participation in economic and social life as they see fit, or a death row inmate who would be a valuable human subject in an important experiment that requires his intentional killing) is strong evidence that they are, in effect, deeply inegalitarian.

It must be underscored that the respect for the intrinsic equality of all human beings includes, of course, the pregnant woman in crisis. The pro-life position mandates that she be treated with dignity and respect, and that all possible efforts be made to help her to bear her burden, financially and emotionally, both during and after the pregnancy. It is for this reason that the pro-life movement has been in the vanguard of providing resources as well as creating and sustaining institutions—crisis pregnancy centers, maternal group homes, and the like—for precisely this purpose. This concern for women facing crisis pregnancies may also explain why all contemporary proposed laws banning abortion provide the mother with immunity from prosecution.

It must also be said that the pro-life movement is, by its very terms, committed to saving lives and alleviating human suffering. It is thus firmly committed to ethical biomedical research, especially those forms of stem cell research that do not involve or incentivize the use and destruction of human beings at the embryonic stage of development. The good news is that there are many promising avenues of inquiry in this regard, including some that seem to be bearing fruit already (e.g., iPS cell research and various forms of adult stem cell research).

Why the Presidency Matters

Some commentators, who grant that every human life is intrinsically valuable and that abortion and embryo-destructive research are thus gravely unjust forms of killing, nevertheless argue that these are primarily cultural problems and the law should not bring its coercive power to bear on such “moral” questions. We should not “legislate” morality here; a fortiori, the president should stay out of this domain. While perhaps superficially appealing—especially to those who are skeptical of governmental intervention and oversight—this argument is unsound.

To be sure, the question of when government should directly intervene in human affairs is much contested and requires prudential judgment. Even the most devoted libertarian, however, would agree that it is a legitimate function of government to protect human beings threatened by private violence on a massive scale. Such violence directed against human beings at the earliest stages of development—whether in the form of abortion or embryo-destructive research—is not primarily a matter of private morality. It is first and foremost a matter of injustice, and in the face of such injustice, the law cannot remain silent. Moreover, for better or worse, law not only reflects culture, it shapes it. Thus, if one is serious about changing cultural attitudes on matters of injustice, the pedagogical function of the law is an indispensable tool toward this end.

Some argue, however, that be that as it may, the American presidency has only a minimal and insignificant impact in this legal domain. This is also mistaken. Even though the president is constrained to act only pursuant to powers enumerated in the Constitution, and must respect those powers exclusively held by Congress, the federal courts, and the several states, he or she has an extraordinary array of tools available that are directly applicable to the contexts of abortion and embryo-destructive research.

The tools at the president’s disposal include acting unilaterally through executive orders and memoranda (pursuant, of course, to legal authority conferred by the Constitution or delegated by statute); operating by extension through the work of administrative agencies and other advisory bodies (especially those through which relevant federal funds appropriated by Congress are allocated); setting foreign policy (particularly in the negotiation of international instruments); intervening in the legislative process to promote, shape, or block relevant bills; using the appointments power to shape the character of the federal judiciary (most notably the Supreme Court) as well as key administrative agencies (e.g., HHS, DOJ, FDA, CDC, NIH, and so on); and appealing to the unparalleled moral and pedagogical authority of the American presidency to educate and persuade the nation and the world that every life matters.

The Power of the President in Concrete Cases: Abortion and Embryo-Destructive Research

To illustrate the great extent to which the president can promote or impede the respect for (and protection of) human life in the abortion and embryo-research context, it is perhaps most useful to contrast the record of our current president with that of his predecessor. This comparison offers a clear road map of the authority enjoyed by the president in this regard, and how it might be wielded. In short, President Bush adopted an aggressive and unabashed pro-life stance with respect to the powers of his office; President Obama has done the precise opposite.

The Bush Record

President Bush’s policy for stem cell research prohibited the use of federal funds to encourage the future destruction of human embryos and instead provided concrete incentives (in the form of millions of dollars) for researchers to find alternative means of pluripotent cells (including the revolutionary iPS cells). He vetoed congressional efforts to undo the stem cell funding policy. He supported a ban on all forms of human cloning at home and abroad. He signed a ban on the use of tissue harvested from fetuses conceived and gestated for research. His Department of Health and Human Services promoted research on alternative sources of pluripotent cells.

He worked to reduce the number of abortions in this country and abroad by restricting the manner in which abortion is performed (through, for example, signing the ban on partial birth abortion), restricting funding of NGOs who promote or provide abortions overseas, and supporting women with unplanned pregnancies (by seeking funding for maternity group homes and crisis pregnancy centers). He promoted and signed the Unborn Victims of Violence Act to symbolically and actually offer protection to human beings in utero who are harmed in the commission of federal crimes. He promoted and signed the Born Alive Infants Protection Act to ensure that children surviving abortions receive emergency medical assistance. His Department of Health and Human Services adopted regulations to ensure that physicians and other healthcare providers can refuse on conscience grounds to perform or refer for abortions. He made it clear to the leaders of Congress (in the form of a formal letter) that he would veto any efforts to undermine these protections for unborn children.

