by Justin Buckley Dyer. New York, NY: Cambridge University Press, 2013. 202pp. Cloth $90.00. ISBN: 978-1-107-03194-4. Paper $29.99. ISBN: 978-1-107-68074-6. eBook $24.99. ISBN: 978-1-107-33116-7. Reviewed by Helena Silverstein, Government and Law, Lafayette College. Email: silversh [at] lafayette.edu.
pp.44-51
In July 2013, during a rally at the Texas State Capitol, former Arkansas Governor Mike Huckabee defended a restrictive abortion regulation by appeal to slavery. “Huckabee compared abortion to slavery, asking if society could reject slavery and ‘come to the conclusion that one person can take the life of another person’” (Luthra 2013). Huckabee is not, of course, the first to link the historical legacy of slavery in the United States with abortion. As Justin Buckley Dyer shows in his book SLAVERY, ABORTION, AND THE POLITICS OF CONSTITUTIONAL MEANING, since the U.S. Supreme Court’s 1973 ruling in ROE V. WADE, “alleged parallels between slavery and abortion have been a mainstay of American public discourse” (p.3) and derive from “a pervasive feeling among many conscientious citizens that the battle over the institution of slavery in the nineteenth century somehow sheds light on the contours of contemporary American politics” (p.xi).
Dyer cautions against careless deployment of the analogy. “Similar, perhaps, to the ways in which the legacies of Nazism and Fascism are haphazardly thrown around in our political discourse, many of the contemporary invocations of slavery are, no doubt, sloppy attempts to score partisan points over ideological rivals” (pp.xi-xii). Dyer does not, however, eschew the link between slavery and abortion. To the contrary, Dyer’s book is framed in terms of this analogue, “born of a desire to introduce rigorous analysis into the myriad scholarly debates sparked by the comparison” (p.12). Slavery and abortion, Dyer argues, have “a historical, philosophical, and legal nexus in American history,” albeit “subtler and more nuanced than is often suggested” (p.xii). Dyer’s stated goal is to illuminate this nexus through “sober analysis devoid of the polemics that so often mar fruitful dialogue about such politically volatile issues” (p.12).
In its effort to treat this controversial analogy, SLAVERY, ABORTION, AND THE POLITICS OF CONSTITUTIONAL MEANING raises some worthwhile points. However, Dyer’s main argument –namely, that there is real resemblance between ROE V. WADE (1973) and DRED SCOTT V. SANDFORD (1857), and between abortion and slavery – is either wrong or unnecessary.
Dyer unpacks his argument by way of constitutional, historical, and philosophical analysis. In Chapter 1, he briefly traces the linking of slavery and abortion in American public discourse, noting especially, though not exclusively, the “ROE = DRED” equation (p.6). In the chapters that follow, Dyer partially dismantles and then rebuilds the equation. [*45]
Chapter 2 begins with DRED SCOTT and Dyer’s argument that the popular understanding of the tie between ROE and DRED SCOTT is oversimplified and misguided. This popular understanding, Dyer contends, is grounded in the claim that both cases rest problematically on a substantive interpretation of due process and the unprincipled and raw exercise of judicial power. Such an interpretation threatens to reduce the connection between slavery and abortion to a debate over competing jurisprudential approaches. Instead, Dyer seeks to expose the more subtle connection between DRED SCOTT and ROE V. WADE by chronicling the development of the Fourteenth Amendment’s Due Process Clause in the SLAUGHTER-HOUSE CASES (1873) and the decades following the Civil War. Central to Dyer’s discussion here is how the Court’s constitutional interpretation accepted a natural rights view. On this view, fundamental constitutional rights “were simply natural rights applied in a particular political context and modified by local regulation and enforcement…. The disagreement among members of the Court was not whether natural rights existed or whether they were relevant to constitutional government. Rather, the Court divided over the locus of authority in the American constitutional order for protecting these rights” (p.40). Furthermore, Dyer argues, it is this “jurisprudential tradition out of which the case of LOCHNER V. NEW YORK emerged at the turn of the century. But contrary to the argument that has been made by Robert Bork and others, there is no straight line from DRED SCOTT to LOCHNER to ROE” (p.42).
The absence of this straight line is the subject of Chapter 3. Dyer starts with LOCHNER V. NEW YORK (1905), explaining that the majority ruling and its substantive interpretation of the Fourteenth Amendment adhered to the jurisprudential tradition of the late nineteenth century. Marking a break from this tradition is Holmes’s dissent in LOCHNER, and the decisions that followed reveal a jurisprudential fight between “the old natural rights jurisprudence and the new legal realism” (p.48). The ultimate result of New Deal-era constitutional development, Dyer explains, was the reversal of LOCHNER, the rejection of the traditional natural rights approach, and a clash over the proper exercise of judicial review. While this fight yielded no jurisprudential consensus, in GRISWOLD V. CONNECTICUT (1965) “the seeds of a socially libertarian, non-economic version of substantive due process germinated” (p.55) and “a more robust non-economic doctrine of substantive due process emerged to form the basis of the Court’s controversial abortion rights decision in ROE V. WADE” (p.57).
