The American Civil Liberties Union is resolutely against capital punishment. It is also resolutely pro-choice in another matter concerning the death penalty. Is there a contradiction? Not according to the publications and legal briefs of the national ACLU and its state affiliates. For the ACLU, the right to an abortion is as firmly guaranteed by the Constitution as the right to freedom of speech.
But there are signs of heresy within the ACLU concerning Roe v. Wade. The conscientious objectors are still very few in number, but they are beginning to be heard. This spring, for instance, Barry Nakell spoke on "The Right to Life" before the annual meeting in Chapel Hill of the North Carolina Civil Liberties Union. Nakell, a board member of that affiliate, is a professor of law at the University of North Carolina.
He felt impelled to speak up publicly against the ACLU position because, Nakell told me, "I was feeling more and more uncomfortable in not being on the record with my friends concerning my belief that the basic civil liberty, essential to all the others and presumed by each of them, is respect for the dignity of life."
Nakell reminded the annual meeting that the principle of the dignity of life is the basis "for the paramount issue on the North Carolina Civil Liberties Union agenda since our founding: our unstinting opposition to the death penalty." And he pointed out that the NCCLU general counsel, N. B. Smith, had published an article last year in the Boston College Law Review in which Smith emphasized that "life itself is plainly a basic and essential right, and the (Supreme) Court would have difficulty in plausibly declaring life to be less than fundamental."
The heretic also prodded his auence to reconsider its attitude toward Roe v. Wade by reminding them that in 1975, West Germany's highest court had interpreted the "right to life" guaranteed by the Basic Law of the Bonn Constitution as giving constitutional protection to unborn children. That "right to life" was in reaction to the Nazi regime's pervasive destruction of "life unworthy to live."
Yet, Nakell said in his talk, "I have reviewed the ACLU policy guide in a search for a strong statement of the principle of respect for the dignity of life, and have not found any. This is an oversight that we need to correct."
As for abortion, the law professor made the reasonable point (in some circles) that reasonable people can "responsibly disagree about when life begins." Some say it begins at birth. Others, Nakell among them, believe life starts at conception.
With regard to the ACLU's position, Nakell emphasizes that in all other matters, the ACLU "stands for expansive interpretation of constitutional liberties." But not in terms of the rights of the fetus. Yet one would think, he said, that "if there is any doubt as to whether a fetus is a human life," the ACLU, by tradition and principle, would be the advocate of the most powerless of all and urge constitutional protection for this developing life.
Most tellingly -- before an audience that has been as steadfast as Justice William Brennan in denouncing the state as executioner -- Nakell observed that the ACLU, in supporting Roe v. Wade, thereby agrees that the Constitution protects the right to take life.
"The situation is a little backward here," he noted. "In the classical posture, the Constitution would be interpreted to protect the right to life, and pro-abortion advocates would be pressing to relax that constitutional guarantee." The Supreme Court turned it all around, however, and the ACLU agrees with the court that some lives are less worth protecting than others.
Nakell has not been put in Coventry by his fellow North Carolina civil libertarians. He expects the dialogue will continue, and
when he went to the ACLU biennial
meeting in Boulder, Colo., in June, Nakell had a sense that some other ACLU
members around the country were also ready for dialogue. At one meeting, when a delegate said firmly that "a woman has the constitutional right to a dead fetus," most of those in attendance cringed. Nakell felt that was encouraging.
And one ACLU member in California has said, in a letter to me, that "no one can say with authority when life begins, but since we know that identity begins at conception, we're obliged to give the benefit of the doubt."
Barry Nakell tells of a bumper sticker he saw recently: "Equal Rights for Unborn Women."