Book Review: Unborn Human Life and Fundamental Rights: Leading Constitutional Cases under Scrutiny

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.

 

Nick Marr:  Welcome everyone to this Federalist Society virtual event. That's this afternoon, February 28, 2022. We're having a book review and book discussion of a collection of essays called Unborn Human Life and Fundamental Rights: Leading Constitutional Cases Under Scrutiny. I'm Nick Marr, Assistant Director of Practice Groups here at The Federalist Society. As always, please note that expressions of opinion on our call today are those of our experts. We're very glad to be joined by two leading experts in this field, one of whom contributed an essay to this essay collection. I'll introduce our moderator very briefly, and he'll take it from there.

 

      So we're joined today be Professor Robert P. George. He's the McCormick Professor of Jurisprudence at Princeton University. His longer bio can be found on our website. And without further ado, Professor George, thanks very much for being with us. I'll give the floor to you.

 

Prof. Robert P George:  Well, thank you Nick. It's a pleasure to be working with The Federalist Society again. And a special pleasure to be in conversation with my dear old friend, Professor Gerard Bradley of the University of Notre Dame. Professor Bradley is one of our nation's preeminent scholars of human rights, and, particularly, of religious liberty. We're not going to be focused so much on the religious liberty question today. But his human rights expertise is very relevant, of course, to the conversation we're having.

 

      Professor Bradley began his academic legal career at the University of Illinois. Before that, he was a prosecutor. So he has some experience in criminal law, as well, in his native New York. He's a graduate of Cornell University and Cornell Law School. He was graduated with his J.D. from Cornell Law School summa cum laude. Jerry, it’s just such a delight to be with you today, as always.

 

Prof. Gerard Bradley:  Pleased to be with you, Robbie. And thanks Nick and The FedSoc for putting this together. I want to quibble with just one thing you said, Robbie. As I advance in years, I prefer not to be called an old friend of you or anyone else. I prefer to hear me described as a long-time buddy. And to that charge, I'll plead guilty. Robert George has been an inspiration to me for decades, and I value his friendship and professional collaboration. It's one of the great privileges of my professional life and personal life.

 

Prof. Robert P George:  Well, Jerry, the topic we have on the table today, fundamentally, involves human rights. It's the question of the rights of the unborn human being. So the first thing we ought to talk about, it seems to me, is what does it mean to have a human right? What are human rights? I don't mean which particular ones do people have. But what are we talking about when we're talking about human rights?

 

We live at a time when human rights discourse is the dominant discourse in much discussion of ethics and politics. Much of our discussion of justice is in the language of human rights. But when we speak of human rights, if we're to put some rigor in the concept, what does it mean? What are we talking about?

 

Prof. Gerard Bradley:  Well, I think that the most important component or aspect of the concept is the unconditional nature of these rights. And what I mean by that, Robbie, is that we're talking about rights, protections, how people are beneficiaries of the moral and legal duties of other people. But I think what distinguishes human rights, more strictly speaking, is that they belong to, and can be predicated of, human beings, just by virtue of what they are, of their status as human beings.

 

These are rights that do not depend for their enjoyment, you might say, by the possession of a particular ability or set of skills, or any other contingent feature of human persons. But, rather, what could be predicated of human persons, just as such. And in that respect, built into, or baked into the concept of human rights, I think are two things of special importance. One is that they're universal, that they are to be enjoyed and ascribed to anyone who is a human being. And the other is that they are not only universal in their scope, but unconditional in their nature.

 

And I mean by that not to say that every human right is absolute — I don't mean to say that at all — but unconditional meaning that they make claims, human rights make claims on us, they're not matters of convenience to everyone else, that they arise and call for recognition by human persons, the rest of us, as to what is owed to other human beings. And, in that respect, are not at all like applying for membership in a club. They're not negotiable. They really have this kind of fundamental moral traction on us, so that once an individual is recognized as being owed these duties, then there's not much more to say than that the duties must be respected and performed by the rest of us.

 

Prof. Robert P George:  Of course, human rights discourse is universal, in the sense that everybody across the globe these days seems to want to conduct discussions of ethics in politics, discussions of justice, in the language of human rights. But for those of us in the United States, any talk of human rights immediately brings up the founding principles of our country.

 

Probably the first thing to come to the mind of most of our viewers today are those words from the Declaration of Independence, the second sentence of the declaration, "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights, and among these are life, liberty, and the pursuit of happiness." Often, when we discus those words, that principle, when we discuss the Declaration and its claims, we contrast the respect in which people are equal, that fundamental way in which people are equal, from the many ways in which people are self-evidently, one might say, unequal.

 

Human beings are unequal in intelligence. Clearly that's true. They are unequal in athletic prowess, in strength, in beauty, in charm. Obviously, people are unequal in wealth, in social status. There are so many ways in which people are unequal, it causes one to wonder, in what respect could we say that all human beings are equal? And here, the concept of human dignity is often invoked. And I wanted to ask you about that, Jerry. Because the typical answer, including my answer, it's the one I typically give to the question, well, okay, if we have all these inequalities in human experience, in what respect are we equal?

 

      What I want to say, and what many people want to say is, well, we're equal in fundamental worth and dignity. Now of course there are critics of that claim. Famously, Steve Pinker at Harvard is a critic of that claim. He is among those who say the concept of dignity is simply doing no work there. It's a phony concept. It masks something else that must really be going on there.

 

      Famously, in his debates with Leon Kass, Professor Pinker has made this point. And I take that as a serious challenge because Pinker is a serious man. So I'm going to flip it over to you, Jerry, and say, is the concept of dignity actually doing any work there? Can we put any rigor into it? What does it mean? Is it the right answer to the question? In what respect then, in view of all the inequalities of human beings, are we fundamentally equal?

 

Prof. Gerard Bradley:  Well I think it is part of the answer to that question. And I do think the term dignity does work in moral analysis, and, for that matter, in legal analysis. I can think of at least three meanings, relevant meanings of dignity. And I think these are not — not in the slightest bit — exclusive one of the other, but mutually reinforcing.

 

For Christians in particular, and, to varying degrees, other believers, one important meaning of dignity is theological, meaning that we are made in the image of God and that there's a certain dignity and value and status and worth that humans enjoy by virtue of being those beings made in God's own image and brought into being to serve God in this world and to be happy with God in the next. So there's that meaning.

 

      Now, in more, you might call it secular legal discourse, I think a second meaning of dignity is that which is true of those beings who possess this dignity and by virtue of which they are owed certain legal and moral duties. So here we'll leave aside theology and say that dignity refers to that about us, that which makes it the case that we are beneficiaries of rights and beneficiaries of moral duties. So, that, I think, is a matter of being human beings.

 

And I think the defining feature, in this regard, is that human beings are individual substances of a rational nature, and that the key concept there is the radical capacity for a rational existence, free choice, conceptual thought, etc.

 

      But a third meaning, which I think, again, is -- works productively with the other two in mind, to say human dignity really is another way of expressing, in a very shorthand and compressed way, the requirements of practical reasoning, and to express, or a shorthanded way to summarize or to at least name or label those most fundamental duties and justice that we owe to other people. So, to put that differently, there are certain human rights that are unconditional, and, you might say, absolute.