He appointed men and women to key executive posts who shared his view of the equal dignity of human beings born and unborn. He also appointed judges, and most importantly, justices to the United States Supreme Court whose interpretation of the Constitution does not include an unenumerated right to abortion that prevents any and all limits by the state or federal government.

Finally, his delegations to intergovernmental fora opposed all efforts to establish the freedom to choose abortion as an international human right. And he made use of the bully pulpit to shape the consciences of the American people and the people of the world in accordance with this capacious understanding of human equality.

The Obama Record

President Obama has pursued a diametrically opposed approach. In his first week in office, the President restored funding to organizations that promote and perform abortions overseas. Later that same year, he reversed his predecessor’s executive order and adopted for the first time in American history a policy of federal funding meant to create incentives for research involving the use and destruction of human embryos. Inexplicably, the President has also rescinded his predecessor’s executive order supporting promising alternative avenues of research that do not require the use and destruction of embryos. He has called upon Congress to further promote embryo-destructive research with permanent statutory authority.

On abortion, he supported and signed into law a healthcare reform bill that subsidizes plans that provide abortions. He signed into law a bill that authorized federal funding of abortion with taxpayer dollars in the District of Columbia. He has rescinded the previous administration’s federal regulations that protect physicians and other healthcare providers from being compelled to participate in abortions in violation of their consciences. He replaced these safeguards with far narrower and more ambiguously defined protections.

He has appointed numerous individuals to key executive branch positions and to the Supreme Court who passionately advocate for abortion rights and embryo-destructive research. For example, he (unsuccessfully) tried to appoint Professor Dawn Johnsen as the chief advisor on constitutional questions to the Justice Department. Professor Johnsen was the former General Counsel of the National Abortion Rights Action League (NARAL)—the most aggressive abortion rights advocacy organization in the world. In a brief to the U.S. Supreme Court, Professor Johnsen compared restrictions on abortion to slavery. His other high-level appointees include numerous officials closely associated abortion advocacy organizations such as Planned Parenthood and Emily’s List. Obama’s science “czar,” John Holdren, has writen approvingly of compulsory regulation of family size and his book discussed various means to this end, including forced sterilization and abortion. His Secretary of State, Hillary Clinton, has stated that she believes abortion is an international human right, and she has committed the U.S. government to promoting this view abroad. His Supreme Court justices will surely further entrench and expand the right to abortion if given the opportunity. It bears noting that with President Obama’s new appointments to the Court, there are now four justices who would move the law in an even more radical direction on abortion, as difficult as this might be to imagine, given the extreme permissiveness of the current regime.

More recently, his administration has threatened to withhold Medicaid funds from those states that have passed laws denying tax dollars to healthcare entities that also provide abortions (such as Planned Parenthood). He has similarly been steadfast—even at the risk of shutting down the entire federal government—in resisting any efforts to deny Planned Parenthood U.S. taxpayer dollars.

In short, President Obama has, at every opportunity, aggressively promoted policies that inexorably and materially increase the incidence of the use and destruction of human beings at the embryonic and fetal stages of development. Indeed, many of his policies are clearly designed to achieve this precise result.

What the Next President Needs to Do

As a general matter, anyone who aspires to the presidency must resolve to use the powers of that office to work towards a day in which all people—born and unborn—are welcomed into life and protected by the law. In addition to reversing President Obama’s executive actions and reinstating those of his predecessor noted above, here are some specific action items for the next president:

Abortion

• Appoint only federal judges and Justices whose judicial approach precludes the invention of “rights” that are neither in the text of the Constitution itself nor objectively, deeply rooted in this nation’s history and traditions. This is imperative, given that Roe v. Wade and its progeny (currently supported by a bare majority (5–4) of Justices on the U.S. Supreme Court) essentially prevents the political branches at any level from directly restricting abortion as such.
• Ensure the enforcement of extant laws protecting unborn children, such as the federal Partial Birth Abortion Act, the Born Alive Infants Protection Act (both of which appear to have been violated by Kermit Gosnell in his horrific Philadelphia “clinic”), the Unborn Victims of Violence Act, and the like.
• Support and sign into law measures that eliminate direct or indirect taxpayer support for abortion and protect the conscience of pro-life individuals and institutions, such as:

The “No Taxpayer Funding of Abortion Act” (which establishes a federal-wide ban on funding of abortion, and provides robust conscience protections).

The Pence Amendment to H.R. 1 (barring Planned Parenthood from the receipt of federal funds).

The “Respect for Rights of Conscience Act” (preventing mandates under the new health reform law from undermining rights of conscience).

