In The Public Discourse - August 22, 2011
Public officials—especially the President—are obligated to protect the intrinsic equal dignity of all human beings, regardless not only of sex and race, but also without regard to age, size, condition of dependency, vulnerability, or the esteem of others. Abortion and embryo-destructive research are profound and lethal violations of this principle of equality to which the law (and the President) must respond.
Why should it matter whether the 2012 candidates for president are pro-life, especially given the vast array of other pressing issues facing the United States, including (though certainly not limited to) crushing national debt, widespread unemployment, existential fiscal strains on the social safety net, multiple wars, and the continuing menace of terrorism? Aren’t the American people tired of the intractable bickering of a handful of extremist combatants in what seems to be an endless culture war? Unless you’re a radical leftist or a right-wing Christian, why should any serious person in the public square waste time on these issues when there are so many real matters at stake at this moment in our nation’s history?
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:
- 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 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.
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.