 

That is to say, it is never right, and should never be lawful, to torture a person, to enslave a person, to intentionally kill a person. We might well, I think, usefully, describe those aspects, you might say irreducible aspects of human well-being which are protected by these exceptionless duties, as aspects of basic human dignity. So that, again, here it's just another way of expressing the requirements of practical reason. But one could say to treat someone in violation of their human dignity is another way of saying that a person is being treated in a way that is fundamentally unjust.

 

Prof. Robert P George:  That's helpful, Jerry. And I wonder about the relationship between the first and second categories in your discourse of a moment ago. And I'm specifically wondering whether they might not just be two sides of the same coin. So let me dig into that a little bit.

 

Let's get at it by raising the question of the difference between human beings and other things: animals, non-human animals, plants, inanimate objects. If there's something special about human beings that we're trying to capture with the word "dignity," what is the special thing? What makes us different from, let's say, fairly intelligent non-human animals: porpoises, dolphins, various ape species, pigs? What's the thing about us?

 

      Now let's go to your first category there, which our Jewish friends, I think, would be very quick and right to point out is not anything invented by the Christians. This is the Jewish revelation. This goes all the way back to the beginning of the Bible. It's in the very first chapter of Genesis that the human being is made from dust of the earth, to be sure, just manufactured out of the most elemental materials, but is fashioned in the very image and likeness of the divine creator and ruler of all that is, the very image and likeness of God, that concept of the imago dei.

 

      What does that mean, for man to be made in the image and likeness of God? Well, it can't mean that God has five fingers on each of two hands and hair on his head and a nose, since God, as conceived by religious folk in the monotheistic tradition, is spiritual, not material. So it can't be that. In what respect, then, are human beings godlike?

 

Now, the answer given classically, I think, by Jewish as well as Christian thinkers, is that human beings are godlike in that they possess agency, rationality and freedom, which are mutually -- they require each other. I can only be truly free if I'm rational. I can only be rational if I'm, in some important respect, free.

 

      Now, by free here, I don't -- I'm not referring, as you know, to political freedom, but what's sometimes called metaphysical freedom: freedom of choice, freedom of the will. Now, that freedom will be constrained in lots of ways. And, obviously, we are not God. We may be godlike. But if we're godlike, we're godlike in very limited ways. God, if there is a God, is infinite. We are finite. He is perfect. We are very, very, very much imperfect. And, yet, this Jewish claim, adopted by Christianity as well, is that we are, in some respects, in limited ways, but nevertheless, really godlike.

 

      And that must be because, like God, as conceived by Christians and Jews, we are able to deliberate, judge, choose. We have agency. We can envisage states of affairs that do not exist, grasp the intelligible point, the value, the purpose, the good of bringing them into existence and then act freely on a rational grasp of the intelligible point of doing so to bring such a state of affairs into existence, to choose freely, not to act on the basis of impulse of instinct like a brute animal, even the highest level of intelligence brute animals, but freely, rationally. In that respect, godlike.

 

      Now that account that I've just given, if it's valid, would not necessarily, actually require the affirmation that there is a God. In that sense, a secular person can — and you and I both know secular people who do — affirm the dignity of human beings, human rights, on the basis of human agency, the awesome powers of reason and freedom that they affirm without offering any particular account of, any particular theological account of how those realities, those human realities of reason and freedom come into being, or why we have them, or how we have them, or who gave them to us, or whether there is any more than merely human source of them.

 

      Now, those latter questions are very interesting theological questions. And theists and secularists would disagree about whether we need to answer that question. And, if we do, what the answer to the question is. But the secular account of human dignity that might be given by an advocate of human rights would really pretty much track that second of your points in what you said earlier, and, in doing so, would be the secular counterpart to what — from the religious person's point to view — is your first point, that man is made in the image and likeness of God and that's the foundation of his dignity. What say you?

 

Prof. Gerard Bradley:  I quite agree. I think you're quite right. And believers of various stripes have different expressions and different conceptual resources from within their traditions to describe what, to Christians, and, to certainly a large extent, Jews, would recognize as the sense of saying, as they do, that mankind, humankind, we're the creatures that God made for his own sake. And on at least a further refinement of that in the New Testament would be the sense that human beings can be adopted by God and become kind of made fit for fellowship with God in heaven.

 

      But as to the more secular side of it, or the second of my three aspects of dignity, I think you're quite right. And we do see many people who affirm without reservation the existence of basic human rights and can describe them very much along the lines that you or I, who happen to be believers, would describe them, without the theological apparatus. So I think you're quite right.

 

      One point I would add that I find interesting and, I think, underappreciated in philosophical discourse about human rights and their sources, I just referenced Thomas Nagel's book on Darwinian theory, Darwinian evolution, where --

 

Prof. Robert P George:  -- his book on consciousness. Yeah.

 

Prof. Gerard Bradley:  Yeah. And I'll just refer to it. It's not our main interest. But Nagel, who, I think, is really quite a secular-minded person, is caused to consider, in a rigorous and honest way, the source of the spiritual properties, the rational nature of human persons. By that, he means the capacity of conceptual thought for understanding value, moral value, free choice, consciousness, and even what you might call nous or even a soul.

 

      But Nagel makes the -- comes to the conclusion, I guess, with some reluctance, because, as I say, I don't think he's a believer. But he says these immaterial realities can't be denied. That is, they do exist. And they cannot arise, according to the Darwinian description of evolution. That is to say they can't arise from any evolution of non-spiritual matter.

 

Prof. Robert P George:  Precisely because they're immaterial.

 

Prof. Gerard Bradley:  That's exactly right.

 

Prof. Robert P George:  So the Darwinian mechanism can only work on material.

 

Prof. Gerard Bradley:  Correct.

 

Prof. Robert P George:  That's Nagel's book. And, in fact, I think we can go a little farther. I've read Nagel closely on this. And he says, not only does he not believe in God, that he doesn't want it to be true that there is a God. So he's not only an atheist. He is, in a certain sense, an anti-theist. And yet, he argues, we have the evidence under our noses, right before our faces. We have the evidence of human powers that are not reducible to material and efficient causality. So he doesn't want to move from that to the idea that there is a God.

 

      But that means there is something very special about human beings. Now, the way I've heard some who are in Nagel's camp move on this is to say it's not that man is made in the image and likeness of God. It is that man makes God in his image and likeness.

 

Prof. Gerard Bradley:  Right.

 

Prof. Robert P George:  We perceive, on the basis of our ordinary elementary experience, that we have these extraordinary immaterial powers: deliberation, judgment, choice, conceptual thought, so forth. And then we, in trying to account for them, imagine that there is a God who perfectly embodies them almost like a transcendent platonic form and that we're a kind of image of that.