• Appoint only those individuals to key executive branch posts (e.g., Attorney General, Secretary of HHS, Secretary of State, Commissioner of the FDA, Director of NIH, etc.) who are willing and able to ensure that the agencies in their charge are working to protect and promote respect for all human lives.
• Protect and promote respect for life before intergovernmental bodies such as the United Nations and UNESCO. Make clear that abortion is not a human right, but rather a grave violation of human rights.
• Convene an interdisciplinary White House advisory committee to explore how the federal government can effectively support women facing crisis pregnancies (and thus reduce the abortion rate) in a manner consistent with respect of the equal dignity of all human beings.
• Formulate a comprehensive plan to promote adoption in a manner that offers maximal support for both birth parents and adoptive parents.

Embryo Destructive Research

• Promote and sign into law a federal ban on all creation of human embryos solely for the sake of research.
• Promote and sign into law a measure that permanently proscribes the buying, selling, or patenting of human embryos.
• Adopt a stem cell funding policy that supports only those forms of stem cell research that do not require, involve, depend on, or incentivize the use and destruction of embryos.
• Declare that HHS construes the Dickey Amendment to forbid federal funding of research that depends on or creates incentives for embryo destruction.
• Convene an interdisciplinary White House advisory committee to examine the problem of the creation and storage of hundreds of thousands of living human embryos (in the context of IVF) whose parents no longer want or need them.

Conclusion

The “life issues” are not merely the ancillary concerns of a small but active fringe of our political landscape. Rather, they involve essential questions of membership—of “who counts” for purposes of moral concern and basic legal protections—at the heart of our nation’s commitment to justice and equality for all, including the most vulnerable. These are questions that we cannot afford to ignore or answer wrongly. Literally millions of lives hang in the balance. Regarding the unborn child, the only path that comports with our best moral traditions and our nation’s founding principles is to provide equal justice for all, even when it would seem more useful or convenient to do otherwise. In this regard, the office of the presidency offers a unique power to promote justice or do great harm. The man or woman who holds that office must have the wisdom, courage, and, yes, the empathy to use his or her powers to protect the least among us to the extent that the law allows.

O. Carter Snead is professor of law at University of Notre Dame Law School. This essay is part of the 2012 Election Symposium. Read all of the entries here:

• Ryan T. Anderson, “Liberty, Justice, and the Common Good:
  Political Principles for 2012 and Beyond”
   
• O. Carter Snead, “Protect the Weak and Vulnerable:
  The Primacy of the Life Issue”
• Maggie Gallagher, “Defend Marriage: Moms and Dads Matter”
• Samuel Gregg, “Fix America’s Economy:
  Two Principles for Reform”
• Ed Whelan, “Defend Our Laws: Justice Matters”
• Helen Alvaré, “Uphold Conscience Protection:
  Religious Freedom’s Contribution to the American
  Experience and Threats to its Survival”
   
• Jennifer Bryson, “Promote Democracy:
  Start at Home but Don’t Stay at Home”
• Yuval Levin, “Heal the Sick and Reduce the Debt:
  The Moral Economy of the Healthcare Debate”
• Jane Robbins, “Empower Parents:
  Return Educational Policy to the States”
• Patrick Trueman, “End Child Pornography:
  Enforce Adult Pornography Laws”
• Laura Lederer, “End Human Trafficking:
  A Contemporary Slavery”
   
• Robert P. George, “Reflections of a Questioner:
  The Palmetto Freedom Forum Revisited”

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Copyright 2011 the Witherspoon Institute. All rights reserved.

Yet, despite the gains pro-lifers have made in this regard, pro-choice feminists still adhere to another set of arguments entirely, arguments that resound in a popular slogan: “get your hands off my body.” In this view, because women, rather than men, get pregnant, a pregnancy forced by abortion restrictions signifies a basic gender inequality that no practical, pro-life social supports can alleviate, no matter what the medical data (which they still consider questionable) say about abortion’s aftermath. Indeed, “forced” pregnancy, for the most radical of pro-choice scholars and jurists, amounts to something akin to military conscription. As Justice Harry Blackmun wrote in his opinion in Planned Parenthood v. Casey nearly twenty years ago, “[Abortion restrictions] conscript women’s bodies into [the service of the State], forcing women to continue their pregnancies, suffer the pains of childbirth, and … provide years of material care.”

The philosophical argument underlying pro-choice appeals to bodily autonomy is not a new one; indeed, the original version cast by moral philosopher Judith Jarvis Thomson is old enough to commemorate its 40^th anniversary this year. Forty years later, the autonomy argument is still wildly popular among supporters of abortion and especially among pro-choice academics.

