AMERICAN CONSERVATISM An Encyclopedia
ISI BOOKS Copyright © 2006 ISI Books
All right reserved. ISBN: 1-932236-44-9
Chapter One A
Abortion may be defined as the "deliberately procured (or induced) termination of a pregnancy ... at any stage after conception," the "immediate purpose" of which is the destruction of the "human fetus." For conservatives it involves profound moral and legal questions. The flash point for the abortion debate in the United States occurred on January 22, 1973, when, in a couplet of cases titled Roe v. Wade and Doe v. Bolton, the Supreme Court discovered a right to abortion in the United States Constitution.
Eight years earlier, in Griswold v. Connecticut, the Supreme Court found unconstitutional as applied to married persons Connecticut's law banning the use of contraceptives. The Court held that the Constitution protected a right of privacy and that the marital use of contraception lay within this zone of privacy. In 1972, in Eisenstadt v. Baird, this right was, for all intents and purposes, extended to the use of contraceptives by unmarried persons. These cases set the stage for Roe.
In Roe, the Court held that the Texas criminal abortion statute violated the Constitution. Justice Harry Blackmun, writing for the seven-person majority, rooted the right to abortion in the privacy right found in Griswold. The Courtfailed to give any account of where within the Constitution this right to privacy resides. But whether this privacy right was located in the "Fourteenth Amendment's concept of personal liberty" or in the "Ninth Amendment's reservation of rights to the people," the Court was quite certain that it was a right "broad enough to encompass a woman's decision whether or not to terminate her pregnancy." The Court also dismissed the argument that the fetus had rights as a person under the Equal Protection Clause of the Fourteenth Amendment.
The Court set out the requirements of this new right to abortion with legislative specificity. A state could from the end of the first trimester "regulate the abortion procedure," but only to protect "maternal health." Before the second trimester, the state could mandate only that an abortion be performed by a licensed physician. At the point of viability a state could go "so far as to proscribe abortion ... except when necessary to preserve the life or health of the mother." Though this seemed to give a state much latitude to prohibit abortion, it was in practice feckless. For in Doe, the Court had defined health in the most expansive way possible to include "all factors physical, emotional, psychological, familial, and the woman's age-relevant to [her] well-being." Practically, then, a state could prohibit no abortion.
For conservatives, Roe raised interrelated questions about the proper role of judges and the proper manner of interpreting the Constitution. At the heart of the American republic are the principles of self-government and the intrinsic dignity of each individual. A free people have the right to rule themselves so long as their laws do not infringe on the basic and civil human rights specifically enunciated in the Bill of Rights.
The judge's role within this framework is restrained by the limited scope of the constitutional charter. A law must stand unless some provision of the Constitution is violated by the law. Where a judge departs from his limited role and imposes his will upon the law-rather than abiding by the actual text of the Constitution-he does a real injustice to those subject to his judicial decrees, even where the end effected is morally laudable.
In finding a right to abortion in the Constitution-a right clearly not present under any reasonable reading of the Constitution-the Court removed an issue that almost certainly was intended to be left to the people's discretion. Conservatives have argued for more than three decades that gleaning a right to abortion from the alleged right to privacy was nothing more than an act of constitutional amendment by seven unelected men. For the Court to create such a right and then enforce it universally against the people subverted the meaning of the Constitution. Furthermore, even assuming that a right to abortion exists, there is nothing private about abortion. It involves a doctor, a father, and, arguably, the life of another human being, the unborn child. Even on its own legal terms, Roe failed.
For most conservatives the wrongness of Roe is compounded by its moral consequences. They challenge the central and fundamental principle animating Roe by contending that the fetus does not merely represent potential human life but rather is actual human life. We know this, they argue, not because of a dictate of faith but because of textbook biology.
Furthermore, conservatives argue that one may never intentionally kill innocent persons because of each person's intrinsic dignity, regardless of mitigating circumstances. Thus, because the being present at conception is human, the moral principle governing abortion is clear, if difficult to accept: one can never justify abortion-by definition the intentional destruction of an innocent human being. The human life present from conception is entitled to the equal protection of law.
For some conservatives, albeit a small minority, Roe's wrongness is multiplied by the fact that they believes the Fourteenth Amendment proscribes laws allowing abortion. Professor Robert P. George, while not endorsing this reading, has stated that a "genuinely principled argument ... can be made that the American people have, by ratifying the Fourteenth Amendment's guarantee of equal protection, committed themselves to a proposition which is inconsistent with the regime of abortion-on-demand." Thus, for some conservatives Roe is wrong because it explicitly contradicts the mandate of the Constitution to give persons the equal protection of the law.
Unfortunately Roe did not signal the worst from the Court on abortion. Nearly twenty years later, in the 1992 case of Planned Parenthood v. Casey, the Court heard argument concerning abortion regulations instituted by the state of Pennsylvania. Changes in the composition of the Court and decisions seemingly curtailing Roe had led to uncertainty concerning the status of Roe. The stage was set for its reconsideration.
Unfortunately, in Casey the controlling, joint opinion of Justices Kennedy, O'Connor, and Sourer concluded that "the essential holding of Roe v. Wade should be retained and once again reaffirmed." The majority came to this conclusion, it claimed, because of the demands of constitutional liberty and stare decisis-the legal principle that earlier decisions should be followed or "adhere[d] to" by a court in later decisions so as to give stability and continuity to the law.