 

      But look at what's being agreed on here. What's being agreed on is that human beings are extraordinary. They have literally awesome powers that cannot be accounted for by purely material causality. And, therefore, human beings, as the possessors of these literally awesome powers, have a certain dignity, an inviolability, have certain rights just in virtue of their humanity, which was your definition of what a human right is. It's a right you have, not because you earned it, not because of some ability you developed, not because of some test you passed, not because of your strength or beauty or intelligence or athletic prowess or whatever, just in virtue of being human.

 

Prof. Gerard Bradley:  Right. Right. That's interesting. As you say, I think it's quite apt to say Nagel doesn't want to believe in God. Yet, when at the end of the day, at the end of his book, there's really just two possibilities, which he conjures. And I think they are the only two possibilities. Either there is some much greater than human intelligence and source of these immaterial realities, or, in the -- I hesitate to use a Rawlsian expression in this context, but in the original position, that is, at the beginning of the universe, it wasn't just rock and gas.

 

The only alternative — as I remember, in Nagel's argument — to their being some kind of being that we might call God, would be that, in the beginning, the original matter had these spiritual properties somehow built into that original matter, which would be some kind of -- if I understand my terminology correctly -- some kind of panentheist beginning to the universe, the evidence for which, I think is scant. And that's where Nagel leaves it.

 

Prof. Robert P George:  Yeah. I understand. Just to say to listeners, in case people were wondering, Professor Bradley used the distinctive term "panentheist." He wasn't saying "pantheist." That's a slightly different view. He was referring to panentheism, which, along with theism and polytheism and pantheism, is another competitor in the metaphysical competition, in the metaphysical contest. But I'll leave people to their search engines to look up panentheism and its differences from pantheism.

 

      But this, Jerry, now takes us to the topic of the wonderful book that was edited, the collection of essays to which you contributed, that was edited by Pilar Zambrano and her coeditor, our friend, William Saunders, Unborn Human Life and Fundamental Rights. I wonder if listeners noted in your very first contribution to this discussion your reference to human beings as bearers of dignity and human rights as human beings, as substances of a rational nature. That is what gives us our distinctive dignity, our inviolability, makes us special. The awesome thing is not the immediately exercisable capacities for deliberation, judgment, choice, conceptual thought, moral evaluation, and so forth.

 

      Since we have the dignity of our humanity when we're asleep or when we're under general anesthesia or when we're in a coma, it can't be the immediately exercisable capacities, although this view is contested, of course, by some philosophers, famously, Peter Singer, my colleague here at Princeton, Jeffrey McMahon, the very distinguished White's Professor of Moral Philosophy at Oxford. But it seems to me it can't be the immediately exercisable capacity.

 

It must, therefore, be something that you mentioned very quickly in passing, Jerry, and I want to focus on it now: the radical capacities. Radical here equals root, the root capacities for deliberation, judgment and choice. The capacities that we have from the point at which we come into being as human beings and which we retain when we're asleep, we are in comas, when we are under general anesthesia, when we're suffering from dementia, such as Alzheimer's disease and so forth, that we retain, up until the point where we no longer exist. That is, we retain till death.

 

      Now, that is the core of the ethical argument for the inviolability, not only of healthy, alert, awake 19-years-olds, but also of those who are cognitively impaired, those suffering from dementias, those who are newborn infants, who, under Professor Singer's theory, would not be bearers of dignity, would not be persons, but also the unborn and even the newly conceived. If we have our rights in virtue of our humanity, then the only question we need the answer to is who is a human being? Do we have a human being here?

 

      The alternative is to distinguish human beings from persons, which is precisely what Professor Singer and Professor McMahon do, as well as some others. They say, "Well, look, of course, unborn children, newborn children, people suffering from dementias, people of congenitally, cognitively, severely disabled, of course they're human beings. What else are they?" So they don't try to justify abortion or euthanasia or these other things on the basis that there's no human being there or that they don't know when human life begins. Singer has castigated those who claim that abortion is not the taking of a human life, quite rightly. And I commend his honesty.

 

      He doesn't want to fly under a false flag or claim something that's self-evidently false. We know that newborn human beings, cognitively disabled people, people with Alzheimer's disease, unborn children, are human beings. But the Singer/McMahon move is to distinguish human beings from persons and say that while most persons, most human beings, are persons — that is, human beings who were born and have some minimal level of cognitive functioning — some human beings are not persons. Either they're not yet persons, though they may become, or they're no longer persons, so they once were. Or, in the case of severely cognitively disabled human beings, they never were persons, aren't now persons, and never will be persons.

 

      And that, it seems to me, is the real debate over the status of unborn human life. It is not a debate about whether you have a human being. In the case of an elderly person, for whom euthanasia is being contemplated, or a severely cognitively disabled person, or a newborn that somebody wants to get rid of, or an unborn child, we know we've got a human being. It's a question of whether there's a distinction between human beings and persons such that being a human being is not enough.

 

      The human rights claim — and this is why Professor Singer does not endorse the concept of human rights or do business in that language — the human rights claim is that you have rights, fundamental rights: inviolability, dignity, personhood, you might say, in virtue of your humanity. All we know is the answer to -- is the answer to the question is this or is this not a human being?

 

Prof. Gerard Bradley:  Right. Well, I think, as you've described it, you've teed up the argument against the position of Jeff McMahon and Peter Singer, and, I think, the basic strategy for anyone like ourselves and any of our viewers and listeners who would make the argument for the inviolability of human life from conception on. I think we can see that the structure of the argument really has to be that to make the criterion of personhood turn upon something other than radical capacity — upon, for example, the possession of some abilities, or a presently exercisable ability, or some other kinds of achievement — is to fly in the face of the intuition — which, thankfully, most people, in fact, maybe almost all people still have — which is, at least, that once you're born, you count, and that whether you're debilitated or poor, tall, or even in a coma, once you are born, then you count the same.

 

      So one asset in the argument for the inviolability of unborn human life is, I think, the still very, very widespread notion of the sort of universal equality, with respect to the right to life of everybody who is born, no matter what their condition is. And Jeff McMahon and Peter Singer have trouble. Now, they, of course, are honest enough to admit that, well, yes, I'm willing to accept that effect, or that implication by argument. But their argument succeeds in leaving exposed to violence the unborn, but at the price of exposing, you might say, to violence, quite a few people who are already born and are amongst us, even some people who are walking around.

 

      Now, to make the argument, to take on their argument, which I think is the strongest argument against the position that people from conception on have an inviolable right to life, I think we have to take on the proposition that, as they, I think, would agree, there are some, and, in fact, many, unique living human individuals, who actually are not persons, or, if they don't want to use the word person, are not rights-bearing human individuals.

 

Now that introduces -- I think that means that some of us are not, we're not our bodies. That is to say, we, you, I, Nick Marr, did not begin when our bodies began, which surely did happen at conception. But you or I, Nick Marr, Harry Blackmun, you name it, came to be sometime after conception. And I think the second part of the argument against that position is to try to challenge your interlocutor to name a non-arbitrary point where we came to be. That is to say, if we didn't come to be when our bodies came to be, and our bodies came to be at conception with the radical capacity for rational life, then when did --

 

Prof. Robert P George:  -- That's what rational nature means. A substance with rational nature.