Thomson’s 1971 philosophical argument is utterly unpersuasive for the ardent pro-lifer who upholds the embodied uniqueness of women, but it resonates profoundly with pro-choicers. Today her argument is especially weighty for abortion advocates, because she makes no effort to dabble in ineffectual claims that the fetus is anything but a human being, or even that such a human being somehow lacks the status of a human person. These claims are becoming less and less tenable, even if some pro-choicers continue to cling to them for whatever remaining rhetorical help such claims give their cause. Thomson grants the personhood of the fetus and, as many readers will remember, depicts abortion as something akin to self-defense. The dependent fetus is imaginatively analogized to a famous unconscious violinist who is kept alive by being attached, for nine months, to an innocent bystander’s circulatory system. The act of abortion thus detaches the bodily invader from the unwilling host.

This analogy for bodily autonomy has taken a variety of forms over the years, and each has been engaged philosophically by the greatest of pro-life minds. Of late, however, pro-choice feminist legal literature that is more critical of straightforward autonomy arguments has morphed the analogy into something more nuanced. The argument concedes the bond that a pregnant woman often experiences with her developing unborn child, but maintains that a woman should not be forced to enter into a “relationship of nurture” with the fetus nonconsensually. Another version concedes the responsibility mothers feel toward both their born and unborn children, and portrays abortion as a “parenting decision” that dutiful mothers elect when they find themselves unable to care for another (or a disabled) child. For those scholars who embrace a sort of “care” or “relational” feminism, the fetus is no longer an aggressor, but one with whom an emotional relationship is likely to develop, even before birth. Thus, the enormous emotional strain of putting an unborn child up for adoption, and the various physical and psychological risks for a pregnant woman, should entail that we recognize her prerogative to consent to this “relationship of nurture.”

The common-law argument that underlies these Thomson and Thomsonesque analogies is that one need not play the “good Samaritan” to another: a bystander need not keep a famous violinist alive with his own body; a passerby need not rescue a drowning stranger; a parent need not donate bone marrow to his dying adult child; a woman need not continue an unwanted pregnancy. All of these tasks pose risks and demands of various and often unforeseen levels on the autonomous individual. The law, thus, does not require anyone to undertake these risks.

There is an element of truth to these analogies concerning pregnancy. Pregnancy is difficult, and it can often be burdensome. For some women, it poses enormous risks and demands. For almost all women, it can be a trial at times, and for some, that trial lasts all nine months. But, as many over the last forty years have argued, pregnancy is most unlike any of these other situations. The affirmative and destructive act of abortion cannot seriously be analogized to failure to rescue a stranger, nor can it be honestly described as the mere failure to continue a pregnancy.

Even if “failure to rescue” were an accurate approximation to abortion, special affirmative duties arise, both morally and legally, when the drowning individual is not a stranger, but is one’s own dependent child. One does not play the “good Samaritan” but the responsible and law-abiding parent when she rescues her drowning child from a pool of water. In pregnancy, the dependency and vulnerability of the nascent, developing child are even more evident, and the parent’s affirmative duty of care is arguably more obvious. For not only is the unborn child dependent and vulnerable, but her mere existence (as a dependent and vulnerable developing child) is due, at least biologically, to the life-giving act in which her parents engaged.

This reasoning does not cede philosophical ground to the contractarian view (that underlies pro-choice rhetoric) by arguing that because a woman consented to sex, she consents to pregnancy. Rather, the argument, based in centuries-old common law, maintains that when an individual puts another individual in a position of vulnerability (“in harm’s way”) and has the ability to offer help and assistance, the law requires that individual to do so. As philosopher Francis Beckwith has written, “The parents of the fetus are responsible for assisting it because they are in fact responsible for bringing into existence a being that is needy by nature and thus are responsible for its neediness.” Thus, parents share an affirmative legal duty toward their unborn child who, in his vulnerability, is utterly dependent upon their help and assistance—even more so than their born child, for whom other competent adults could care.

Three important implications flow from this response to the bodily autonomy argument. The first concerns the proper way to conceive of the relationship between the pregnant mother and her unborn child in accord with this affirmative duty of care; the second examines the paternal duties neglected by both sides of the abortion debate; the third indicates the necessary—pro-woman—course of action.

Like the aforementioned “relational” feminists, Justice Kennedy, in the 2007 Gonzales v. Carhart decision, noted “the bond of love a mother has for her child.” Pro-lifers would do well to make more of the mother-child relationship Kennedy affirms—an acknowledgment that legal scholar Helen Alvaré suggests could begin the shift of abortion law into the province of family law. Yet they should not do so precisely the way that Kennedy does in Gonzales, nor the way legislators tried to do in South Dakota’s 2006 abortion ban. Both Justice Kennedy and South Dakota lawmakers attempted to connect causally the “natural” bond of love between mother and child and the emotional devastation abortion has caused many women, whose stories of regret and suffering were offered in amicus briefs and legislative testimony, respectively. Justice Ginsburg in her Gonzales dissent, and other academic pro-choicers in their writings, criticized this causal link, not only because Kennedy and the South Dakotans were unable to point to any “reliable data to measure the phenomenon,” but because such a presumption of the mother’s “bond of love” is, in Ginsburg’s words, hardly “self-evident.” Ginsburg cannot be that far off: opting for abortion certainly does not indicate an evident “bond of love” between mother and unborn child—even if the aforementioned “relational” feminists have admitted to experiencing it.

