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NATURAL RIGHTS/ Gosnell, Law, and Modest First Steps

The Gosnell case shows us that a society’s laws teach: if they teach a lesson of injustice they will corrupt its people over time. By CHRISTOPHER TOLLEFSEN

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Imagine a society, all of whose laws were just, and in which no law essential to the protection of the natural rights of its citizens was absent or deficient. In this society the law is also fairly and efficiently administered.

Then imagine the very opposite sort of society, one whose laws systematically favor some over others, allow unjust discrimination, even to the point of unjust killing, rape, or enslavement of some disenfranchised class of persons, and in which even good laws are unfairly or only occasionally enforced.

And imagine both societies not just at one time, but as they exist over several generations, as children are born and raised under such legal regimes, coming to accept and internalize the demands made or not made, the values recognized or not recognized, by the legal fabric of their society.

Such thought experiments make clear that the law does not simply create a stable pattern of behavior—just or unjust—over time, although it does do that. Rather, the law also creates a culture, and it does this precisely insofar as it instructs citizens about the moral code that will govern them and therefore constitute its cultural outlook and framework. The law, that is to say, teaches.

A legal regime that permits the killing of innocent human life, then, does more than simply permit an injustice against some class of persons: As we have seen in the case of Kermit Gosnell, now awaiting a verdict in Philadelphia on multiple charges of murder and illegal abortion (he was found guilty and sentenced to life prison, ed) , the law teaches the legitimacy of this injustice, and thus erodes its citizens’ understanding of the nature of justice.

In the Gosnell case, of course, the primary “lesson learned” concerns the denial of the moral claims that all human beings are equal, and are not to be treated as things. Thus, the wrongness of the law is not simply a matter of its practical consequences; a permissive abortion law that—somehow—resulted in fewer abortions would still express precisely the wrong lesson to a nation’s citizens. And a citizenry whose culture is founded on a radical misunderstanding of justice is, to that extent, a weakened, and even, for reasons that I will explore shortly, an unfree people.

Modest First Steps

In the face of this double travesty—the wrong done to the unborn, and the misshapen moral norms inculcated by the law to its subjects—what can be done? Hadley Arkes has, over many years, advocated a strategy of “modest first steps” that addresses both of these difficulties.

In Natural Rights and the Right to Choose, Arkes details the progress of two different, and limited, challenges to abortion law: the effort to pass a ban on partial-birth abortion and the Born-Alive Infants’ Protection Act (BAIPA). In partial-birth abortions, the body of the child is delivered and the head left in the birth canal. The skull is then punctured and the cranial matter suctioned out before the head is removed. The ban on partial-birth abortion was to put an end to this procedure. The primary purpose of BAIPA, meanwhile, was to ensure that infants born alive after a failed abortion were to be treated as full persons before the law, and given the protections due to persons.