 

Prof. Gerard Bradley:  Rational nature, so when did we come to be?

 

Prof. Robert P George:  [CROSSTALK 00:33:12] has those radical capacities for deliberation, judgment, choice, conceptual being.

 

Prof. Gerard Bradley:  Right. And I don't think that there's a coherent, or at least satisfying, answer. That is to say, when did we come to be, if not at conception? I think birth and viability are particularly inauspicious candidates for that. To think that birth marks --

 

Prof. Robert P George:  -- and Singer agrees with you about that, Jerry.

 

Prof. Gerard Bradley:  Yeah.

 

Prof. Robert P George:  Singer and McMahon are the first to say birth is arbitrary. And that's why both say, look, if you accept abortion, as they do — a general right to abortion, elective abortion — if you accept it as they do, then you're committed to accepting the moral permissibility of infanticide, not just for severely damaged newborn babies, but for any baby that a parent doesn't want. You obviously are also committed to the idea that there's nothing, in principle, wrong with killing cognitively disabled people.

 

Now, those on the Singer/McMahon account are human beings who are never persons. So there's a body but not a person. They may be 19 years old. As you say, they could even be walking around, though severely cognitively disabled. And they are not persons. There's a body without a person there.

 

And, of course, I and Patrick Lee and you and John Finnis and others who are writing today have offered our own philosophical criticism of this concept of the separation of self and body. Patrick Lee and I have done that in our book, Body-Self Dualism in Contemporary Ethics and Politics.

 

We just don't think that a credible attenable philosophical argument can be made to justify that dualism of person and body or self and body, the idea that the body is -- that the self is something other than the body that merely inhabits the body, that we are ghosts in machines, persons inhabiting bodies, if there happens to be a person inhabiting that body.

 

Prof. Gerard Bradley:  Yeah.

 

Prof. Robert P George:  Jerry, I want to now move to your particular essay, the contribution you made to the book, which will take us into an interestingly different subject. I should say to our viewers that the book includes contributions from scholars from a number of different countries — Canada, Spain, Ireland, some of the Latin American countries — talking about the legal status of unborn human beings, unborn human life in those countries. And a lot of the essays explore the question of the regulation of attacks on unborn human life, in as much -- insofar as it is a question handled by, in this or that particular country, the legislature or the courts.

 

      So there are some important and valuable essays there. We're not going to have time to talk a lot about them. But I do want to turn to Professor Bradley's own essay, which is about the United States. He's the American representative in the book. And, of course, right now, we're talking about the subject, when the Supreme Court is on the verge of reconsidering, in fact, it's in the midst of reconsidering, it's already heard oral argument reconsidering its 1973 decision in Roe V Wade, invalidating abortion regulations, the protection of human life before birth in the states, but with a view to possibly, significantly, altering that decision. Or, as I have been predicting, completely overturning it and returning the question of regulation to legislatures.

 

      It has been handled since 1973, essentially, by courts in the United States. There has been some room for legislative movement here at the margins, with various efforts that can be made to limit abortion or protect unborn life, just at the margins. But if the Court does what I'm predicting it will do, it will mean that the matter returns now to the states. It won't mean -- it's very important for participants to understand this. If the Court acts as I predict it will act, it will not mean that abortion goes from being lawful in the United States to being unlawful.

 

      It simply means the question now will be in the hands of the legislature, first, the state legislatures. And then the question, will Congress, pursuant to its authority under Section V of the Fourteenth Amendment to enforce the guarantees of Section I of the Fourteenth Amendment, the due process and equal protection of the laws guarantees, will Congress move in?

 

      But Jerry, why don't you talk a bit about that contribution that you made, and especially your treatment of the question of third-party homicides against unborn children, and the prosecution of people, not for abortions, but for causing the death of an unborn child in the case of an assault on the mother?

 

Prof. Gerard Bradley:  Well, surely, Robbie. And, as a matter of fact, at least according to the news reports I saw this morning, apropos a point you were just making, I think the Senate is scheduled to vote tonight on the Women's Health Protection Act, which will not pass the Senate, I'm assured, but would make it, as a matter of national statutory law, would, they say, codify Roe, which is not exactly correct, since it, in some ways, it goes even beyond Roe v. Wade and the judge-made law of abortion.

 

      But the Senate is considering, this evening, unless something has changed in the last couple of hours, statutory protections of a right of access to abortion, which would be good in all 50 states. And that attempt at lawmaking is predicated both on Section V and on the Commerce Clause, as a matter of fact. So that's been teed up and is really a -- it won't pass this time, but is worth watching.

 

      Now, my chapter contribution to the Saunders-Zambrano volume focused on the anomaly, the puzzle, even, of feticide laws -- the generic term, not meant in any technical sense. Or you could say laws that focus upon the killing or the homicides concerning unborn victims. Thirty-eight states have some sort of a feticide law, as well as there's a feticide law in the federal jurisdiction, the Unborn Victims of Violence Act, passed during the Bush administration.

 

      And my interest in this argument — and I'll describe my argument briefly in just one minute — arose in connection with the federal Unborn Victims of Violence Act. I had the privilege of testifying in Congress two or three times on that act. And, in short, it says, the act styles itself that it could be called Laci and Conner's Law. And it's a federal law, in essence, making a criminal homicide of the same proportion and severity, the killing of an unborn child, compared to the mother. So, to put it differently, in a case like Scott Peterson, who killed both his wife and his unborn child, Laci and Conner, he's in California prison for two murders. And that's pretty much what the federal law does.So what triggered some interest in an argument I make with some care in this volume, was my testimony in Congress. And I described it as an anomaly. And I put it this way, that, under federal law, the law that we were then testifying about, and which Congress passed, and which is the law now, here is the situation. The human person is protected from the moment of conception against being intentionally killed, or any other way criminally killed or harmed. And the unborn child enjoys exactly the same protection against violent acts that everyone else enjoys — you, me, Congressman Nadler, Senator Schumer, you name it — the same, except for the lethal actions of that child's mother.

 

And I said that if this strikes anyone in the room as anomalous, the anomaly lies with Roe v. Wade, and not with our thinking about homicide. So feticide laws protect the unborn just as they protect anybody else, except with regard to abortion. Now the abortion reservation has been mandated, really, by the Supreme Court in Roe v. Wade. If Roe v. Wade goes off the books in June— late June of this year, as you predict, and as I think it will — then that reservation is no longer compelled by constitutional law.

 

So the question will then be, what will protect -- what will prevent state legislatures at that point, after Roe is overturned, how will state legislatures in California, for example -- let me put it this way, how will California continue, after Roe, to make it murder for Scott Peterson to kill his unborn son? At the same time, in California it would be entirely within the rights of the mother to kill the same child.

      Now, that inequality of protection, once Roe is removed as an artificial or arbitrary stipulation in favor of the mother, that anomaly, aberration, will become open and glaring. And I would suggest that there's an equal protection argument in any place like California which protects the unborn against everybody but that person's mother. How is it that when the unborn child is killed by its father, Scott Peterson, it's never justified in law? But if the mother should kill the same child, the norms of justification don't even apply. And I think after Roe is removed as a prop for that artificial distinction, then I think there's a real equal protection argument.

