Hadley P. Arkes

Interview with Hadley Arkes, Part II


How did you get interested in the abortion issue, or what directed you in there? Not everybody who is interested in political philosophy gravitates toward that issue.

Yeah, it was an issue that was coming up and I was curious about it. And I was reading [the writings] of a very good friend, John Noonan. He was a fine [scholar, and he] was still teaching at the law school at Berkeley. Later, he became a federal judge in the Ninth Circuit under Ronald Reagan. I was reading John, but it was also the conversations with my dear friend Dan Robinson who was lecturing these days at Oxford; he was one of the few psychologists [who was] fluent in Latin and Greek. He was doing laboratory work and he’s one of the founders of Neural Sciences at Amherst but he also did a book on Aristotle’s psychology for Columbia. I remember I was getting very concerned about this issue and I remember talking with Dan and we were talking about the embryo and I said, “Well, God, it looks like a tadpole.” He said, “It’s not a tadpole even when it looks like a tadpole.” He said, “I can take verified tissue from there, bring it over here, and you’ll find an arm growing in a strange place.”

And what made the deepest impression on me was Paul Ramsey, in a piece he had in a chapter of that book, the collection of essays that John Noonan assembled, in which he started tracing things back, [starting with the point where] the sole prints appear, the fingerprints appear, and swallowing begins, and tracing it all the way back to that zygotal dot. Everything we have genetically, we had at that first moment. The genetic tendencies, perhaps our allergies, perhaps even our AP scores, were all right there; we have not acquired anything different from what we had then, in our genetic definition, when we were no larger than the period at the end of this sentence.

“So, you realize now,” you tell your students, “you realize that if your mother had disposed of you when you were that zygotal dot, you would not have been the next one. That, and that alone, was you.” And I recalled, in my book First Things, when I wrote about it, I recalled that scene in The Third Man [where] Harry Lime [was] selling adulterated penicillin on the black market and [he and his friend] were at the top of the ferris wheel and this friend said, “Do you know what you’re doing? Have you seen the babies?” And he said, “Look down at those [people down there], look down at them. They’re dots! Those people there are dots. Now, if I told you, ‘You can have twenty thousand dollars tax-free for every dot that was removed would you just tell me to keep my money? Or would you figure out how many dots you thought you could afford?’” Well, it may look like a dot, it’s a small thing, but it’s not a dot.

But we began to reason about this, you’ve heard me on this, simply through the model of principled reasoning that Lincoln often would tell audiences that Aquinas adopted. The divine law we know through revelation but the natural law we know from that reasoning that is natural to human beings, accessible to human beings as human beings. And so, Lincoln had this fragment, which [was] just a fragment he wrote for himself, in which he was imagining himself engaged in a conversation with an owner of black slaves, and saying, “Why are you justified making slave of the black man? Is it because you think he’s less intelligent than you? Ah, beware, the next white man that comes along, more intelligent than you may rightly enslave you. Is it because he’s darker than you, the lighter having the right to enslave the darker? Ah, beware again, the next white man that comes along with a complexion even lighter than yours may rightly enslave you. Oh, it’s in your interest? Well, it may be in somebody else’s interest to enslave you.”

Now, the upshot was that there’s nothing you could cite to justify the enslavement of black people that would not apply to many whites as well. And I would point out to people [that] nowhere in the chain of reasoning was there an appeal to revelation or faith! This was simply natural law reasoning. It was accessible to people across the religious divide: Catholics, Baptists, atheists. And we pointed out that this was precisely the same art that we use in regard to abortion. Why is that offspring in the womb is anything less than human? It doesn’t speak at all? Neither do deaf mutes. It doesn’t have arms and legs? Other people lose arms and legs in the course of their lives without losing anything necessary to this standing as human beings to receive the protections of the law. Now, once again there’s no appeal to faith or religious belief, it is simply principled reasoning, which is to say you don’t have to be Catholic to understand this argument. But that of course is precisely the teaching of the Church: that you don’t have to be Catholic to understand the argument! It is natural law reasoning; it’s principled reasoning joined with the evidence of embryology.

