Supporting in Order to Oppose

A peculiar argument has been floating around the abortion debate lately — of the sort for which our confused society takes the counterintuitive nature of a premise as evidence of its truth. Here's William Stuntz, writing on Tech Central Station:

... if the Supreme Court overruled Roe and a couple dozen states criminalized early-term abortions, those trends would quickly reverse. Abortion would become not a moral question, but a civil liberties question - just as it was in the 1960s and 1970s.

This phenomenon -- legal victory that leads to cultural and political defeat -- has a long history. In the 1850s, slaveholders collected some huge legal prizes: the Fugitive Slave Act, the Kansas-Nebraska Act, the Dred Scott decision. Those victories produced an anti-slavery movement powerful enough to elect Lincoln and win the Civil War. Sixty years later, the temperance movement won its long battle for national Prohibition. Within a decade, the culture was turning against temperance; Repeal came soon after. In America's culture wars, the side with the law's weaponry often manages only to wound themselves.

Ramesh Ponnuru has responded in the Corner, closing with the assertion that this seemingly plausible thinking will gain no traction among people who "believe that it is necessary to change unjust laws that permit the killing of innocents." For perspective, imagine Stuntz arguing that those who oppose murder should assent to its legality.

Apart from the depth of disagreement, Stuntz's assessment isn't accurate. Ponnuru alludes to the broader reason with reference to partial-birth abortions, which became an issue "because a political movement made a priority of changing the law to ban them--and was not willing to stand down because legal academics (and later the Supreme Court) said that a ban would violate Roe." It is precisely this interplay between law and culture that makes it specious to point to declines in abortions and declare current law the cause.

The cultural force of the political activism is more likely the cause of the hopeful trends, and the moment pro-lifers begin accepting abortion as a fact of American life — the moment they cede the law to focus on culture — the trend will very possibly reverse. In fact, I've argued before that it's somewhat more than possible.

At first glance, that would seem to accord with Stuntz's examples — perhaps suggesting that pro-life leaders keep the fight up while realizing that legal success would undermine cultural success. But applying Stuntz's examples from the pro-abortion standpoint shows them to be irrelevant at best. By his own predictions for a post-Roe society, one would expect there to be politically powerful groups currently advocating for a return to slavery and/or to prohibition.

Abortion supporters might claim that the principle that has made both slavery and prohibition dead causes is the priority of individual freedom. Pro-lifers would argue that individual freedom is precisely their objective — the freedom of the individual to be born. That exchange leads directly back to the basic disagreement of the abortion debate, but a more basic factor cuts through all such disputes: the articulation of principle itself.

Our culture slipped toward legalized abortion, alongside deterioration of sexual mores and the ethos of the traditional family. The "civil liberties question" gained its power only because we, as a society, had forgotten how to answer it. Consequently, the inarticulable quality of the "moral question" led a brash movement to answer it with a snort.

In this view, what the pro-life movement has essentially done is to spend the past thirty years conceptualizing and then explaining why abortion is wrong. (Before the Sixties, blanket religious and social declarations sufficed.) Legal victory, in other words, will rest upon a strong moral and intellectual foundation. And it will last — ideally expanding to address other dire matters inimical to its central principle: the value of human life.