 

Prof. Robert P George:  Jerry, the one argument that I can think of with any remote plausibility to make that anomaly go away is to treat abortion, not as the right to kill the unborn child, but rather as the mother's right to evict the child from her womb as an uninvited trespasser.

 

Now, that would require that you embrace a really radically individualistic idea of human relationships and responsibilities of a sort of individualism that is ordinarily treated by folks on the left as anathema, one that dissolves human bonds, dissolves responsibility of people for each other, and so forth. But, yet, perhaps in a last-ditch effort to save the right to abortion, they might embrace that argument.

 

      It was famously made in 1971 by the MIT philosopher Judith Thomson, Judith Jarvis Thomson. And her version of the argument was colorful and interesting. She said, "Imagine that you wake up one morning and you find yourself attached by a cord, kidney to kidney with a famous violinist. Turns out he's had kidney failure. You've been kidnapped. You've been put in bed next to the violinist. The cord is from your kidney to his kidney, keeps him alive."

 

"Now," Thomson says," it can't be the case that you are morally required, and it certainly shouldn't be legally required, to stay attached to the violinist for nine months. Let's say that the violinist could recover in nine months, but it's going to take nine months. You couldn't be required to stay attached. Now, if you choose to stay attached, in order to preserve the violinist's life, then you're a good Samaritan, and, indeed, a very good Samaritan. But you're not required to be a good Samaritan. That's an act of supererogation, if you perform it. You have every moral right, and you should, of course, have every legal right to detach."

 

Now she says, "Now look, I'm not saying you have a right to order the death of the child. So if the child survives, you don't have any right to kill it. The right to abortion is not a right to a dead fetus. The right to abortion is a right to evict a fetus, the child developing in the womb, from the womb." Thomson herself says, "We have to admit that from a fairly early point you've got, not only a human being, but a person." So she doesn't want to go down the Singer/McMahon path. And that was available, in those days, from the philosopher Michael Tooley, who was making a kind of argument that Singer and McMahon make.

 

So this was familiar to Thomson. In fact, Tooley had an article that appeared in the same issue of Philosophy & Public Affairs, the journal that Thomson's article appeared in, as I recall. But what about that argument, Jerry?

 

Prof. Gerard Bradley:  Well, it is, you're quite right. Thomson, really, I guess, to her everlasting credit, wants to argue the matter out, and does attempt to argue the matter out in 1971, as an investigation into the precise contours of justified killing. That is to say, and as you are suggesting, she's not offering up an argument, you might say, for abortion license by virtue of the fact or judgment that the unborn simply don't count. In fact, for argument's sake, she takes on board the view of her pro-life interlocutors that you have an individual, a human individual who's entitled to the protections of law. But her argument is that it's an exaggeration, an unwarranted exaggeration of the scope of unjustified killing to say a woman can't have an abortion.

 

      Now, about that, I would say a few things. One, I think that, in truth, that is really where the argument goes and where it stays, once we establish, if we can establish, that the unborn have rights. That is to say, what we're talking about with Dobbs and reform of the law in the wake of Dobbs, if Dobbs should overrule Roe --

 

Prof. Robert P George:  -- Dobbs being the case currently under review at the Court. [CROSSTALK 00:48:22]

 

Prof. Gerard Bradley:  Yeah. Yeah, Dobbs is the case under review. And I think you might say the beachhead that pro-life persons have tried to establish over the years is to do exactly what Thomson takes for granted, which is to examine abortion through the lens, or according to the criteria of justified killing of a human being. She takes a view, as you've described, that it can be a form of justified killing for the woman, just as it would be to evict the violinist. I'll leave aside qualifications that might be offered in a fuller response to your question, Robbie, about whether the analogy is just right.

 

In any case, as most cases, it's not correct to analogize pregnancy to this uninvited sudden eruption of a violinist who you discover in your bed the next morning. But I do think that I would say this, that Thomson's argument, I think, gains its rhetorical force by taking a view of the matter that I would describe as one of sort of sovereign prerogative. That is to say, it's my body, and I can decide what happens to it. And nobody really can decide that I have to share my body. I don't think -- although that has a certain rhetorical appeal or plausibility, I actually don't think that's correct, as a moral matter.

 

I don't think it matters how anyone, all of us, any one of us, finds ourselves in a relationship of dependence with a helpless individual, whether that person climbs into a lifeboat that we're already inhabiting, or whether someone drops a baby on the front door of our house, whether there's an unexpected pregnancy, I don't think that the key question about the fairness of using lethal force against another person depends upon how that person crossed our path, and that even if it were the case, or to the extent it's the case, that we find ourselves suddenly saddled with an unwelcome dependent person, I do not think it's morally sound to say, "Well, by virtue of that person being an intruder, I have no particular moral obligation, and, in fact, the law should treat me, or give me the authority to eliminate that intruder.

 

It would be a little bit like going back to, in American and English law, to spring gun cases that we studied in torts, where the idea there was, look, it's my yard and it's my garden. And while I'm not here I don't want anybody poaching, so I'm going to set up a spring gun. And if it kills some kid who wanders in to pick a daisy, then so be it, because they don't belong there.

I actually think that's morally unsound. And I do think that, thinking even as the violinist as someone who deserves to be separated or cut off, I think is morally unsound.

 

The question about what our obligations are to people who are dependent upon us, in fact, for their well-being and even for their existence is a question of justice. And what is required by justice when those relations arise is at times a difficult question to settle. But I think it's a matter of applying the golden rule.

 

Would one, if one could imagine oneself being the dependent partner in a two-person relationship, whether it's the violinist or a person who has struggled to climb into your lifeboat, or an unborn child, if you were that individual, would you think it's fair and fitting that you simply be thrown overboard or cut off? And that's what I mean by saying applying the golden rule. So the requirements of justice are not disposed of in quite the way that I think Thomson describes.

 

Prof. Robert P George:  Well, of course there's a vast body of literature, defenses of Thomson by distinguished philosophers like Frances Kamm, criticisms of Thomson by Jerry Bradley, for one, but also Frank Beckwith, Patrick Lee, many others. One point, though, that I'd raise, Jerry, is my own recollection from law school is that we were taught that there are areas in which parents have particular and special responsibilities to their own children, responsibilities they don't have, for example, to other people's children.

 

You can't, with impunity, go kill other people's children or harm other people's children. Certainly not. But there are some things that you don't have to affirmatively do for other people's children that you'd do for your own. For example, if I recall correctly, and you can check me on this, in the United States, unlike European jurisdictions, we don't have so-called good Samaritan laws. If a child is drowning in a pool of water and you're walking by as an adult, a morally virtuous person, especially if there's no significant risk to himself or herself, would get in there and rescue that child.

