This essay is part of a series of advice for Judge Gorsuch. See related articles here.
I am not in a position to offer Judge Gorsuch advice regarding constitutional law and legal philosophy, because he knows those subjects much better than I do. I have, however, given quite a bit of thought to the abortion debate in contemporary American society, and I may be able to suggest some ideas on that subject, or at least to provide an organizational framework for his remarks. If Judge Gorsuch were to ask my advice on abortion in general, here’s what I would tell him.
The first point to note is that this is a situation you should enter with great confidence, Judge Gorsuch, because it is a “heads I win, tails you lose” scenario. If the Senate does not grill you seriously on the topic of abortion, then you will probably be relieved, and you will probably move forward into a relatively easy confirmation process. If you are pressed vigorously on the topic of abortion, however, it will give you an opportunity to express the pro-life worldview before the eyes of a watching world, and that is a golden opportunity to be relished. If you handle their questions correctly, those senators who are adamant about defending Roe v. Wade will come to regret their decision to challenge you on this topic.
The key idea that you need to communicate regarding abortion is that the pro-choice worldview is a tangled mess of inconsistent ideas. There are a number of different ways that you can frame this message. Below, I outline just a few possibilities, listing some of the many self-contradictory aspects of the pro-choice worldview.
The Contradiction at the Heart of the Pro-Choice Position
There are two main legs supporting the pro-choice position: individualistic relativism and a belief that the pro-choice position is an instance of moral progress in the modern world.
Relativism holds that each individual is the inventor of his or her own moral belief system, and there is no external source of objective moral truth. This idea is expressed in the most famous sentence of the Casey decision: “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.” In other words, if a woman cannot interpret the human being developing in her womb as “merely a clump of cells” or “tissue” that can be disposed of with no moral wrongdoing, then her “liberty” is being trampled on. Relativism maintains that everyone’s opinion on such matters is equally valid.
The belief that the pro-choice position is the cutting edge of moral progress enables those who support it to say that those who disagree with them are imposing their own reactionary moral dogmas that oppress women. This means that pro-choice advocates view their position as morally superior to the position of those who disagree with them.
It doesn’t take a genius to see that moral relativism and a belief in one’s moral superiority contradict each other. Both are philosophically false ideas on their own, but I will not critique them at this point—I simply note that they are contradictory.
When Life Begins
In the text of the Roe decision, Justice Blackmun famously opined,
We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.
He pleads agnosticism about the “difficult question.” But later in the same text, Blackmun says that a fetus, “at most, represents only the potentiality of life.”
In other words, to legalize abortion Blackmun had to forget (or reject) his previous agnosticism and claim that he knows that the inhabitant of the womb is not a person. If the human being in the womb were a person, then it is clear, Blackmun admitted, that abortion should not be legalized, because it would be an unacceptable form of homicide. This agnosticism/gnosticism switch in the text of Roe is one of its most commonly criticized features.
It is common for pro-choice advocates to say that pro-life advocates are guilty of imposing their morality on others. In this usage of the English language, “imposing” is apparently the unpardonable sin of modernity. Yet it is apparently a good thing that the Supreme Court was able to impose its will on all fifty states in the matter of abortion and to assert that it alone among the branches of government has the absolute authority to claim the legitimacy of its own absolute authority in this matter.
It is hard to find a clearer example of hypocrisy than this, especially given that the raison d’être of the pro-choice position is that “liberty” must be defined as the ability to impose death on the human being developing in the womb. The philosophical confusion at work here is ripe for criticism.
Abortion as a Positive Good?
The pro-choice position maintains that access to abortion is a benefit to women. For some odd reason, however, one never hears this idea expressed in this way: “Women are benefitted by being able to kill their own children.”
Usually, abortion is described using such positive-sounding words as “liberty,” “rights,” “autonomy,” “self-determination,” and so forth. Occasionally, however, one finds in pro-choice literature a (reluctant) admission that abortion is morally problematic, as when one author writes, “In general feminism is a peaceful movement. It does not condone violent problem-solving, and opposes war and capital punishment. But abortion is a version of violence. What do we do with that contradiction?”
This notion of “beneficial violence” is philosophically incoherent, and it does not ring true in the lives of the many, many women whose personal experience of abortion has been a psychological trauma that has damaged them greatly. The voices of such women must be ignored or suppressed by pro-choice advocates.
The Meaning of Rights
Pro-choice advocates love to use the word “rights,” as in “I support women’s reproductive rights.” Pro-life advocates, of course, use rights language also, to exactly opposite effect: “I support the unborn child’s right to life.” These contradictory uses ought to make us stop and reflect on the meaning of rights language as a philosophical concept. Instead, we careen forward, saying the same thing over and over again, decade after decade.
The incoherence in the pro-choice worldview lies in the unexamined assumption that when its proponents use this type of rights language they are speaking in the same way that Thomas Jefferson and Abraham Lincoln spoke. Nothing could be further from the truth.
Rights language, as it is used by pro-choice advocates today, is an artificial social construct. The right to abortion exists because those in a position of cultural power have decided that they want it to exist. The more lucid pro-choice intellectuals admit this point quite candidly. They say that rights language is merely rhetorical, and that the notion that human beings have “natural rights” that are endowed by the Creator is an archaic and passé idea that has fallen into the dustbin of history. They attempt to harness the power of rights language as if abortion were as traditional as apple pie, baseball, and the Star Spangled Banner. In reality, they use this language in the context of a modernistic worldview that rejects the understanding of natural rights that was present in the philosophy of the Founding Fathers and Abraham Lincoln.
