Abortion, slavery, and Lincoln

When Donald Trump recently came out against any kind of federal ban on abortion he was on the receiving end of ire from various pro-life groups. Most notably the Susan B. Anthony List said a position like Trump’s is a “morally indefensible position for a self-proclaimed pro-life presidential candidate.” The group said it would not support for president anyone taking a position similar to Trump’s.

Some context is needed, perhaps. For years, under the Roe v. Wade regime, many pro-life politicians stressed that overturning Roe would not mean the banning of abortion; rather, it would simply mean the returning of the question to the states, as was the case pre-1973. One criticism of Roe was that nine (or, really, Roe’s seven-person majority) unelected judges had created the abortion regime for the country.

Antonin Scalia, in his opinion in 1990s Hodgson v. Minnesota, stated, “The random and unpredictable results of our consequently unchanneled individual views make it increasingly evident, Term after Term, that the tools for this job are not to be found in the lawyer’s — and hence not in the judge’s — workbox. I continue to dissent from this enterprise of devising an Abortion Code, and from the illusion that we have authority to do so.” Scalia did not address the question of precisely who did have the appropriate workbox for the job.

Dobbs v. Jackson, in overturning Roe last year, did, as a matter of law, take the abortion question out of the courts’ hands, but it too was ambiguous as into whose hands the question is placed. The Court’s majority held that no language in the Constitution suggests a constitutional right to an abortion. Yet, it isn’t clear that the Constitution gives the federal government authority to regulate abortion.

In general, what is known as the police power, the power to regulate basic public order and safety, is left in the hands of the states. That is why there is relatively little federal criminal law. With few exceptions—such as if you are on federal property, dealing with federal money, or crossing state lines—your basic “don’t hit that guy” “keep your hands of that gal,” and “don’t take that person’s stuff” is regulated by the states. This includes homicide. It would seems then that abortion regulation, dealing as it does with basic health and safety, would be a state issue.

Some people draw parallels to the slavery issue. You wouldn’t want to say that slavery was merely a “state’s rights” issue, just like the old Confederacy, would you? For now accepting the pro-life contention that abortion is the taking of an innocent human life, it seems morally cretinous to say that states are free to leave the very existence such innocent life subject to the whims of a mother and a doctor. Just as we object to the state’s rights view of slavery or the segregationist South’s contention that Southerners were just defending “our way of life,” should we not object to the notion that states could leave whole categories of human beings subject to intentionally killing without legal protection?

Let’s look at Lincoln’s view of slavery to see if we can make an analogy to the current situation. Lincoln did separate, at least to some extent, his views on the morality of slavery from its legal status. Lincoln believed three things simultaneously: (1) that slavery was wrong, (2) that the Constitution gave the federal government the power to regulate, even proscribe, slavery in federal territories, but (3) the Constitution also gave protection to slave property in the states. If the national government was going to make a move against slavery in the states it would either have to do so via compensated emancipation (i.e., pay slaveholders for their property, in conformity with eminent domain provisions of the 5^th Amendment) or through a constitutional amendment.

On the surface, then, this looks like a basically state’s rights position, with only limited authority over slavery left to the federal government. But this is not quite the case. While Lincoln made a kind of peace with the legal status quo of his time, he made it clear that this legal reality was deficient and inconsistent with the principles of the Declaration of Independence. As he put it in his famous speech on Dred Scott in 1857:

They did not mean to assert the obvious untruth, that all were then actually enjoying that equality, nor yet, that they were about to confer it immediately upon them. In fact they had no power to confer such a boon. They meant simply to declare the right, so that the enforcement of it might follow as fast as circumstances should permit. They meant to set up a standard maxim for free society, which should be familiar to all, and revered by all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people of all colors everywhere. 

Lincoln also shared the opinion of many (including eventually Frederick Douglass) that the Constitution’s evasion of the word “slavery” suggested that while the Constitution may have given some legal protections to slavery, it did not endorse it. The tenor of the founding was to treat slavery as a wrong and the Constitution’s treatment of slavery should be considered as a temporary concession, not a statement of right.

This is why Lincoln was an enthusiastic backer of the 13^th Amendment. The Constitution should put right what it initially temporized. We also today have the 14^th Amendment. John Finnis makes a plausible argument that the 14^th Amendment already gives constitutional protection to the unborn as it gives the federal government power to protect the rights of “persons.” If one considers the unborn persons, then states could not justly deny the fundamental right to life to unborn persons anymore than they could allow the legal ownership of slaves. The 14^th Amendment provides Congress the power to enforce its provisions, giving the federal government the power to regulate slavery.

The Finnis position, whatever its soundness, is a minority view and unlikely to gain recognition by the Supreme Court. Absent the Finnis argument, a Lincoln position on the post-Dobbs abortion regime might be that, indeed, abortion is largely left to the states. But a pro-life Lincolnian politician would still speak of abortion as a wrong, a violation of basic natural rights and promote the necessary constitutional adjustments to give the federal government the power to prohibit it.

Donald Trump, hardly one’s model of moral statesmanship, seems an unlikely politician to navigate these morally fraught waters. Given that he’s been on every side of the abortion issue possible, he seems far more likely to act from expediency than moral conviction or respect for the law.