 

      But my understanding of U.S. law or most U.S. laws that most states, you can't be prosecuted for failing to do that good thing. You're a very bad person if you fail to do it. But you can't be prosecuted, unless it's your child. If it's your child, the special responsibilities that you have to your own children prevail. Am I remembering that correctly? It's been a long time since law school.

 

Prof. Gerard Bradley:  No, I think you're remembering it correctly. Yes.

 

Prof. Robert P George:  Yeah.

 

Prof. Gerard Bradley:  So the unique -- I should stress or add that I agree with Thomson that the question presented by abortion, the question of abortion is a matter of justified killing. And I do think, also, that the pregnant woman is in a unique position, vis-à-vis this unborn child, and that the question of her justified use of lethal force, or, that is to say, her justified resort to an operation to terminate her pregnancy, foreseeing, certainly, that the baby would die, that's a question of justified justification, which has no correspondence with any other person, so that applying the norms of justified killing to the case of pregnancy raises unique subquestions and nuances, and that a woman's moral deliberation or the range of choices available to her as a moral, and, in turn, legal matter, I think are broader than for anyone else.

 

I think, under any sound view of the question, Scott Peterson would never, ever have lawful justification to kill his unborn son. And at least there's a discussion to be had about the scope of a woman's lawful justification vis-à-vis the child within her, only because the child is in a position as being resident within her body, to present some threat of harm to that woman.

 

Prof. Robert P George:  Yes. And here, of course --

 

Prof. Gerard Bradley:  That makes for a --

 

Prof. Robert P George:  -- yeah, historically, American law. The law struck down by Roe v. Wade always permitted acts that resulted in the death of the unborn child if they were necessary in order to preserve maternal life. That was built in.

 

Prof. Gerard Bradley:  Yeah.

 

Prof. Robert P George:  Even moral and religious traditions that had firm protections for unborn human life allowed, for example, that if a woman is carrying a child and she develops a uterine cancer that is threatening her life, and it's before the child can be delivered, before fetal viability, where removing the womb will result, unavoidably, in the death of the child, the Catholic tradition, other traditions, held that that was nevertheless permissible.

 

There, the object of the choice is not getting the child dead. The object of the choice is to preserve maternal life with the death of the child being a foreseen and regrettable but acceptable side effect. There are, of course, other questions to be gone into here. I wish we had more time. And those are the questions of obligations that we have to women, especially women who are in difficult situations with pregnancy.

 

There is a very important question of the obligations of fathers to their children, and not just mothers that have obligations. Fathers can, in my view, rightly, be held responsible financially for their children, can't be let off the hook on the ground that, well, the woman could have gotten an abortion. Although, if you permit abortion, it obviously is going to raise this issue of resentment if a father has no choice about whether the baby's born or not and then is required to provide financial support.

 

Many fathers would say, well, it shouldn't be up to me. She had the choice about whether to have the child. She had the child. It's her financial responsibility. But there are important questions, not just about women, but about men's responsibilities to women and to the children that they sire. And I wish we had more time to go into those.

 

      Brother Nick Marr, we've invited questions from the audience. Are there any questions in chat? I'm not seeing them up here, but maybe they're coming in, Nick, to you, without my seeing them.

 

Nick Marr:  I don't see any yet, but if everyone has a couple more minutes, maybe we can take one or two audience questions.

 

Prof. Robert P George:  Well, we have a couple more minutes, if anybody does want to submit them.

 

Prof. Gerard Bradley:  [CROSSTALK 00:58:17]

 

Prof. Robert P George:  J.B., I should point out -- go ahead J.B.

 

Prof. Gerard Bradley:  Yeah. Well, while we're waiting for questions, and I hope there are some, to say a further word about the Saunders-Zambrano volume, as you described it, it's a collection of essays from leading law professors, some legal philosophers. But I should stress for our viewers that it's a book written by lawyers for lawyers. One if its many strengths — this is the Zambrano-Saunders volume — is not only its breadth. It is covering Europe, Eastern Europe, Western Europe and Central and South America as it does, and also Canada and the United States. But it's really quite useful insofar as it describes, the authors describe in detail the different paths that the national jurisdictions have taken to their present state of play, vis-à-vis abortion.

 

And the differences among those national paths are quite interesting and enlightening, as are some of the similarities across legal cultures. But it's a book written for persons interested in the intricacies, or at least the legal, analytical moves that have produced abortion law in these various jurisdictions, which, in these various jurisdictions, the abortion laws that are under investigation are, by and large, quite permissive. So it has that great value. And it also has a concluding reflection, at least a short chapter, by Robbie's former professor, my former colleague, John Finnis --

 

 

Prof. Robert P George:  -- A magisterial piece, magisterial, I'd say.

 

Prof. Gerard Bradley:  -- which itself, is just a -- I think it's worth, it's worth a read.

 

Prof. Robert P George:  Yeah. It's worth the price of the book. Jerry, we do have some questions that have come in. We only have a very short period of time to answer them. Let's get right to them. There's one here that's for me. "Professor George," -- but I'd like your answer as well. "Professor George, do you think Dobbs," that's the case currently before the Court reconsidering Roe v. Wade, "will be 6-3 or 5-4?" I've already said, I'm predicting that the Supreme Court will overturn Roe v. Wade. And I'm going way out on a limb to say that I believe that it will actually be 6-3.

 

A lot of people are skeptical of that, even some people who think that it will be overturned, Roe will be overturned, are skeptical of my claim that it will be 6-3. And I could turn out to be completely wrong here, of course. But here's my reasoning. Justice Roberts clearly understands that Roe against Wade was incorrectly decided. He's made that clear many, many times.

 

The question of whether to uphold it, for him, is a question of whether the precedent, the precedential value, what lawyers call stare decisis, requires that the case, which has been on the books for years, and years, and years, be upheld. I think, when he's considering that, one of the things he's going to be thinking about, especially if there are already five justices to overturn Roe, is who he wants to write the decision.

 

      If he does not join the majority, that will mean that he will lose the right to assign the case, assign the majority opinion, to himself or to some other justice in the majority. And, in that case, it would go, that right to assign the opinion would go to the senior-most justice in the majority. That would be Justice Thomas, Clarence Thomas. There's no question about how Clarence Thomas is going to come out on this case. He's made very clear how he's going to come out on this case.

 

And I suspect that if he has the right to assign the opinion, because the Chief Justice is not in the majority, he will assign it to himself. If he assigns it to himself, it will be a barn burner of an opinion comparing Roe v. Wade to the worst embarrassments and injustices and marks on the conscience of the Supreme Court going all the way back to Dredd Scott against Sanford, reading a pro-slavery concept into the Constitution; to Plessy against Ferguson; to the Korematsu decision interning Japanese Americans with no due process, against their due process rights; Buck v. Bell, the embarrassing famous case in which the Supreme Court upheld the mandatory sterilization of some women.

 

Thomas will write a barn burner. And Chief Justice Roberts knows that. And I suspect he would not want such an opinion to be the opinion of the Court, which would incentivize him to keep control of that opinion by joining the majority and writing a more modest, less inflammatory opinion. Jerry, do you have a view on that?