Such a natural—felt—bond of love of mother for child (born or unborn) may in fact be outside the experience of the more hard-hitting professional feminists who drive opinion in the pro-choice movement. Though one hopes the psychological burdens that post-abortive women often face will become more widely recognized, it would be to our advantage, when shaping legislative proposals or making legal arguments, to focus not on the subjective, experienced “bond” or “feelings” of love, which are so easily denied by those with a penchant for the autonomy argument, but on the objective relationship of dependency that exists between pregnant mother and vulnerable unborn child, and the moral and legal duties that follow. Once pro-choicers have conceded the humanity of the fetus, which all but the most obtuse of pro-choicers have done, it can no longer be denied that the unborn human being is very much a child, that is, a human being who shares his mother’s and father’s DNA, as a product of their life-giving sexual act. Establishing constitutional personhood, while certainly a laudable goal, is legally unnecessary: while “person” may indicate “rights-bearing,” “child” signifies one to whom certain parental duties are owed. Parallels between the legally binding duties of parents to their unborn children and their duties to their born children follow from this view of the unborn.

But the relationship of dependency that an unborn child has with her pregnant mother does not translate into maternal duties alone. Whereas pro-choice legal efforts encourage women to imitate male reproductive irresponsibility by abandoning the child brought forth by their sexual escapades, pro-lifers must demand that the law also obligate men who sire children. For the pregnant woman surely did not bring about the vulnerable, dependent new human being solely by her own doing, and though her body is uniquely capable of gestating developing human life, she does not carry sole responsibility to care for that life. Feminists are right to argue that pregnancy disproportionately “burdens” women and it is high time pro-lifers thought more about what paternal responsibility for unborn children might mean.

Acknowledging parental duty for unborn children also gives an added punch to pro-woman arguments in favor of chastity. Sex does not always make babies, but neither does it always make babies exactly according to our plans. This biological reality need not tread upon questions of the morality of contraception. Rather, the unassailable fact that contraception fails, and fails often, is enough to underscore the reality that sex is a serious enterprise, to be engaged in only by those prepared to become mothers and fathers. Concomitant with this reality is the gendered fact that the consequences of sex are far more serious and immediate for women than for men—even if abortion is an open option. The feminist hope that liberalized abortion would usher in a new era in which women would enjoy sexual and reproductive autonomy akin to that enjoyed by men is simply illusory. While abortion has freed men further from the consequences of the potentially procreative sexual act, women must act affirmatively—and destructively—if they are to imitate male reproductive autonomy. Indeed, coupled with the documented harm of abortion to women, a whole cottage industry of scholarship has arisen of late to document the anti-woman reality of non-marital sex. It’s time for women to recognize that self-respect requires that they disentangle themselves from the culture’s current male-centered mode of sexuality. Just as the men followed us into the woods, they’ll follow us out.

One cannot know with certainty whether the new pro-woman strategies adopted by pro-lifers can take credit for the change in public sentiment about abortion over the last decade. Surely 3D imaging of one’s unborn child and the educative impact of the partial-birth and live-birth legislation and litigation have also had their consequences. Perhaps we might say that a focus on the multifaceted truths of abortion is working, when they are presented incrementally and non-polemically, in all their objectivity: abortion snuffs out the life of a nascent human being; abortion poses serious risks to women’s well-being and future reproductive health; abortion shifts the costs of sex and pregnancy onto women alone, freeing men to abdicate their paternal responsibilities; and abortion rejects the moral and legal duties that mothers and fathers have toward their most vulnerable and dependent children. Pro-choicers are correct to worry that abortion restrictions would impact the ability of mothers (and fathers) to design their own lives autonomously. Dependent and vulnerable children do that.


Erika Bachiochi is an independent scholar whose most recent book, Women, Sex & the Church: A Case for Catholic Teaching, was published in 2010. This essay was inspired by themes in parts III & IV of her recent article “Embodied Equality: Debunking Equal Protection Arguments for Abortion Rights” (Harvard Journal of Law & Public Policy, Summer, 2011), now available online.

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On Friday, June 24, 2011, Planned Parenthood won a first-round victory in an Indiana federal district court, temporarily halting the implementation of the law. Indiana has appealed this decision, but more lawsuits, including one in Kansas, are already appearing. One important argument that Planned Parenthood is making in its defense centers around the claim that Planned Parenthood provides non-abortive healthcare. Thus Planned Parenthood CEO Cecile Richards claimed that Indiana’s law would “take away health care from thousands of women in Indiana.” However, phone calls made by Live Action volunteers to sixteen Planned Parenthood clinics in Indiana revealed that all of the clinics admitted that women on Medicaid could receive healthcare elsewhere.