Progressivism and the Culture Wars
The current “culture war” that is dividing America can be interpreted in many different ways. It is clear, however, that it has its roots in the cultural crack-up of the 1960s, the reverberations of which we are still feeling today.
The 1960s saw the emergence of a very strident form of progressivism. It arose out of a deep sense of outrage against racism, sexism, the Vietnam War, and other signs that the notion that all people are “created equal” masked a terrible hypocrisy in American life. Self-proclaimed liberals sought to disassociate themselves from all that they perceived as being wrong in American history so that they could form a new moral vanguard that would socially reengineer the country using the power of the government and the universities.
The rise of feminist consciousness included a critique of men as being oppressive, war-mongering, and colonialist. Yet, in other ways, feminists—seemingly unconsciously—held up men as a model to be emulated. The wealthy, wombless, and “autonomous” male was the ideal that was both vilified and secretly envied, so that “equality” for women was modeled on a male template.
Pro-choice advocates today can thus say, without a trace of irony, that the killing of the inhabitant of the womb can be argued for using the principles of just war theory. One pro-choice author took this logic to an absurd, and frightening, extreme, by saying that “The fetus can be compared to a citizen of a totalitarian state whose freedom is taken away by the government.” Another wrote an autobiography in which she explained how she justified in her own mind having fifteen abortions in fifteen years. The immense unseen irony here is that to “free” women from being victimized by “patriarchy” by enabling them to victimize their own children in the womb is a more grandiose form of hypocrisy than any other in human history.
Contemporary progressivism is actually a new form of Pharasaism: “I thank thee, Lord, that I am not as this racist, sexist, capitalist, imperialist sinner.” At the heart of this aspect of pro-choice incoherence is the notion that (1) sexism has terribly damaged women by placing them lower down on the Great Chain of Being; therefore, (2) the best way to respond to that damage is to allow women to adopt the same attitude of oppressive violence traditionally practiced by males by pushing the inhabitant of the womb lower down on the Great Chain of Being; this will be called “equality.” Pro-life feminists have been making this critique for decades; they have been ignored by those whose thinking is trapped in the 1960s.
Religion and Public Discourse
Pro-choice advocates commonly say that religious arguments must be excluded from the abortion debate. There are atheists who support the pro-life position based on their understanding of what science has discovered regarding DNA and embryonic development; this fact refutes the notion that the pro-life position is necessarily rooted in a “religious dogma” regarding the beginning of personhood. Solid “secular” arguments have been made by various philosophers who support the pro-life moral position. To believe that abortion is morally wrong is no more “religious” than to believe that the killing of a five-year-old or a fifty-year-old is morally wrong.
The notion that the language of public discourse must be “secular” and that “religious” language must be privatized assumes that these words “secular” and “religious” have obvious and clear meanings that are agreed upon by everyone. That is not the case. Various scholars have analyzed Stalinism and Nazism, for example, as political religions, and others have written on American “civil religion,” or on shopping malls as “sacred spaces” or on devotion to sports teams as a religious phenomenon. It is a boilerplate idea that the word “religion” is indefinable by scholars, and the concept of “secularism” is just as fuzzy. Charles Taylor has written hundreds of pages of high-level philosophical analysis of these ambiguous issues.
Rights language, for example, is often described as having roots in Judeo-Christian history that cannot be separated from its current usage, no matter how hard some people may try make that separation. So if religious language must be excluded from the abortion debate, does that mean that pro-choice advocates are forbidden to use rights language? The fact that such a question is not even close to being on the radar screen of most people is a sign of how weak our reflection on the concept of “rights” tends to be.
In any case, a strong argument can be and has been made that the pro-choice worldview is intrinsically religious, whether it is affirmed by liberal Christians or Jews, or by those who claim to be “secular.” There is an unacknowledged spirituality that drives the pro-choice position, which can be given a quite precise label: individualistic Gnosticism. In this worldview, the atomized individual has come to occupy the place of sovereign power over life and death that was traditionally thought of as the place of the Creator. We have become the gods of our own worlds, inventing our own metaphysics and morality, and justifying our lethal power in our own eyes.
The pro-choice position is thus guilty of massive hypocrisy when it chastises others for “imposing” their morality on others, while it is busy actually imposing its lethal ideology on the most vulnerable members of the human species, as a revival of the ancient practice of child sacrifice.
The arguments about abortion tend to be of three kinds: definitions, consequences, and analogies. In all three areas the pro-life position holds the philosophical and moral high ground.
With regard to the definition of the word “person,” the pro-life position is aligned with the best scientific and philosophical understanding, while the pro-choice position insists on an arbitrary and dehumanizing definition that facilitates lethal power; with regard to “rights” the pro-life position is attuned to the best insights and ideals of the Declaration of Independence, Abraham Lincoln, Martin Luther King, Jr., and Mother Teresa.
The “consequences” argument of the pro-choice position rests on the psychological quicksand of the claim that benefits flow out of the ability of parents to kill their children in the womb.
In the realm of analogies, both camps have at various times claimed to be the heirs of the abolitionists. They cannot both be right. (This is another refutation of relativism.) The pro-choice side relies on a dehumanizing interpretation of the inhabitant of the womb, just as the pro-slavery side insisted on a dehumanizing interpretation of the black slaves. Those who are uncomfortable with that approach sometimes say that “I am personally opposed to abortion, but I think it should be legal.” They are the contemporary heirs of Stephen A. Douglas, who said that “I care not whether [slavery] is voted down or voted up.” Paraphrasing: “I personally wouldn’t own slaves, but . . . .” Speak the truth boldly, Judge Gorsuch.