The Civil War was a turning point in the moral history of the United States. Previously the country had tolerated slavery, a direct affront to the founding proposition, contained in the Declaration of Independence, that "all men are created equal, that they are endowed by their Creator with certain unalienable Rights." The Civil War purged this moral blight from the country by ending the enslavement of some men by others.
But the blight may have reappeared. As Justin Buckley Dyer shows in Slavery, Abortion, and the Politics of Constitutional Meaning (Cambridge University Press, 2013), disturbing parallels exist between the debate over slavery before the Civil War and the debate over abortion now.
Dyer, an assistant professor in political science at the University of Missouri-Columbia, begins his book by observing that both proponents and opponents of abortion invoke America’s legacy of slavery to bolster their arguments. This invocation often takes place in a politically heated environment, however, and Dyer sets out to examine the analogy with scholarly rigor. The result is a short, but dense and challenging book.
Dyer first turns to the legal reasoning behind the Supreme Court’s decision in Roe v. Wade. The Supreme Court found a right to abortion in the due process clause of the 14th Amendment of the Constitution through a legal doctrine known as "substantive due process." The 14th Amendment prevents states from depriving "any person of life, liberty, or property, without due process of law."
This amendment, the Supreme Court argued, does not simply protect people from arbitrary government coercion that does not follow set procedures, but it also actually encompasses certain rights and prevents the states from infringing on those rights. One of those rights, the court found, is a right to privacy, which includes abortion.
The Supreme Court used similar reasoning in its 1857 Dred Scott v. Sandford decision, grounding it in the Fifth Amendment’s due process clause (which applied only to the federal government; the 14th Amendment applied the Fifth Amendment to the states). The Dred Scott decision declared that slaves are not people who can sue in federal court and allowed slaveholders to take their slaves into free territories without fear of their slaves becoming free.
Some conservatives, such as U.S. Circuit Court Judge Robert Bork, took issue with the Dred Scott and Roe decisions because they represented judicial activism. The court, Bork argued, was reading more into the due process clause than was really there. Dyer takes issue with this conservative argument, appealing to both the history of the due process clause in the common law and to the reaction of anti-slavery Republicans to the Dred Scott decision.
"The Republican Party in general, and Abraham Lincoln in particular … emphasized the moral wrong of owning other human beings rather than taking swipes at [Chief Justice] Taney’s substantive reading of the Fifth Amendment," Dyer writes.
The problem with the Supreme Court’s ruling based on substantive due process, Dyer says, is not that it found moral substance in the due process clause, but that it found the wrong moral substance, and thus made a wrong ruling:
…those searching for historical analogs of Roe v. Wade may indeed find a lesson in the history of the Dred Scott case. The proper analogy, however, is not to be found in the common denunciation of a moral reading of the Constitution as inherently problematic. Rather, the nexus penetrates deeper to the principles underlying the constitutional order.
One of these principles is the constitutional standing of human beings. In Dred Scott, the court ruled that African slaves were never intended to be part of the American body politic, and that when the Declaration asserted that "all men are created equal," it really meant "all white men are created equal." The Supreme Court ruled similarly in Roe, arguing that the fetus is not a person whose right to life can trump the mother’s choice.
Dyer does not delve deeply into the biological research on the unborn. Instead, he simply asserts the near-uniform scientific consensus that a new human life, a developing body with a unique genetic code, is formed at conception. He moves from here to address the moral-philosophical question of personhood.
Abortion advocates often distinguish between a biological person and a moral person, one that possesses moral rights. A fetus is not a person in the moral sense, and therefore does not have the right to life, because of certain attributes it lacks, such as a moral sense or self-awareness. But this argument is distressingly similar to the argument made against the full equality of African-American slaves, who, pro-slavery advocates argued, lacked some of the characteristics of whites.
This "performance" conception of personhood, when applied to the abortion debate, can also lead to some monstrous conclusions, such as the acceptance of infanticide as morally legitimate. But the deepest problem with it, Dyer notes, is that power determines the criteria used by a society to discriminate between persons and non-persons.
This logic, often cloaked in rhetoric distinguishing between a "fetus" and a "baby," destroys the fundamental premises of the American political order:
But even if we, as a society, were to reluctantly dispense with the euphemisms, we would remain deeply divided on the moral and political questions involving human beings at this stage of development—Are they moral persons? If so, does it matter? Could there nevertheless be a constitutional right to choose their death? A common answer to these questions is that unborn human beings are not persons, and personhood, in turn, is a concept that is politically constructed. But if one tugs at the threads of this line of reasoning, the entire apparatus supporting the theory of natural rights rooted in a transcendent moral law begins to unravel, and as these theoretical foundations unravel, so, too, do the underlying principles of democracy and the rule of law.
The idea that personhood is politically constructed—that it is created through political processes—is not novel. It was championed by Stephen Douglas, opponent to Abraham Lincoln in the famous Lincoln-Douglas Debates. Douglas wanted the issue of slavery to be decided by the states and territories through democratic elections, what Douglas termed the "principle of self-government."
Dyer examines other parallels between the debates over abortion and slavery. The relegation of slaves and unborn babies to a level lower than full citizens causes significant legal and constitutional disharmony: Slaves could not vote but were partially counted when determining the number of seats a state received in Congress, while unborn babies are treated as legal persons in some circumstances but can nevertheless be killed until they are born. Both Dred Scott and Roe were decided based on faulty histories. And both slavery and abortion have caused violent crusades that were roundly denounced by people on both sides of the debate.
Undoubtedly, there are differences between slavery and abortion. But the parallels are chilling. Dyer’s book shows that America today is rehashing much of the same debate that occurred 150 years ago.
Running throughout the book is a sense of the moral foundation of America’s constitutional order. The Constitution is not just a document that sets up procedures for how the country should be governed. Rather, the procedures and institutions it created rest on a moral foundation. American political rights rest on what is really and truly right.
The moral underpinning of America’s constitutional order raises a difficult question, however, that Dyer does not fully resolve. Given that America is a democracy, who gets to decide which moral code, if any, should govern our politics? Morality should sit above politics and guide it, but given the United States’ tremendously diverse body politic, what should be the mechanism that gives morality its primacy?
The conservative critique of judicial activism, and its consequent reliance on simple procedural due process and deference to democratic elections, is a response to this problem, but Dyer’s insistence on the legitimacy of substantive due process rules out this accommodation.
The solution cannot be, Dyer insists, to preclude arguments based on private moral sentiments and rely only on premises that all can accept, as some political theorists, most notably John Rawls, have argued. The personhood of all human beings is connected to one’s deepest convictions, yet there is no reason why someone should believe that an unborn baby is a rights-possessing individual and still accept the murder of babies by the broader society. That would be to allow, and be complicit in, a monstrous wrong.
Dyer’s assertion of the moral foundation of America may be difficult to enact, but that does not make it false. And if Dyer is right that America’s political system—complete with the rights and freedoms Americans hold so dear—are founded on moral principles that affirm the rights of every human being, then abortion is not just immoral. It is un-American.