But why all the fuss from these state legislatures? Planned Parenthood defines itself as a protector of women’s health and “rights.” Furthermore, public perception of Planned Parenthood tends to be favorable; recent polls by CNN show that many Americans do not currently support defunding the organization.

In part, the abortion business of Planned Parenthood—the nation’s largest abortion provider—is what the “fuss” is about. States simply do not want to subsidize the abortion industry with taxpayer dollars. This is certainly true in Indiana, where the funding restriction does not target Planned Parenthood by name, but prohibits the state from contracting with abortion providers.

An in-depth investigation of Planned Parenthood by Americans United for Life, the nation’s first pro-life public-interest law and policy organization (where I serve as Senior Vice President and Senior Counsel), demonstrates that abortion is central to Planned Parenthood’s business. The AUL Report, however, uncovers much, much more than just the importance of abortion to Planned Parenthood operations. It reveals Planned Parenthood practices that are irresponsible, dangerous, and fly in the face of the organization’s claims of dedication to women in need of medical services.

AUL’s Report pulls together in one place, for the first time, a litany of scandals associated with Planned Parenthood, demonstrating the breadth and persistance of the organization’s abuses. The Report shows that the “fuss” about Planned Parenthood is currently, if anything, about far too little. What follows in this article are just a few examples of the many reasons, all documented by the Report, why state—and federal—legislatures are (and all Americans should be) rethinking their dedication to Planned Parenthood.

Planned Parenthood and its affiliates receive over $363 million dollars in government grants and contracts. Medicaid, a program administered by the states and jointly funded by the federal government, contributes a large portion of these funds, and audit reports reveal that Planned Parenthood affiliates have overbilled Medicaid in at least New Jersey, California, New York, and Washington. In California, for example, reports show that one Planned Parenthood affiliate in one fiscal year overbilled the government by over $5 million. In this time of fiscal crisis, Planned Parenthood’s failed stewardship of state and federal taxpayer dollars is appalling.

In addition to defrauding the government and the American taxpayer, it is questionable whether Planned Parenthood abides by state and federal laws restricting abortion funding. Abby Johnson, a former director at a Planned Parenthood clinic in Texas, has stated, “as clinic director, I saw how money received by Planned Parenthood affiliate clinics all went into one pot at the end of the day—it isn’t divvied up and directed to specific services.” If so, this procedure is a violation of federal laws, such as the Hyde Amendment, that specifically prohibit the use of taxpayer dollars for abortion.

More sinister than its misuse of public funding is how little Planned Parenthood cares for the safety of the young women who seek its medical care. The statistics on sexual abuse of girls under the age of eighteen in the United States are staggering. 75 percent of girls under fourteen who have engaged in sexual activity report having had a forced sexual experience; many of the men who engage in these abusive sexual relationships and father children are significantly older.

Even Planned Parenthood acknowledges in its “Fact Sheet” on “Reducing Teenage Pregnancy” that among women younger than 18, the pregnancy rate among those with a partner who is six or more years older is 3.7 times as high as the rate among those whose partner is no more than two years older. To help protect these young girls, all fifty states and the federal government have enacted mandatory reporting laws. These laws require that certain organizations, such as hospitals, report suspected cases of abuse or rape. Thirty-seven states also have parental involvement laws in place that involve the parents in a minor’s decisions regarding abortion.

Given the statistics, most parents—indeed, most people—would expect that an organization like Planned Parenthood, which prides itself on the quality of its care, would be especially protective of young pregnant girls. However, the opposite is the case. In Arizona, Ohio, and Alabama, legal action has been initiated against Planned Parenthood affiliates for failing to report sexual abuse or to obey abortion laws. Instead of providing protection for young victims of abuse, Planned Parenthood’s practices—detailed in the AUL Report—enable the abusers to cover their crimes. For example, in Arizona, Planned Parenthood of Central and Northern Arizona was found liable after it failed to report the sexual abuse of a 13-year-old girl who was raped by her 23-year-old foster brother.

Planned Parenthood even appears willing to protect men who traffic girls as young as fourteen, allowing the continued exploitation of these children for commercial sex. Planned Parenthood clinic workers have been caught telling clients, claiming to be engaged in “sex work,” how to avoid reporting and parental consent laws. It seems that Planned Parenthood is satisfied with providing cheap abortions and contraceptives to young victims of the sex trade and then simply sending these girls back into the arms of their abusers and pimps rather than reporting their terrible situation.

Planned Parenthood also refuses to abide by Food and Drug Administration standards, seeming to put its bottom line above women’s health and safety. For example, Mifeprex/Mifepristone, a drug that has been approved in combination with Misoprostol (the RU-486 regimen) as an abortion-inducing drug, had been authorized by the FDA for use only up to the 49^th day of pregnancy. After 49 days, there is a substantially increased risk of the drug’s failure and complications for a woman’s health and safety. However, Planned Parenthood prescribes the abortion drug through the 63^rd day of pregnancy, two weeks later than approved by the FDA.

