This article by Human Life Review contributor Richard Stith was originally published on MercatorNet under a Creative Commons Licence. If you enjoyed this article, visit MercatorNet for more.
For hundreds of years, there has been a tension in Western law between providing protection and allowing action.
For example, pre-capitalist law generally protected the ancient, natural, or first use of property against would-be developers, whereas in the 19th century, laissez-faire law tended to allow almost any sort of development — even, in America, to the point of granting the greatly admired railway steam engine immunity to damage suits as it barrelled through fields and towns spewing noxious fumes, its sparks often starting fires.
The Left responded by resurrecting legal protectionism in a new guise, standing with the losers in the capitalist free-for-all, and adding a large dose of egalitarianism to its emphasis on a welfare state, in clear opposition to the laissez-faire Right.
The ongoing debates over vaccine mandate provide a perfect example of how this split continues in our own century. The Left in general cares more about protecting people from Covid, while the Right cares more about letting people act, letting them make their own choices.
But this is not an absolute division. For example, anarchism on the extreme Left deemphasizes legal protection even more than libertarianism on the extreme Right; in that anarchism would do away with the police and the government entirely while libertarianism would only minimize them.
And abortion is an area where both sides seem to have shifted away from their default principles. The Left promotes action by women instead of protection for human foetuses, while the Right promotes protection for foetuses, rather than advocating freedom of individual action for women.
One could say, therefore, that both the Left and the Right are unfaithful to their own deep principles when it comes to abortion.
More specifically, the American Left is committed to supporting Roe v. Wade’s removal of legal protection from a group clearly and desperately in need of it: late-term sentient human foetuses about to be torn limb from limb. It’s hard openly to mount a protectionist argument for this barbaric stance; the best that can be done is to fold it into a concern for protecting women’s health, and keep it hidden there.
On the other hand, the Right can try to justify its protectionist turn with respect to the unborn, by arguing that even the strongest libertarians have always favoured protection of the innocent against intentional violence (think of John Locke’s vision of the state as merely a “nightwatchman”). This makes some sense. How could you keep a game of Monopoly going if the players felt free to shove their opponents’ pieces onto the floor?
The mainstream of the pro-life movement does not, however, fall into the actionist camp favouring “economic free-for-all, except for no intentional violence”. Instead, we stand squarely in the protectionist camp. We share with the Left a desire to protect, except that we refuse to make what appears to us to be a clearly inconsistent exception (putting women’s freedom of action ahead of protecting children’s lives).
We stand in the protectionist camp for reasons of personal conviction but also, importantly, for reasons of pro-life strategy.
There is just no way we are ever going to build a consensus against the intentional violence of abortion until we as a nation open our hearts and pocketbooks to the pressing needs of mothers, fathers, and little children.
Think here of the German Constitutional Court’s decisions of 1975 and 1993 that held that the acknowledged constitutional right to life of the unborn requires affirmative governmental material and legal support, including apartment housing, for new mothers.
This ultimate goal of protecting the unborn from abortion explains why even those pro-lifers on the Right who otherwise support laissez-faire capitalism have made an abortion-related exception to their own actionist principles.
They have joined with the pro-life mainstream in asking our society and government to take affirmative protectionist steps, to carve out a miniature welfare state approach to pregnancy, childcare, and parental employment, so that we can remove a large part of the despair and desperation that pushes women into taking the lives of their own children before they get to be born.
Richard Stith is a professor emeritus of law at Valparaiso University. He is active in the Consistent Life Network, although the positions taken in his essays are not necessarily those of the CLN or its members.