 

Prof. Gerard Bradley:  No. I agree. I think, I have no doubt whatsoever that Chief Justice Roberts all along has been willing and without hesitation to join a decision upholding Mississippi's law. I rather suspect that if it turned out he were the prospective fifth vote to do so by overturning Roe, I think I would hedge my bets. But, especially from the oral argument and a couple of exchanges between Brett Kavanaugh, and actually, lawyers for each side, and leaving aside other evidence of what Brett Kavanaugh thinks and might do in the oral argument, I've come to the conclusion that Brett Kavanaugh is prepared to vote to overturn Roe. And I don't think that John Roberts will hesitate to be the sixth member of that majority, even if I'm right in suggesting that he would hesitate to be the fifth vote to do so.

 

Prof. Robert P George:  Jerry, I wish we had time to go into the very interesting question, to go back to the Judith Thomson analogy with the violinist, the very interesting question of the challenge that both sides now put to each other, coming out of the debate over mandatory vaccination and the question of whether you can have an imposition on somebody's body, forcing them to take a substance into their body for the sake of protecting the life of somebody else. There are charges of hypocrisy going both ways there that are interesting.

 

        But back to the questions we have. So, Sarah asks, "If medical advances make it extremely possible that the mother and child could live and even the child could be separated from the mother early and live, then would pro-choice precedent change?"

 

        Well, we do know that viability, which at the time of Roe v. Wade, was at around 24 weeks, the so-called borderline between the so-called second and third trimesters of pregnancy and gestation. That's now back to 22, and maybe even a little under 22 weeks, in the sense that babies have survived, with care, before that. And there's no reason, in principle, to think that it can't be pushed back even further.

 

So, as artificial amniotic fluids are developed, and things like that, to deal with the problem of pulmonary development, which has been the real obstacle to significant pushback of fetal viability, you can have exactly the situation that Sarah is here anticipating. That would certainly have implications for the Thomson argument. Now, it would not have implications for people like Peter Singer or Jeff McMahon or the typical so-called pro-choice individual who argues that a child before birth is not really a human being.

 

Now, that's scientifically absurd. But you still hear that. You'll still hear people making the old Mario Cuomo argument that we don't know if abortion is killing a human being. We don't know when life begins. You would think that they would take it — if not from people like you and me — from people like Peter Singer and Jeff McMahon, who obviously know what they're talking about, that that's a really silly idea. But it's still what people, in many cases, say, I think, believe. But if they say and believe that, then the development of this technology wouldn't make any difference to them. Am I right, Jerry?

 

Prof. Gerard Bradley:  Yeah. I think so. I don't know anything more than you do or our listeners do about Justice Barrett's question, which seemed to have hit a third rail with the pro-choice lawyer. Again, even though we were colleagues for years here on the Notre Dame faculty, I have no inside knowledge whatsoever. But Justice Barrett did ask a question that raised, I think, the same issue that the questioner is raising when she asked about safe harbor laws and the now-realistic possibility that a baby born can be dropped off at a hospital or a foundling at the fire station.

 

And the reason why I bring it up is this. Indeed, it did hit a third rail. And I think it cut to the heart of the matter, within the pro-choice camp, and really illumined the difference between persons who thought of abortion as simply, you might say, terminating a pregnancy and those who think of abortion as really the opportunity to simply not not be a parent, meaning — and I think this was part of the reaction, this was baked into the reaction, that hostile reaction — that it was really an imposition and a burden, an oppressive one, upon a woman to make her live with the knowledge that she had a child, although given up for adoption.

 

So this matter about what if the alternatives were available to make it possible to save the baby and also to save the woman, that, I think, is really an unresolved matter in the pro-choice camp. And I think Amy Barrett kind of hit a nerve there.

 

Prof. Robert P George:  Jerry, Edward Jacobs asks, "Do you believe courts should extend the equal protection clause to protect the lives of the unborn?" You and I are both on the record as saying yes to that question. And this gives me an opportunity — thank you, Mr. Edward Jacobs — an opportunity to provide an advertisement for the amicus curiae brief that John Finnis of Oxford University and the University of Notre Dame and I submitted in the Dobbs case, in which we make an originalist argument for the status of unborn human beings as persons under the Fourteenth Amendment.

 

We marshal evidence from medical, as well as legal materials, from the early- to mid-19th century to support our claim, which I actually think is a knockdown. If you look at the evidence that the unborn, by the time of the ratification of the Fourteenth Amendment — which includes, of course, the Equal Protection Clause — by that time, everyone understood that we'd gotten the basic facts of human embryology, which began to reveal themselves with the discovery of the mammalian ovum by Von Baer in about 1827.

 

By 1868, everyone understands that you've got a living member of the species homo sapiens. You can have a human being. They understood human being to be persons, because nobody was holding the Singerite or McMahonite view that there's a distinction between human beings and persons, and some human beings aren't persons.

 

        So we think there's a knockdown originalist argument, not just an abstract moral argument that the unborn are protected by the Equal Protection Clause of the Fourteenth Amendment, properly understood. Now what the implications of that should be for the authority of Congress and the courts of the matter is, itself, another debatable question. It seems to me that the best outcome would be for Congress, acting pursuant to its Section V authority to enforce, by appropriate legislation, the guarantees of Section I, including the equal protection clause of the Fourteenth Amendment.

 

The ideal situation would be for Congress to act there. But I think the courts would also be within their authority in not completely taking over the question of abortion regulation, because there are the non-elective abortion cases, which I think have to be handled legislatively, the life of the mother, severe threats to the health of the mother, and so forth, mercifully rare, but nevertheless are there, and, I think, have to be dealt with, and would be properly dealt with legislatively and not by the courts. Jerry, are we on the same page there, roughly?

 

Prof. Gerard Bradley:  Yeah. I agree completely that the unborn count. People begin at conception. And the Fourteenth Amendment protects any, that is, all, persons. I should stress, for the benefit of our viewers who have not seen the brief that you did with Professor Finnis, maybe a few viewers are not even aware of it, but it's available on the Supreme Court website. I think its significance in this longstanding argument over abortion and the Constitution, I think it's significance can hardly be overstated.

 

I say, nonetheless, that the position you defend will not be adopted by the Court in Dobbs. It's just a bridge too far. It would be leaping over -- and I hesitate to say merely overruling Roe, but it would be leaping over overruling Roe and adopting what I do take to be the correct position, the one that put the Constitution on the side of unborn life. I don't think the Court's going to adopt it. In fact, I know it will not. I daresay it's destined to play a decisive role someday, I hope, I think.

 

I think in Dobbs it is not unrealistic to hope, and even to expect, that a concurring opinion by one or two justices — could be Sam Alito, could be Clarence Thomas, depending on who writes the majority opinion — will take note, take the measure of the Finnis-George brief, and, you might say, encourage the retention of the thought and the further deployment of the argument in not only lower courts, but in legislatures throughout the country -- I mean legislators from all 50 states are under a constitutional obligation to provide equal protection of the law for all persons.