Dyer contends that while ROE is grounded in a substantive interpretation of the Fourteenth Amendment and is thus tied to LOCHNER, the abortion ruling “is more accurately seen as a break with, rather than a continuation of, the natural rights jurisprudence that developed in the first few decades after the ratification of the Fourteenth Amendment” (p.42). After disentangling some common linkages, Dyer returns to the slavery/abortion analogy to “find a true resemblance between ROE and DRED SCOTT, for in each case the Court excluded some natural human beings from the community of constitutional persons” (p.63). In DRED SCOTT, “the [*46] Court treated biological human status as irrelevant to the question of constitutional personhood while constructing a legal community of constitutional persons that did not necessarily overlap with the population of natural persons” (p.63). And in ROE, the claim that “the fetus is a constitutional non-person provided the linchpin for the Court’s decision” (p.62).
Using this parallel, Dyer takes to task those who criticize the Roe decision for engaging in substantive due process. Dyer maintains that substantive moral reasoning is an inevitable component of constitutional interpretation (p.68) and that the dissenters in DRED SCOTT grounded their arguments on such moral reasoning by appealing to natural law and slavery’s violation of natural law principles.
[T]hose 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, and we would do well to engage these moral issues rather than dismiss them as somehow peripheral to the persistent DRED SCOTT/ROE analogy. (p.74)
In other words, people should not criticize ROE for engaging in substantive due process; ROE should be criticized for not engaging in enough substantive due process by skirting the question of whether human beings have moral status from the moment of conception. “For if human beings at every stage of development had been recognized as rights-bearers in some fundamental moral sense, then it would have strained credulity to insist that the Fourteenth Amendment, written to secure the fundamental rights of human nature to all persons, prohibited states from protecting one class of human beings from the private use of lethal force” (pp.69-70). The persuasiveness of Dyer’s argument here turns on the premise that human beings at every stage of development should be regarded as rights-bearers in the moral sense. Dyer is slow, however, to defend this premise.
In Chapter 4, Dyer argues that there are deep tensions in the logic and implications of ROE’s privacy interest, which, like the logic of slavery, permit private violence against a subset of natural persons who are excluded from the category of legal and moral persons. Dyer uses partial-birth abortion to make his case, suggesting among other things that the procedure shows the violence of abortion and the arbitrariness of drawing a moral and legal line between the unborn in the womb and the unborn outside of the womb. Furthermore, “like the violence accompanying the system of slavery, the violence inherent in abortion cannot ultimately be reconciled with American liberalism,” (p.77) and, “[l]ike the institution of slavery, the violence inherent in the practice of abortion manifests a deep constitutional disharmony that will be resolved only with the abandonment (or radical reinterpretation) of our liberal principles or the recovery of the traditional idea, long at the base of ‘most of our laws and much of our social policy’ that every [*47] human life has an ‘intrinsic worth and equal value’” (p.104). Here too, the persuasiveness of the parallel between abortion and slavery turns on a premise, still undefended by Dyer, that the unborn, from conception, should be viewed as rights-bearing beings.
Chapter 5 takes a detour from the main line of comparison between slavery and abortion to take aim at historical narratives about abortion regulation. Dyer argues that an erroneous and politically constructed historical narrative, proffered by abortion-rights advocates, sits at the foundation of ROE V. WADE and legal scholarship. In particular, Dyer maintains that “new histories … spun off from deliberately fabricated narratives” (p.124) wrongly assert that abortion was a liberty reserved by the common law at the time of the founding. These historical renderings further suggest that abortion regulations instituted in the nineteenth century were not grounded on a belief that the unborn are persons nor aimed primarily at protecting the life of the unborn, but instead sought to protect women’s life and health. “Though the constitutional narrative that undergirded the Supreme Court’s abortion jurisprudence in ROE was largely false, the construction of that narrative was a critical aspect of the initial creation, and subsequent maintenance, of constitutional abortion rights in the late twentieth century” (p.128). Dyer notes that while these historical arguments have receded in recent abortion rulings, they have remained central to scholarly presentations of abortion history, and “the new abortion narrative remains an important component of the political construction and maintenance of constitutional abortion rights” (p.131).
