No one I respect can speak gladly or easily of abortion.
We have argued back and forth over whether a fetus is a "person." I myself do not know. In one sense I do not even care.
"Growth is the only evidence of life," wrote Cardinal Newman in his "Apologia." It was a figure of speech, but it is as good literally as it is figuratively. A growing fetus is to me as fair evidence as any of the presence of human life. Abortion destroys that evidence. Is abortion then murder? The word "murder," like the word "person," is a legal, technical term, a sort of definition, applied to a portion of reality. A term like "murder" bespeaks a final judgment of law--one that I am not now ready to make.
The only judgment I can make is of my own feelings and convictions about abortion. For me and mine it is wrong, sadly and tragically wrong. It is human life turning against itself. But the tragedy is much larger than the operation itself. And to stop the operation by an act of law is not likely to end the tragedy. It may well make it worse.
Wrongness in itself never settles hard questions of law. Law is an imposed morality, all law. But it is not the imposition of all morality. There are many wrongs that people do to one another (and to themselves) that lawful force cannot prevent. Nor can the law right them once they are done. To my mind abortion is among these.
I do not put much stock in expertise in these matters. Long, hard study is fine for a detached observation or generalization. Ultimate moral judgment about life and death is something quite different. Such a judgment is almost necessarily a compound of passion and reason. The pure smell of the lamp--the pure air of rationality--is likely to be false. What lies behind it, what must lie behind it, is something much more complex.
The Senate Judiciary Committee has approved a constitutional amendment--the so- called "Hatch amendment" --that would allow the states and the federal government to provide protection for the human fetus, with the stronger protection prevailing in cases of conflict between federal and state law.
The attraction of the Hatch amendment is that it does almost nothing beyond repealing the Supreme Court decision in Roe v. Wade. I say "almost nothing" because the amendment does provide for the supremacy, if you will, of the stronger of two competing laws, state or federal. That provision suggests, moreover, what should be obvious about the operation of such an amendment: it favors resolution of this question by the states only where the resolution in question in fact restricts or prohibits abortion.
Thus, while the procedure of the amendment is novel and interesting on its own terms, it is not in fact a matter of mere procedure, as some may have argued. It is a change in the law repealing a major, if much controverted, Supreme Court decision, and dispersing the authority to remake that decision on the sole condition that the newfound authority be exercised so as to make good the repeal.
It is true, of course, that if neither Congress nor a given state passes laws restricting abortion, then abortion will go unrestricted. But this is not to say that a given state, or a given Congress, has the authority to leave abortion unrestricted. That authority--unlike the contrary authority to restrict abortion --must be exercised at the two poles of federalism in order to be effective. This amendment does not, then, restore us to the legal world that fell with Roe v. Wade.
What of the new legal world of the Hatch amendment? It has, to my mind, two flaws, one broadly constitutional or procedural, the other moral and, in every sense, substantive.
The procedural difficulty with the Hatch amendment is that it changes the rules of constitutional decision while seeming to leave them be. A constitutional amendment takes a constitutional majority. "So will this amendment," say its proponents. And indeed it will. But this amendment will be argued for not so much in terms of abortion as in terms of federalism. "Leave it to the states," people will say, "and not to a handul of justices."
This argument is always a seductive one, and almost always for the wrong reasons. But here the argument is a smoke screen. The states would have only the authority to do one thing: to restrict or prohibit abortions. So, too, with the authority of Congress. The amendment thus confuses--deftly and simply--a federalist procedure with a constitutional result. Neither federalism nor the Constitution is well served by this cleverness.
The moral ambiguity of the amendment is perhaps most telling. Since 1973, those who have criticized the decision in Roe v. Wade have been forced at times to defend themselves against what I call a constitutional piety. That piety holds that once a decision of constitutional right has been made by the Supreme Court of the United States it is beyond decent argument or dispute. It is a false piety, and one on which Lincoln snared Douglas:
"We do not propose that when Dred Scott has been decided to be slave by the court, we, as a mob will decide him to be free. . . But we nevertheless do oppose that decision as a political rule which shall be binding on the voter, to vote for nobody who thinks it wrong, which shall be binding on the members of Congress or the president to favor no measure that does not actually concur with the principles of that decision. . . We propose so resisting it as to have it reversed if we can, and a new judicial rule established upon this subject."
On more or less this same ground, opposition to Roe v. Wade has taken up its position. That position holds, roughly, that the Supreme Court's disregard of the moral status of the fetus is like the Supreme Court's disregard of the moral status of the slave. "Dred Scott was overturned," they say, "let us now overturn Roe v. Wade."
Although I cannot join in this argument, I find its premise forceful and plain. When a matter of the most fundamental moral significance has been misconstrued by a constitutional court, it remains to the citizenry at large to set that matter straight. For just this reason our Constitution is amendable by special and sustained majorities at the national and state levels.
The Hatch amendment deprives these opponents of abortion of this special moral standing. Rather than take this issue straight as a moral and constitutional question, it turns it into a procedural and political one. Bare majorities will, under this amendment, decide the question in this state and that. And should the opponents of abortion fail to secure a bare majority in the Congress, then the states will go this way and that.
This is the Missouri Compromise on abortion.
You may say in its favor what was said of the original compromise on slavery: it averts an outright conflict; it allows some room to both sides; by its terms no one loses.
All of this may be true. But it is beside the point: the debate over abortion is a national debate over the moral content of our national constitution. If the slavery debate taught us anything, it taught us the imperative of national resolution in matters of our fundamental constitutional morality. This compromise no more settles this question than the Missouri Compromise settled the slavery question.
There is only one way to settle this question once and for all. It is to offer to the nation the plain moral judgment that abortion must be prohibited. I cannot adhere to that judgment. But at least I can see it plain and fight it plain.