 

So I say that this time around, your brief is destined, I think, to be noticed. I think it will be noticed. But its importance should never -- its prospective importance should never be limited to what judges might or might not do with it. Because, especially for the foreseeable future, the fate of abortion, which means the fate of unborn children, is going to be in the hands of 50 or 51, including Congress, legislatures. And this argument should be made with great earnest and force in those legislatures because those men and women are under this obligation, no matter what the Supreme Court says or doesn't say.

 

Prof. Robert P George:  For anyone viewing who would like to read our brief, as Jerry said, it's available on the Supreme Court website. It is also coming out with substantial additional evidence. For a legal brief you have a word limit, for an article, you don't. So we're bringing out the brief with still more evidence supporting our fundamental claims as an article in the Harvard Journal of Law & Public Policy. So I would encourage you to look for that article, which will be out soon. Again, it's by John Finnis and myself, Robert George, forthcoming in the Harvard Journal of Law & Public Policy.

 

We're getting very near the end of our time, Jerry. J.E. Madigan, I'm guessing that's my friend and colleague, Janet Madigan, "If Roe is overturned, do you believe these questions relating to the rights and responsibilities of mothers and fathers will immediately become ripe for deeper consideration?" Yes.

Prof. Gerard Bradley:  Yes. Absolutely.

 

Prof. Robert P George:  No question about that. I think you're going to have a lot of issues that are going to have to be handled legislatively. Now, a lot of legislators, both federal and state, are not going to like that. I think they have been happy with the Court doing the work here, and taking the responsibility and being accountable up to the extent that unelected people are accountable. Legislators often want to shirk their accountability and their responsibility. This is going to put it right on their laps. Great question from J.E. Madigan. It's going to put it right on their laps.

 

        Now, let's see, very quickly. "Thank you. In light of," this is from J.C., but I don't know -- oh, Josh, Josh. "Thank you. In light of your great discussion of the philosophical aspects of personhood, could you speak to how or whether those concepts are captured in the common law or constitutional understanding of persons, particularly with respect to the unborn child?"

 

        Yes. I've already spoken in response to another question, as has Professor Bradley, to the constitutional aspect of that question. So, yes, indeed we do. I believe that, as a matter of constitutional law, the unborn are persons under the Fourteenth Amendment, properly interpreted. But Jerry, there's also a common law issue here. You had common law prohibitions of abortion going way back, so, before we even had the development of modern embryological science, before the point where we really understood what was going on, when we were still stuck with the old Aristotelian biology.

 

But even in the common law, my recollection is that the obligation of the state was to protect life, from the first stirrings in the womb, from the first stirrings in the womb. So there was uncertainty and some error in our understanding of how conception worked, how early embryonic development took place.

 

But the concept was, once you have a human life, then you've got legal protection. So whether it had the science right is separate question. It didn't. but did it have the moral question that continues to be embodied in our law right. That is, if you have a human being, do you need legal protection? Do you have something that entitles you to protection? The answer is yes. Do you agree, Jerry?

 

Prof. Gerard Bradley:  I would agree completely. And it's quite remarkable, not only in the history of the common law, but the history of statutory reform of the common law in the United States, beginning in the mid-19th century. Whenever I go back and read a secondary account of those developments by legal historians, constitutional historians, it's really quite striking, and, I suppose, gratifying, to see the zeal and rigor and commitment that was brought to bear precisely to protect unborn human persons from the moment that the evidence indicated the presence or that human individual.

 

There's a kind of unqualified zealousness in this reform movement that's quite, quite gratifying, and indicates a kind of unqualified but sort of unreserved, untampered commitment to protecting the most helpless among us. And it's really quite encouraging to see that. And what you do see in the statutory reform movement in the mid-19th century is a tandem movement.

 

You can see -- this is speaking a bit metaphorically, but you can see state legislatures in the United States just at the minute they come to recognize more about the science and come to see that people really do begin at conception. You can see them moving immediately, immediately to change abortion law to extend the protection of abortion laws all the way back to conception. And that's just an example of what I mean by there's uncommon zeal.

 

Prof. Robert P George:  Yeah. You find this documented not only in John Keown's famous book, Abortions, Doctors, and the Law, which is a treatment of the common law, mainly focused Britain, published by Cambridge University press, but also in James Moore's book, Abortion America, Moore being somebody who is politically on the pro-choice side, but who, to his credit, reports, quite accurately, that it was developments in modern embryological science that led the American Medical Association to take up the cause of further protection for unborn life, to take it all the way back to conception, which is where you have it with the 19th century statutes.

 

        Before that, and before the development of modern human embryology, common law jurisdictions differed in some respects. Some common law jurisdictions did not prosecute abortion prior to quickening. Quickening is not viability. It's the period at 16-17 weeks when a mother feels fetal movement for the first time. Others did not have that limitation.

 

But where the limitation exists, as Keown is showing, Professor Keown at Georgetown is showing, it exists because pregnancy, establishing pregnancy is an element of the crime of abortion. So the prosecutor is prosecuting the abortionist, not women who are prosecuted, by the way, historically, in America, it's abortionists. In prosecuting the abortionist, the prosecutor has to put on evidence of pregnancy. And it's the quickening that is the evidence of pregnancy.

 

        We've got one more question. "If Justice Roberts retains" -- this is from Joseph Cosby. "If Justice Roberts retains the ability to assign an opinion overturning Roe, why wouldn't he assign it to Justice Barrett? In that circumstance, wouldn't he rather have the opinion written by a woman, especially since Justice Barrett has shown herself to be measured in the way she writes and approaches cases?"

 

        I think that's a good point. And he might very well, he might very well do that. I think the key thing he will want to do is make sure that Justice Thomas isn't in a position to write the opinion. Because Justice Thomas feels very passionately about the issue, and especially its relation to historical injustices, such as those of slavery and segregation perpetrated against African Americans, also those against disabled people, or putatively or allegedly disabled people, as in the case of Bud v. Bell or other ethnic minorities, as in the Korematsu case depriving innocent Japanese and Japanese Americans of their due process rights and putting them in internment camps in World War II.

 

        Nicholas Marr has very kindly provided a brief, I'm sorry, a link to our brief, a link to the amicus curiae brief that I did with John Finnis. It's up in the chat. I think you can copy that. So you'll have it when the session closes. Nicholas, thank you for doing that. And thank you for the opportunity to appear under the auspices of The Federalist Society. And, above all, my thanks to my dear longtime friend, Jerry Bradley, for, as always, his illuminating discussion of important issues. Thank you, Jerry.

 

Prof. Gerard Bradley:  You're welcome. Pleased to do it. Good night.

 

Nick Marr:  Thank you all very much. On behalf of The Federalist Society, I'll give our customary thanks. Thank you both very much for taking the time out of your busy schedules to participate in what I think was a really terrific discussion. Thanks very much to our listeners for hanging in there, sticking a little bit afterwards, and for your great questions. Thank you very much for your engagement.

 

This will be posted as a podcast, probably within the week, up on the website. So do check that out. And, of course, check your emails and our website for announcements about upcoming events just like this one. So, with that, until next time, thank you all very much. We are adjourned.

 

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.