In Chapter 6, Dyer begins to turn his attention to the premise that underlies the analogy between abortion and slavery, that is, whether we should regard the unborn as having moral status. “Like the debate over slavery, public deliberation about abortion depends on a judgment about the nature of the wrong in question” (p.140). The debate over abortion, he continues, “is foremost about whether the object of abortion is the kind of being to which the moral axiom against deliberate killing applies” (p.140). Among other things, Dyer appeals to Abraham Lincoln’s arguments against slavery and his repeated invocations of the Declaration of Independence that all men are created equal and endowed with unalienable rights. Lincoln’s point, Dyer explains, “was that human status itself was sufficient to give someone a right to be free” (p.150). “And so we end, where we began, with the prevalent comparisons between slavery and abortion, and the parallels between these issues on deep principles of constitutionalism. The central question, involving the deepest principles, is simply, who counts as a member of our political and moral community?” (p.155).
Dyer examines this question in Chapter 7, critiquing a line of philosophical work that makes a moral distinction between humans and persons, and arguing against a performance-based or attribute approach to defining who is a member of the moral community. That approach posits that there are certain attributes – for example, self-consciousness or certain cognitive capacities – that are required for being a person and member of the moral community. Many who [*48] espouse the attribute approach hold that zygotes, embryos, and fetuses do not have the traits required for personhood and thus are not members of the moral community. Dyer critically notes, and many of the philosophers he cites concede, that this may also justify infanticide. Dyer further argues that
[a] coherent defense of abortion requires at least an initial distinction between (and thus fixed definition of) human beings and human persons. But to distinguish human persons from human non-persons is simply to offer a different variation of the same tautology: Persons are those human beings who have moral rights because they have attribute Y, and non-persons are those human begins who do not have moral rights because they lack attribute Y. The relevant attribute, however, is simply posited by people with power. (p.176)
According to Dyer, whether grounded in the distinction between human persons and human non-persons, or based on the claim that the killing of persons is sometimes justified, such defenses of abortion “have in common a rejection of the moral tradition underpinning our shared notions of equality and natural rights. If human beings are equal in a fundamental moral sense, and if human beings really are endowed with certain inalienable rights, then killing in abortion cannot so easily be distinguished from killing in other circumstances” (pp.178-79). Thus, Dyer submits, that “like slavery, abortion’s perpetual existence and political protection threaten to erode the anchoring principles of republican government” (p.157).
Before concluding, Dyer refers to a “final, tragic dimension to the parallels between abortion and slavery,” namely that some pro-life activists use violence in an effort to end abortion and claim “the mantel of nineteenth century abolitionist John Brown” (p.179). Dyer does not defend the use of force to end abortion, stating that one of the ways in which abortion and slavery differ is that resolution of the abortion debate will not be found in violence or armed conflict. Instead, Dyer tries to cement the parallel between abortion and slavery by concluding his book with one of his many appeals to Lincoln, calling on us “to consider again the truth and relevance of what Lincoln simply called the ‘sheet anchor of American republicanism’: a belief, declared in the nation’s infancy, that all human beings are created equal and endowed by their Creator with certain unalienable rights” (p.187). This should apply to all human beings from the moment of conception.
The critique of abortion history put forward in Chapter 5 of SLAVERY, ABORTION, AND THE POLITICS OF CONSTITUTIONAL MEANING is potent. Dyer levels a serious challenge to the established historical account of the emergence of and intent behind abortion restrictions in the U.S. Whether or not Dyer’s alternative reading of the history of abortion regulation is persuasive enough to supplant the prevailing account is a question I will leave to historians to debate. Nevertheless, Dyer’s presentation is worthy of attention and debate, and his challenge needs to be answered. [*49]
Also powerful are key aspects of Dyer’s argument in Chapter 7 defending the claim that the unborn should be viewed as members of the moral community. Dyer engages with a longstanding philosophical and moral debate about membership in the moral community and the parameters for inclusion in that community. That debate has profound implications for considering not only the morality of abortion but also the morality of such things as infanticide, euthanasia, and our treatment of nonhuman animals. As noted above, Dyer’s intervention into this debate challenges those who view membership in the moral community as attribute based. Furthermore, though not new, his argument linking abortion rights and the attribute model to infanticide is forceful. Those who advocate a woman’s right to abortion have to contend with this argument if they are to defend their position. If these arguments are not answerable, then the claims made by abortion rights advocates are put in jeopardy.
These strengths do not, however, offset the underlying flaw of SLAVERY, ABORTION, AND THE POLITICS OF CONSTITUTIONAL MEANING. Framed as “the first book-length scholarly treatment of the parallels between slavery and abortion in American constitutional development” (Book Description, Back Cover), the book’s central argument stands or falls on whether Dyer persuasively makes the case that slavery and abortion deserve such linked treatment.
