In last week’s edition of The Weekly Dish, Andrew Sullivan, the anomalous, sometimes conservativish writer, discussed abortion, among other things. He wrote:
“Federalism and the First Amendment are also the safety valves bequeathed us by our Founders. Some questions — like abortion — really are hard to compromise on, but forcing one side’s settlement on everyone (Roe) is the illiberal move. So in some ways, Dobbs has actually made liberalism easier, not harder. It allows for different legal regimes — and experience of them.”
Rod Dreher, a far more reliable conservative, seconded Sullivan’s thoughts and added that “Trump ought to have been making [this ‘great point’] in his own defense on the stump this fall.”
I genuinely like Dreher, and I sometimes like Sullivan, and I understand the points each is trying to make. Nevertheless, I can hardly imagine an issue on which two establishment (or establishment-ish, in Sullivan’s case) conservative voices could have missed the point so radically. When it comes to abortion, the Left (in general) doesn’t care one whit about such niceties as federalism, the First Amendment, or even liberalism. Indeed, it believes that abortion — and a woman’s right to it — supersedes all of those things. And I am not being hyperbolic.
I’ll try to be brief here, but the present clash between the Left and the Right over abortion mostly boils down to the interpretation of the word “rights.”
In general, rights are understood as being either negative or positive. Negative rights are those presumed to be “endowed” by man’s “Creator” and which government cannot violate. Man has the right to life, liberty, property, the pursuit of happiness, free speech, freedom of religion, a free press, to bear arms, and so on. All the rights enshrined in the Bill of Rights and derived from classical liberalism are “negative” rights. The government’s job regarding negative rights is simply to protect them, to keep others from violating them.
Positive rights, by contrast, are those that the government endows upon its people. These are the “rights” granted to a people by a just sovereign. They are functions not of man’s unchangeable nature but of the law. The right to a job, to food, to housing, to medical care, to personal safety, to equity (as opposed to equality), to education, etc. are all examples of positive rights.
At last count, there are 193 countries in the world. In 191 of these countries, abortion is understood to be a positive right, that is, a “right” granted by the government that can also be changed, modified, expanded, or eliminated by the same government at any time. Throughout much of Europe, abortion is illegal after 12 weeks. In some European states it’s illegal after 20 weeks. In Great Britain, abortion is legal up to 24 weeks but requires the approval of two doctors, both of whom must agree that having the baby would pose a significant physical or mental health risk to the mother. In short, the government decides what “rights” women have and can change those rights if and when it chooses. The only two countries in the world that treat abortion differently, that treat it as a negative right, endowed by one’s Creator and as sacrosanct as the rights to life (eh?), liberty, and the pursuit of happiness, are the United States and France (which amended its constitution to guarantee the right to abortion this past March).
There is an old saying — attributed originally to Canadian Prime Minister Louis St. Laurent — that “socialists are liberals in a hurry.” In many ways, the Warren and Burger courts (1954-1969 and 1969-1986) were American progressives in a hurry. They knew what progressives wanted. They knew what progressivism demanded of the state. And they knew that they could, in line with the progressive spirit, drag the nation along by its nose into controversial policy realms — for its own good.
The catch with this approach to legislation by judicial fiat is that it created two enormous issues. First, it preempted the formation of a national cultural consensus on abortion, thereby kicking off 50 years of squabbling. The court claimed that it was “settling” the issue, when, in reality, it made it more unsettled than ever.
Second, by tying abortion to the Constitution and, thereby, making the “right” to abortion a negative right, the court created the conditions under which abortion would become THE essential natural right for many on the Left. I put it this way, almost a decade ago in a piece for my former favorite home-away-from-home, The Culture of Life Foundation:
“Pro-[l]ifers and other conservatives tend to see the Supreme Court’s decision in Roe v. Wade as an unnecessary and unconscionable usurpation of the people’s rights in a democratic republic. Pro-[c]hoicers, by contrast, see the decision very differently. When the Court rewrote the abortion laws of the states by virtue of its conclusion that abortion was protected under the 9th and the 14th [A]mendments, it created a constitutional right to abortion. The fundamental human rights traditionally associated with the Bill of Rights — speech, religion, bear arms, speedy trial, etc. — suddenly had a new and fully-equal companion right, the right to an abortion. Indeed, some scholars, most notably Russell Hittinger, have argued that between Roe and Planned Parenthood v. Casey, the Supreme Court established a regime in which abortion is the preeminent and defining right in the constitutional order.
“Hittinger, who is the William K. Warren Chair of Catholic Studies and a Research Professor of Law at the University of Tulsa, put it this way, nearly 20 years ago:
‘In Planned Parenthood v. Casey (1992), the Supreme Court made abortion the benchmark of its own legitimacy, and indeed the token of the American political covenant. To those who cannot agree with the proposition that individuals have a moral or constitutional right to kill the unborn, or that such a right defines the trans-generational covenant of the American political order, the Court urged acceptance out of respect for the rule of law. “If the Court’s legitimacy should be undermined,” the Court declared, “then so would the country be in its very ability to see itself through its constitutional ideals.’”
What this means in the real world, then, is that those who define their politics in terms of “women’s issues” and the rights of women, see abortion not as a fundamental right, but as THE fundamental right, the one to which all other rights are subordinate.
In other words, the denizens of the Left are obsessed with the “right” to abortion specifically because the Supreme Court convinced them they should be obsessed about the “fundamental” nature of that right. They’re obsessed because the court purposefully used Roe v. Wade to convince them that abortion is a powerful and unalienable negative right.
Consequently, the pro-abortion crowd hates Dobbs because they believe that it deprived them of that fundamental right. No appeals to “liberalism” or federalism or the First Amendment will change that. Not only was Roe wrongly decided, but it fundamentally altered the nation’s politics in ways that we can barely even fathom, much less hope to resolve so soon after Dobbs.
We have our work cut out for us undoing the damage done by the Progressive Court. The only way out is through, and the only way through is to build cultural consensus on the value of every human life.
Stephen Soukup is the author of “The Dictatorship of Woke Capital” and the vice president and publisher of The Political Forum, where this article originally appeared. To subscribe to The Political Forum’s daily updates, click here.
