In “On Overruling Roe,” Dr. Hadley Arkes, Professor of Jurisprudence emeritus at Amherst College, reminds us of the real issues at stake in the abortion debate, and gives us a summary of the good, the bad, and the ugly in the recently leaked SCOTUS draft document.
Dr. Arkes is a Jewish intellectual who converted to Catholicism. He is also an enthusiastic advocate of the Natural Law (as can be seen here on our site).
Given his academic specialty, his bent of mind, and his familiarity with the historically relevant jurisprudence, Dr. Arkes was made for this moment. He should be taken seriously. I recommend the whole article, but here is an excerpt to whet your appetite:
Nothing, then, in this question of the child in the womb should be so baffling to conservative lawyers that they must deliver it to the domain of “value judgments.” The matter was set forth clearly enough by the lawyers who wrote the brief in Roe v. Wade and sought to defend the laws in Texas. That brief was a work of fine craftsmanship (and one I have written about, in appreciation, in these pages: “The Moral Turn,” May 2017). The brief drew on the most up-to-date findings of embryology in order to make its empirical, scientific claim for the human standing of the child in the womb. It contained items of this kind:
—At the end of the first month the child is about 1/4 of an inch in length. At 30 days the primary brain is present and the eyes, ears, and nasal organs have started to form. Although the heart is still incomplete, it is beating regularly and pumping blood cells through a closed vascular system. [Emphasis added] The child and mother do not exchange blood, the child having from a very early point in its development its own and complete vascular system. Earliest reflexes begin as early as the 42nd day. The male penis begins to form. The child is almost 1/2 inch long and cartilage has begun to develop.
—Even at 5 1/2 weeks the fetal heartbeat is essentially similar to that of an adult in general configuration. The energy output is about 20% that of the adult, but the fetal heart is functionally complete and normal by 7 weeks.
There is no “value judgment” in these observations of fact. They are not claims of “belief,” religious or profane.
The authors of the brief drew upon a case in New York, decided twenty years earlier, but already containing remarks on how much we had come to know about life in the womb. As the judge had written in Kelly v. Gregory:
We ought to be safe in this respect in saying that legal separability should begin where there is biological separability. We know something more of the actual process of conception and fetal development now than when some of the common law cases were decided; and what we know makes it possible to demonstrate clearly that separability begins at conception.
The mother’s biological contribution from conception on is nourishment and protection; but the fetus has become a separate organism and remains so throughout its life.
It all came down to this: If a woman is pregnant, something is alive and growing. If it is alive and not a tumor, it is a human being from its first moments; it has never been a part of the mother’s body. From that point forward, reason alone should have reminded us that the laws of homicide have ever been indifferent to the size and age of the victim. The killing of an older, heavier man would not be graver than the killing of a small, weaker child.
Bravo, Professor Arkes!