Now curiously, there are so many people who say they were turned when they came and we taught about this in a course of mine called “Political Obligations,” which turned itself into the book First Things. It would start with Aristotle and Lincoln and Douglas on natural rights and the culminating point would be the life issues [that we were discussing above]. Now, the interesting thing about this, filling out the biography, is that I would get these letters from people like my dear student Ned Desmond [who was] working for Time magazine and stationed in the Far East, and I had a letter from him at Tokyo saying, “You know that work we did in that course on natural law actually brought me back to the Church.” And, what I’ve just described [about] how people come to the issue of abortion, it’s a remarkably representative account, because I came later into the church; I came into the Church around 2,000. You know, many people reading me thought I was Catholic already.

You were the most Catholic Non-Catholic in the country!

Yeah, [I was a] Jewish-Catholic! But I’m getting these letters since I’ve become Catholic, and I’m getting more letters from my former students saying, “No actually, I did come in. I did come into the Church.” And it was it was the natural law argument, to think that there is truth on these things. There is a truth here. There really are truths out there. And people now gravitate to the to the church that became the main sanctuary for truth. So, you know, John Paul II would say, “If it weren’t for the connection to Greek philosophy we could have gone the way of the ayatollahs.” Ralph McInerney used to make that point a lot, that if it weren’t for Thomas, we could have gone the way of the ayatollahs: that the connection to Greek philosophy, as John Paul II said, kept us from divinizing nature, or converting religion into superstition. So, it’s faith and reason, fides et ratio.

One of the great ironies, I think, of intellectual life at the end of the 20th century, is that you have a brilliant intellectual Pope like John Paul II, as the head of the Catholic Church, writing an encyclical like “Fides et Ratio” [i.e.,] “Faith and Reason,” in which he tries to persuade the modern world to have faith in reason: not just [to] have faith in faith, but even to trust their reason. You know, and it’s just the irony of that is so striking.

Well, you and I face this in the cases on religion and the law. People say, “Religious arguments ought to be kept out of the public sphere. If any kind of tainted religion…” Well, you take a look at the schools of philosophy, they come to reject the notion that there are moral truths anchoring our arguments. Well if there are no moral truths behind … if all your arguments are really anchored in beliefs, why would the beliefs of the secular stand on any higher epistemic plane than the beliefs of the religious?

There is as much faith in secularism as there is faith in religion.

And, of course yeah, there is more because they reject the notion that there are truths anchoring these things. So actually, with a short space you really brought the distance I’ve traversed and how it’s come. It all began with some of those conversations in which these moral arguments were arising out of what I was doing and I was now sort of marking—I won’t say “celebrating”—marking the 40th anniversary of Roe vs. Wade. I had just written a piece I submitted to commentary [in which I] argued that the court was just going to sustain the usual restraints on abortion and enforce the laws that restrain abortion. And so, I finally did something for the wall street journal during the campaign of 1976, an article on abortion. That brought the attention of many other people. I started getting invitations to speak in Detroit and other places, and I got a reputation on the pro-life circuit and began traveling those circles. I [became] involved in pro-life leadership groups, and so willy-nilly before long I was very much engaged in it.

And the Born Alive Act, the so-called “Born Alive Act,” came out of … did you want to talk about that at all?

I definitely want to talk about the Born Alive Act. It’s a fascinating story!

It is, [but] the title is awful; it’s one of those … the way they give these titles for legislative acts, they string together nouns as adjectives: “The Born Alive Infants Protection Act!” But this came out of the work of the pro-life movement. I had written a draft of something for the debating kit of the first George Bush when he was preparing for the debates with Michael Dukakis in 1988. And I would have had Mr. Bush take this line—something he could have taken very usefully in 1989 when the court came forth with the Webster case, which looked as though it was returning the political question of abortion the political arena. At that moment, there were pro-life politicians who panicked! “Oh, my God, I’m actually going to have to vote on it!” And suddenly a guy Jim Quarter in New Jersey could be pro-life as long as he knew he was safely detached from the authority to do anything about it. Suddenly, he was getting these alarming telegrams and calls from constituents [saying,] “You going to dispossess me of a right that I now believe is fundamental and anchors my personal freedom and privacy?” So, he did a 180-degree flip. At that moment, you needed a president, a leader of the party to just hold things together, to get them through the day and keep them from panicking.