The Court stated that the Constitution promises that the government cannot enter a "realm of personal liberty." The constitutional liberty implicated in the abortion question is the liberty related to those "personal decisions" concerning "marriage, procreation, contraception, family relationships, child rearing and education." Such personal decisions are constitutionally protected because "[a]t 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." This passage, referred to subsequently as the "Mystery Passage," has been the source of much derision. Abortion was to be permitted because the "destiny of the woman must be shaped to large extent on her own conception of her spiritual imperatives and her place in society." Because of the vague and seemingly all-encompassing right to define one's universe, a state is not "entitled to proscribe" abortion in "all instances."
Stare decisis required upholding Roe in large part because the Court believed that Roe had formed the fabric of numerous social interactions; women and men had ordered their lives assuming the right to abortion guaranteed by Roe. Second, the Court believed that to overrule Roe would exact a heavy toll on the Court's legitimacy. This argument amounts to the principle that even where the Court is wrong in a previous decision it should be extremely reluctant to overturn that decision lest in doing so it confirm in the minds of the people its own error.
The Court also set out a new legal standard-the undue burden standard-to govern abortion regulations before viability. After viability the Court adopted Roe's formulation that the state could proscribe abortion except when necessary for the life or health of the mother.
Conservatives' criticisms of Casey are numerous. First, they argue, the Court once again overstepped its authority and ruled on an issue about which the Constitution is, at best, silent. Worse, presented with an opportunity to correct the errors of the past, the Court instead repeated them. The utter intellectual bankruptcy of the Court's opinion was demonstrated by the fact that the Court could no better explain where the right to abortion was lodged in the Constitution than had Justice Blackmun in Roe.
Second, the conception of liberty that animates the joint opinion in the Mystery Passage is both legally and philosophically nonsensical. As a legal matter, the Court could not have meant what it said. Every time it rules the Supreme Court upholds laws that limit a person's ability to define the "concept of existence, of meaning, of the universe, and of the mystery of human life." Furthermore, conservatives understand that at the heart of liberty is the freedom to pursue the good and human flourishing. The Mystery Passage's vision of human freedom posits a radical personal autonomy that trumps any considerations of truth and the good life.
Third, the Court's affirmation of Roe arose in large part because of the hubris that animated the Court's view of itself. The Court saw itself as an indispensable-perhaps the indispensable-body helping the American people actualize their vision of themselves as a people of the rule of law. And it believed that self-understanding would be shaken to the core if it overruled Roe. The Court seemed oblivious to the fact that if Roe was wrongly decided then its legitimacy was already in question.
Fourth, conservatives notes that Casey, like Roe before it, turns on the assumption that the fetus is, at most, potential human life. But this assumption is factually wrong. Finally, Casey, like Roe, never once discusses the right it is guaranteeing, never describes what is involved in abortion, what occurs, what the necessary means to achieve the goal of ending a pregnancy are. Casey and Roe simply elide any such description.
In the years after Casey, the Court has not become the focal point for much abortion litigation. With the addition of two Democratic appointees the Court's philosophic makeup changed little. The undue burden test does allow states to place more meaningful restrictions on the abortion license. Yet, in the only Supreme Court abortion case of import in subsequent years, Stenberg v. Carhart (2000), the seemingly limitless right to liberty in Casey led the Supreme Court to strike down Nebraska's ban of the barbaric practice of partial-birth abortion.
Thus, the abortion controversy remains. With the controversy come continuing questions regarding the Supreme Court's legitimacy and the realization on the part of many conservatives that no democratic republic that allows her most vulnerable citizens to be exposed to the whims of the strong can be called healthy. Roe, reaffirmed by Casey, was the legally illegitimate act that ushered in this age of abortion. For most conservatives, abortion, like slavery, is an aberration-an example of where the Republic has turned against her deepest principles. -Charles Denson
The engagement of twentieth-century American conservatism with academic freedom is an ironic one. In 1951, William F. Buckley's God and Man at Yale: The Superstitions of "Academic Freedom," one of the seminal books of the American Right, attacked the reigning conception of academic freedom for allowing agnostic and collectivist professors to undermine the religious and individualist foundations of Yale. The beginning of the twenty-first century finds conservative professors and students appealing to academic freedom as a defense against contemporary ideologies that they believe threaten an entire generation with intellectual conformity.
Academic freedom has both institutional and individual components. The institutional component, in a famous summary by Justice Felix Frankfurter, comprises "the four essential freedoms of a university-to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study" (Sweezy v. New Hampshire, 1957). The individual component comprises the freedom of the teacher and (to a lesser extent) the student. The 1940 Statement on Academic Freedom and Tenure of the American Association of University Professors, perhaps the most important single statement on the subject, states that "[t]eachers are entitled to full freedom in research and in the publication of the results," and "to freedom in the classroom in discussing their subjects, but they should be careful not to introduce into their teaching controversial matter which has no relation to their subjects." During the 1950s, the institutional and individual components were usually in harmony, as institutions frequently appealed to academic freedom in defense of leftist professors such as those attacked by Buckley. (Many of those same institutions, however, refused to defend the academic freedom of Communist Party members, on the grounds that they were obliged to use their positions to indoctrinate rather than teach.) To date, no case concerning a direct clash of the institutional and individual components has reached the Supreme Court. The Eleventh Circuit Court of Appeals, however, has ruled on such a case, in favor of the University of Alabama, which restrained a tenured professor from making occasional classroom comments or holding voluntary after-class sessions on the Christian implications of health physiology (Bishop v. Aronov, 1991). While the professor appealed for protection of his individual academic freedom, the university appealed for the government to refrain from interfering in its institutional academic freedom.
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