What is the consequence of this off-label use? On top of an increase in serious health risks (such as hemorrhaging), RU-486 has a 23 percent failure rate at this stage in pregnancy. By providing women with a drug that fails nearly one in four times, Planned Parenthood can get women to pay for a second abortion. This second abortion must be performed surgically and is therefore more expensive. Planned Parenthood compounds its already hazardous use of RU-486 by distributing the drug through “telemedicine.” Telemedicine entails an “online” visit with a doctor before RU-468 is prescribed, rather than the in-person office visits required by the FDA. This violates FDA protocol and circumvents state laws designed to protect women’s health.

Not only has Planned Parenthood violated existing laws protecting women, it has stood against lawmakers’ attempts to implement new and more effective safety measures. In 2001, the Governor of Texas, Rick Perry, signed legislation that strengthened mandatory reporting laws for sexual abuse of a woman under seventeen and Planned Parenthood vigorously opposed its implementation. In Illinois in 2011, Planned Parenthood lobbied against legislation to broaden a sexual abuse reporting law to require almost all employees and volunteers of organizations that provide or refer for reproductive healthcare or sex education to report child abuse or suspected sexual abuse. They also have opposed laws in Nebraska increasing parental involvement by requiring notification or consent and bills in Illinois offering a pregnant woman who is seeking an abortion the opportunity to get an ultrasound. These are commonsense laws that would make the world a little safer for women. Planned Parenthood’s opposition to what should be “common ground” shows how far the abortion organization is outside the mainstream.

Planned Parenthood claims to be a “trusted health care provider,” but the AUL Report clearly shows that there is little to trust about Planned Parenthood. Even so, the Report only scratches the surface. Congress should use its power to investigate Planned Parenthood futher and determine, once and for all, if it deserves our support, our loyalty, and our money. Until Planned Parenthood answers for its behavior, the surprise is not that the people of Indiana, Kansas, North Carolina, and Texas want to take away their funding, but that Planned Parenthood has not already been stripped of taxpayer dollars throughout the nation. Slowly but surely, Americans will become aware of how little Planned Parenthood deserves our trust, our respect, and our tax dollars. It is time to consider whether you really know about Planned Parenthood.

If you would like to learn more and read the complete report published by AUL, please visit www.aul.org.


William Saunders is the Senior Vice President and Senior Counsel of Americans United for Life.

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Advocates for life have formulated many well-known theoretical responses to these claims (some of which can be found in the book I co-authored with Robert P. George, Embryo: A Defense of Human Life). As these debates continue, it’s worth turning to another important source for our reflection on these claims: the experience of those who care for human beings who are in a persistent vegetative state, or are yet unborn. In an especially vivid form, the way we treat the radically dependent or disabled gives important testimony to our ability to situate these beings within a common framework of goods, a framework essential for thinking of these beings as persons united in a moral community with those of us who are, at least at the present moment, fully functioning.

The implications of the No Benefit view are immediately, coldly clear: if it is impossible to benefit someone, then it is also impossible to harm him by taking his life. Further, if someone becomes convinced that they cannot benefit their disabled child, or dependent grandparent, they have no reason to tend to or care for that person. Why, after all, should we take care of someone else, sometimes at great cost to ourselves, if our care can do no real good? Indeed, the No Benefit view goes naturally hand in hand with the denial of the human dignity of the unborn and the radically disabled.

Those who care for the radically dependent or disabled are motivated in part because they want to avoid a future in which their charges are ignored, abandoned, mocked, or starved. Rightly, they recognize all these possibilities as bad for their charges. Instead, they attempt to preserve the patient’s life in a loving way, in an attractive environment, surrounded by loved ones, in an atmosphere of at least some joy, laughter, and music. Even if their charge has no active ability to reason, the caregiver still recognizes the attractiveness of this possible future, and the possibility that it is a real benefit not only to the caregiver, but also to their loved one.

This insight about the good is justified by the earlier thought about what would be bad for the loved one. If it is bad, say, to mock a permanently unconscious patient by dressing him as a clown, or using him as a door stop (and few would deny this), then it would therefore be good to pursue the very same goods—treatment with respect and solidarity—that those bad forms of treatment would destroy.

Similarly, pregnant mothers can readily imagine a situation in which their unborn children are unloved, unprepared for, and done violence to; and in all such cases, they can recognize a deficiency of goods for the child, not just for themselves. The active ability to exercise the powers of reason on the part of the unborn again does not seem necessary to act for a shared good in the person of that child. Even the horrific reason that is sometimes given to justify abortion, that it is for the good of the unborn child, shows at least this ability to recognize possibilities as good and bad for the unborn, even if there is terrible error as to which possibilities are good, which bad.