At that moment, what I had written for Mr. Bush would have been just perfect. He’d say, “Look. We have a moment that’s made me return to the political arena, where ordinary people could vote on this again and we can take votes. But this matter has been ruled by the courts so long that we probably need a conversation among us before we start legislating. The other side insists that abortion is not infanticide, which means they’re willing to protect the child at some point. Why don’t we just invite them to tell us where they’d like to begin, and why don’t we begin there? And if nothing else, why not birth? How about the point of birth? Because as you point out yesterday, we have this is this decision in South Carolina in 1977 in the federal court with Judge Haynesworth of a childhood who had … survived an abortion, undergone surgery, lived for 20 days, and died. And the question was put, “Was there an obligation to preserve the life of this child?” And the answer tended by Judge Haynesworth was, “No! This is not a child protected by state law,” he said. It was a fetus marked for termination.

The right to an abortion is the right to a dead baby.

The right to an effective abortion, or a dead baby. Right! So, I said, “Why don’t we begin by rejecting that. Why don’t we invite people to join us in rejecting that, and it would mark the outer limits of this? Well I finally got people in the pro-life movement, the pro-life leaders to shine on to it, but National Right to Life did not want to go along with it because they thought it was just too easy, too modest. And of course, you <gestures towards Wolfe> were writing very early because you saw what I was up to and what I was doing with it. We were simply trying to plant the premise, and we didn’t conceal it. We said, “We think that if you give us this premise, that even the child marked for an abortion has a claim to the protections of law, then it must mean that she has a claim to protections of law that cannot pivot on whether anyone wants her. And if that’s the case, she must have some intrinsic dignity that cannot be contingent on how she affects the interests of other people or her location.”

So, you see, once we establish this, then of course we’re going to be back to asking, “What’s different about that same child five minutes earlier? Five days? Five weeks? We’re going to try to persuade you every inch along the way. But of course, if we don’t persuade you, we don’t persuade you. And from that vast volume of 1.3 million abortions each year, we may rescue a handful of lives.” And we thought, “There’s nothing trifling about that.”

I had a dear friend in Boston, the late Joe Stanton, who said, “If after all this effort we have saved only a handful of lives, it will have all been worth it.” So, we didn’t conceal that that’s what we were up to but we invited people to join the conversation. Well, the National Right to Life people thought it was just too modest, that even pro-choice congressman would vote for it and claim credit, and that some pro-lifers will be credulous enough to believe them. But Don Johnson of the National Right to Life found something equivalent, the partial birth abortion, a grisly procedure at the very point of birth with seventy percent of the child dangling out of the birth canal and then of course the awful procedure; they crushed the head of the child and suck out the brains so they can move the child, infant, “in-tact,” so to speak.

That went down though; it was doing the work; it was drawing attention of people who didn’t know—I said it was a teaching bill because people didn’t know—that under the reigning doctrines of Roe vs. Wade and Doe vs. Bolton, you can have an abortion the entire length of the pregnancy.

Yeah, people didn’t understand that.

Yeah, I remember I told Gene Rostow, the former dean of the law school Yale. He was at my dinner table in Bethesda, and he was just shocked when I told him about this. He thought you could have abortions only in the first trimester! What did he know, he was just the Dean of the law school and he was in the New York Times! Why would he know any different? And Mary Ann Glendon at Harvard surveyed 25 of her colleagues and only five of them could give an accurate account of what was in Roe vs. Wade and Doe vs. Bolton.

So, first of all, the effect of the bill was to break out information that most the public would find jolting; that’s what we were doing. Well, when the bill on partial-birth abortion was struck down in Nebraska, and by implication, 31 other states, by the supreme court in June, 2000, the prospects for the partial-birth abortion were just nil. It was in the middle of a presidential campaign, so Doc Johnson thought, “Okay what else can we do now? Let’s go back to Hadley’s bill. And Dick Posner, the great Richard Posner…”

The judge from the Seventh Circuit.

[Yes.] He twittered us during the dissent in the Wisconsin case on partial-birth abortion. He said, “Well you people never make the claim to protect the child herself so why does the state have any compelling interest in shifting the killing of the child back from the birth canal to the uterus?” And he had a point, so I said, “Let’s fill in that point. So, the line I used was the line from Andrew Jackson in the Battle of New Orleans when he supposedly said, “Boys I want you to elevate them guns a little lower.” “Let’s draw back,” [I said,] “I want you to be a little more modest. Let’s just protect that child. Whatever you think was in Roe versus Wade, it surely cannot mean the right to a dead baby. Can we not accept this?”