According to Dyer, the “true resemblance” (p.63) and “unavoidable moral and philosophical nexus” (p.68) between DRED SCOTT and ROE is the Court’s exclusion of some human beings from the community of constitutional persons. The likening of DRED SCOTT and ROE on these lines turns on whether the unborn ought to be treated as constitutional persons or members of the moral community. If the unborn are not members of the moral community and should not be considered constitutional persons, then the cases are far from symmetrical. However, if the unborn are members of the moral community and should be considered constitutional persons then, to be sure, ROE’s exclusion of pre-viability fetuses from constitutional protection and moral personhood has a symmetry to the institution of slavery and DRED SCOTT’s treatment of slaves as non-persons. But this symmetry, if it holds, would be obvious and unnecessary to expose. That is, if the unborn are rights-bearing beings, who would maintain the moral permissibility of treating them as mere property?
More broadly, Dyer contends that slavery and abortion are linked because defenders of slavery wrongly dehumanized African Americans, just as defenders of abortion wrongly dehumanize the fetus, embryo, and zygote. This analogy holds only if it is inappropriate to make a moral distinction between persons and human beings, and, in turn, between those who have the characteristics of personhood and those who do not. And if it is morally inappropriate to dehumanize the unborn or to distinguish between persons and human beings, that stands on its own. Drawing a parallel to the dehumanization of slaves does not provide additional enlightenment.
Most importantly, answering the [*50] question of whether the unborn are members of the moral community or constitutional persons does not require analysis of DRED SCOTT or the concept of slavery. If “the object of abortion is the kind of being to which the moral axiom against deliberate killing applies,” that settles much of the moral debate over abortion. If fetuses ought be deemed constitutional persons, that settles much of the legal debate over abortion. But comparing abortion to slavery and ROE to DRED SCOTT does not illuminate whether the unborn are the kinds of beings protected by moral axioms against killing or the Fourteenth Amendment. Comparing abortion to slavery does not illuminate the parameters for what types of beings have moral status or what characteristics warrant inclusion in the moral community. Nor does comparing ROE to DRED SCOTT enlighten the question of whether the Court wrongly excluded fetuses from protection under the Fourteenth Amendment. In short, the fact that DRED SCOTT and the institution of slavery wrongly permitted the treatment of African Americans as property does not mean that the unborn, from the moment of conception, should be deemed constitutional persons or members of the moral community. At best, the claimed symmetries, if accurate, do not advance the ball.
What is required to answer the question of whether the unborn are endowed with qualities sufficient to make them members of the moral community is the kind of argument Dyer puts forward in Chapter 7. The foundation of this argument, though, has nothing to do with an analogy to slavery. Relatedly, the historical analysis Dyer offers in Chapter 5 illuminates the question of whether the unborn should be deemed constitutional persons. The foundation of this argument, though, has nothing to do with an analogy to slavery or DRED SCOTT. In sum, Dyer makes some worthwhile arguments that speak directly to questions pertaining to the morality of abortion and the historical account on which abortion jurisprudence is based. But those specific arguments are fully separable from and not advanced by the central argument and the bulk of the book.
So why the parallel? What is the point of spending the length of a book drawing out connections between abortion and slavery when, in the end, a critique of abortion and defense of the claim that the unborn has moral and constitutional status do not turn on that parallel?
Dyer’s stated purpose is to bring sober and rigorous scholarly analysis to the slavery/abortion analogy. Because the connection between abortion and slavery is ancillary to Dyer’s argument that all human beings, including the unborn, are created equal and endowed with certain unalienable rights, the slavery/abortion analogy ends up lacking substance. Because the symmetry between ROE and DRED SCOTT is either wrong or, if correct, obvious, it is unhelpful. What is served, then, by drawing out an analogy between slavery and abortion is a rhetorical function. Though Dyer frames the presentation as an effort to bypass polemics, the parallel perpetuates and gives cover to the rhetorical comparisons that Dyer claims he wants to avoid.
REFERENCES:
Luthra, Shefali. 2013. “Activists Rally to [*51] Speak on Abortion Bills.” TEXAS TRIBUNE. July 8. (http://www.texastribune.org/2013/07/08/activists-rally-speak-abortion-bills/).
CASE REFERENCES:
DRED SCOTT V. SANDFORD, 60 U.S. 393 (1857).
GRISWOLD V. CONNECTICUT, 381 U.S. 479 (1965).
LOCHNER V. NEW YORK, 198 U.S. 45 (1905).
ROE V. WADE, 410 U.S. 113 (1973).
SLAUGHTER-HOUSE CASES, 83 U.S. 36 (1873).
Copyright 2014 by the Author, Helena Silverstein.