But isn’t the treatment of the unborn in this case entirely anticipatory? According to this objection, the goods sought are not goods now for them, but only will be goods for them later. The problem with this view is that it fails to explain the actions of mothers (and fathers) who care for their in-utero child in a loving way even when they know that their child will die shortly before or shortly after birth. Moreover, many parents identify a time in utero, perhaps even the moment they first heard they were expecting, as the real beginning of their relationship to their child.

By contrast, consider a more obviously anticipatory case. Suppose that right now I do not have friends, but am preparing in various ways for the possibility—moving to a more populated place, working on my personal grooming, and developing virtuous habits. These preparations are truly only anticipatory: they do not themselves begin any friendship, and when I do make friends, I will date the beginning of that good in my life from the time of the friend’s first presence, not the time of what was done in advance.

No Benefit theorists are also likely to argue that person-oriented treatment of the radically impaired at the end of life is entirely symbolic. What is performed is done only in recollection of a person who was once present, but is no longer; at the extreme, such theorists could hold that there is even a form of disrespect involved in treating what is no longer a person as if it still were one. And whereas many people see themselves as benefiting by maintaining solidarity and commitments to a permanently unconscious patient, such as a spouse or parent, a No Benefit theorist might think this benefit entirely illusory.

But adult children, siblings, and spouses often see themselves as maintaining a previously existing relationship with a patient, not simply honoring, in a symbolic way, a relationship that has in fact ended. Putting flowers on a gravestone is likely to be seen as a symbolic act done in remembrance; but bringing flowers, perhaps of a favorite kind, to the room of one’s permanently unconscious spouse is likely to be seen as a loving, not a remembering, act. Similarly, feeding a patient in a persistent vegetative state appears to be one thing, while leaving a piece of cake on the grave of a deceased loved one is something altogether different. And spouses who maintain fidelity to their unconscious loved ones are true to the goods of a marriage that continues to exist.

Our very practices thus reveal the implausibility of the claim that we are unable to benefit—and therefore also to harm—those not yet, or no longer capable of, acting for themselves. Yet the No Benefit view does highlight the reality that human beings, and their pursuit of human goods, have an important temporal aspect to them.

At a most general level, we are beings who live in time, who go through temporal phases of development and decay, and who are not, at various points, actively able to do all that we one day will, or one day did. Recognition of this is essential, or we are likely to think that a snapshot image of a human being will tell us everything about what that being is. Yet it is absurd to think that a snapshot of, for example, an infant tells us everything about that child’s capabilities or goods, in abstraction from how human beings typically develop through time. Indeed, to treat a child in accordance with such a snapshot idea would require that we abandon practices that make no sense from that perspective, such as talking to children who do not yet understand what is being said; yet these practices contribute in essential ways to the development of our children’s capacities.

Looking backwards, an understanding of how a particular human being has lived through time is essential to understanding the way in which certain goods will, and will not, be of benefit now for that person. In the context of established relationships with others, how a good must be pursued in order to fully benefit another takes a specific shape: given the contours of a marriage over time, for example, husbands typically know that certain gifts will please, and certain forms of respect will be appreciated by, their wives, while other forms, acceptable for a different couple, would be experienced as strange and alienating.

This temporally specific quality to the pursuit of goods with and for another suggests that our treatment of those who have lived among us, but are now radically impaired, should be affected by the shape of those previously existing relationships. The way of life lived by a person now in a persistent vegetative state—a life that typically will have been lived with others, within a certain family-specific “culture”—might have consequences for the forms of good his caregivers should now pursue for him. Why, for example, would family members play music of a form detested by the patient in his presence, or decorate his hospital ward in a way known to be disliked?

On the other hand, particular ways of showing affection, developed through time with the patient, might still be especially appropriate even when the patient cannot actively respond to those gestures. A family-specific way of life, for example—styles of dress and decoration, forms of communication, jokes, religious symbols, and the like—should perhaps be extended as much as possible into the life of a no-longer conscious patient. Thus parents of a PVS child will hope to bring friends to visit, and to take meals, celebrate holidays, and pray together in the presence of their unconscious child, and even, if possible, to care for the child in the home. If this suggestion is correct, then the form that the general good of sociality and solidarity should take would thus be specified by the patient’s and the family’s past.

We must be able to situate human beings in their presently existing condition, and to situate their present opportunities for goods, into a larger temporal frame that includes their past and future. This is essential if we are to recognize that those human beings are a part of our human community, and that they can, like more active members of that community, be really benefited and really harmed by our choices. And these abilities are evidenced by our lived experience, and, in particular, by the practice of parents, husbands, wives, children, and friends who realize, in the lives of their charges, the goods of life, play, beauty, justice, and solidarity from conception to natural death.


Christopher O. Tollefsen is Professor of Philosophy at the University of South Carolina and a senior fellow of the Witherspoon Institute. His book Biomedical Research and Beyond: Expanding the Ethics of Inquiry (Routledge, 2008) has just been released in paperback. Tollefsen sits on the editorial board of Public Discourse.

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