Well, we came forth with a bill in July 2,000 and they gave me the privilege of leading the testimony of the Judiciary Committee in the house with Charles Kennedy chairing the subcommittee of the Constitution. Doc Johnson was absolutely astonished and just smiling ear to ear because the National Organization of Women came out in opposition! He couldn’t believe they would do that! Come out in opposition to the bill to preserve the life the child born alive! Are you kidding? And the feminists were keen on it. And I said, it’s one of the ironies of this whole business that our adversaries understood this bill better than some of my allies. For example, Henry High would say, “Why is this worth doing? It’s really so modest!” I would say, “Because we’re planting premises, see. And so, my point is that the adversaries understood this bill because they saw the principle that lay at the heart of the thing. They saw that. Congressman Jerry Baylor from Greenwich Village would say, “Don’t make us vote against this thing! It’s a very modest bill; don’t give these people the argument that only draws attention to it.” We wanted the argument!

So, the bill sailed through the mark up 22 to 21 with only Mel Watt of North Carolina voting against it. And then it was coming to the house and it was just going through too easily; we wanted the argument. So, for the sake of raising the level of tension, we decided we’d go back to the old tradition of adding preambles to the bills to explain what the purpose and the premises were. So, we’d say, “Hey, by the way, if we have this wrong tell us what we have a wrong and amend it, but it seems you can’t vote coherently to this bill unless you think that even the child marked for an abortion has a claim to the protection of law that cannot pivot and whether anyone wants her. Now, do we have that wrong? Are you protecting the child only because it pleases you to protect the child? Would you cease to protect it if it ceased to please you? Well if that’s what you mean, amend us! Tell us! But if you’re not amending us then it seems to us you must be saying that the child has some intrinsic dignity of her own that can’t depend on her location or whether she serves the interest of anyone else.”

So, we had the preamble and the backers wanted it. We did raise level of attention, but it was among the Republicans! Before it even got a Democrat! A group of moderate Republicans demanded a meeting with the leadership and they threatened to go to the floor, and they threatened to join with the Democrats enclosing, adjourning the Congress, if we went to the floor with that inflammatory preamble. They were ready to do this at the height of the presidential election and to embarrass their own party. And Charles [Kennedy] said, “Wait a minute, do you think there’s a constituency for infanticide back home in your district?”

Well you know what happens at moments like this is the leadership tries to calm people down. We’ll round off something here and there. But Henry Hyde decided “No we’ve got to give in to them because here’s Kai Candle in Los Angeles; we work on the assumption that every member is the sovereign judge of what makes life difficult for him back in his district. He argued that, for the sake of preserving a Republican Congress and a pro-life Congress, we needed a lot of these pro-choice Republicans. It’s true, you know, as the Democrats learned on the other side; they need pro-life Democrats, to use Robert Casey as their useful idiot. Henry decided “Okay no, we’ll throw out the preamble,” so it goes to the floor and it brings in a vote of 380 to 15.

Well, everything got stalled with the presidential election and then we had to do this again in 2001. Charles Kennedy was gone and Jim Sensenbrenner took over as Chairman. I mention [this transition] only for this point, that we wanted to say, “Ok now let’s do the preamble again!” Joe said, “No; Henry brought this bill in at a 380 to 15, [and] we want to have as strong a performance as Henry.” We said, “We’re not interested in the box score! We want the argument!”

That didn’t go. So, it goes to the floor and it gets, I think, everybody; just two Republican votes are lost, Nancy Walker and Ben Gilman from New York, and it goes to the floor. The Senate is still in democratic hands, and yet, it’s brought to the floor by Harry Reid, the deputy majority leader! It passes with unanimous support, not a single democratic vote in opposition. Later, we’re assembled in Pittsburgh for the signing of the Bill. I was invited, the White House invited me and for the signing because it was my baby so to speak, and Karl Rove and Andy Card come up and Karl says, “How do you figure that the democrats allowed that bill to get to the floor?” And I said, so what’s your surmise, Karl?” He said, “I’m curious, they must have thought that someone out there cared about this and that there would be a price to pay they didn’t pass it.” I said, “You know, that’s interesting, there you go: the other side attributing more seriousness to our people than is really warranted!” No one would have paid any political capital among the Republicans to rescue that bill. So, it’s just a remarkable how they could have read it.