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Published online by Cambridge University Press: 10 November 2009
This article reconsiders George Grant's account of the decision of the US Supreme Court in Roe v. Wade against legal restrictions on abortion to support his claim that liberal contractualism here raises but cannot resolve the ontological question of what makes justice our due, while questioning his treatment of this crisis as the final triumph of technological reason, and the Biblical idea of will, over the remnants of an ancient justice based on the Platonic notion of contemplation. What provokes liberalism to question equality of right is as much its denial of the Biblical account of family and creation as its denial of classical political philosophy.
Cet article examine l'interprétation que George Grant fait de la décision de la Cour suprême des États-Unis dans le proceès Roe v. Wade au sujet des contraintes juridiques en matière d'avortement. L'auteur appuie l'argument voulant que le libéralisme contractuel soulève, sans la résoudre, la question ontologique de la justice méritée par les humains. Cependant, l'auteur doute que Grant ait raison de voir dans cette crise le triomphe de la raison technologique et de l'idée biblique de la volonté sur les vestiges d'une justice ancienne fondée sur la contemplation platonicienne. L'auteur croit plutoôt que le libéralisme met en doute l'égalité des droits autant parce qu'il rejette la conception biblique de la famille que parce qu'il rejette la philosophie politique de l'Antiquité.
1 English-Speaking Justice (Toronto: Anansi, 1985). 69.Google Scholar Originally published as public lectures at Mount Allison University, the present work was first published by the university in 1978 and is now co-published by the University of Notre Dame. Subsequent references to this work will employ the abbreviation ESJ.
2 ESJ, 6.
3 ESJ, 73.
4 Ibid.
5 ESJ, 79–80.
6 ESJ, 70.
7 ESJ, 61–62.
8 Technology and Empire (Toronto: Anansi, 1969), 22.Google Scholar
9 ESJ, 63.
10 Technology and Empire, 32.
11 Ibid., 23–24.
12 Ibid., 35.
13 ESJ, 63, 76.
14 ESJ, 75.
15 ESJ, 86.
16 ESJ, 74.
17 ESJ, 44–45, 48.
18 Orwin, Clifford, University of Toronto Law Journal 30 (1980), 111.CrossRefGoogle Scholar
19 Ibid., 112. See also Ely, John Hart, “The Wages of Crying Wolf: A Comment on Roe v. Wade,” Yale Law Journal 82 (1973), 947CrossRefGoogle Scholar; and Epstein, Richard, “Substantive Due Process by Any Other Name: The Abortion Cases,” Supreme Court Review (1973). 175–76.Google Scholar
20 Orwin, 113.
21 Ibid., 114.
22 410 U.S. 113, 129.
23 Thompson v. Stale 493 SW 2d 913 (Tex. Crim. App. 1971) at 919. See Destro, Robert A., “Abortion and the Constitution,” Human Life Review 2 (1976), 34, 90.Google Scholar Part of the Texas court's decision is quoted but not discussed by Blackmun at 410 U.S. 113. 119 n. 3.
24 410 U.S. 113, 132.
25 410 U.S. 113, 135. The study referred to is Cyril Means. Jr., “The Phoenix of Abortional Freedom: Is a Penumbral or Ninth Amendment Freedom About to Arise from the Nineteenth-Century Ashes of a Fourteenth-Century Common-Law Liberty?” It was prepared for the 1971 Women';s Rights Symposium of the New York Law Forum. For a critical examination of Means's analysis of the common law tradition see Destro, , “Abortion and the Constitution,” 41–44.Google Scholar
26 410 U.S. 113, 151. Epstein notes that Blackmun failed to notice that the Texas statute had been re-enacted in 1911, when surgical abortions had become safe (“Substantive Due Process,” 168).
27 410 U.S. 113, 151. Means is again the authority for this claim. It is contradicted by an 1859 report of the American Medical Association, which Blackmun elsewhere admits may have significantly contributed to the adoption of stricter criminal abortion laws during this period. The report holds that the crime of abortion often results from “mistaken and exploded medical dogmas” which deny the life of the foetus before quickening.
28 Noonan, John T. Jr., “An Almost Absolute Value in History,” in Noonan, John T. (ed.). The Morality of Abortion: Legal and Historical Perspectives (Cambridge: Harvard University Press, 1970), 32.CrossRefGoogle Scholar Noonan's essay is frequently cited by Blackmun though not on these matters.
29 410 U.S. 113, 141.
30 410 U.S. 113, 152.
31 410 U.S. 113, 150.
32 Grant, Sheila and Grant, George, “Abortion and Rights: The Value of Political Freedom.” in Fairweather, Eugene and Gentles, Ian (eds.). The Right to Birth (Toronto: Anglican Book Centre, 1976), 5.Google Scholar
33 410 U.S. 113, 163.
34 410 U.S. 113, 154.
35 Abele v. Markle, 342 F. Supp. 800(D. Conn., 1972)at 802. See Destro, , “Abortion and the Constitution.”Google Scholar
36 410 U.S. 113, 162.
37 410 U.S. 113, 163.
38 This can be seen by applying the Court's own argument against Texas' claim that the foetus is a person. Blackmun says this claim is contradicted by the fact that abortion is permitted to save the mother, by the difference between the penalty for abortion and homicide (410 U.S. 113, 158). If the viable foetus were a person or some other kind of being possessing rights the State would have a duty, not a permission, to prohibit abortion, and it would not be overcome by appeal to the mother's health. This is not to say that Blackmun's argument against Texas is sound however.
39 Buck v. Bell, 274 U.S. 200. 203 (1927). cited by Blackmun at 410 U.S. 113. 154 and by Justice Douglas (concurring) at 410 U.S. 179. 215.
40 410 U.S. 113, 162.
41 Destro, , “Abortion and the Constitution,” 52.Google Scholar
42 And even contradictory if, as Blackmun thinks, the right to abortion is founded in the same section of the Fourteenth Amendment.
43 Congressman Bingham speaking in the 1st Session of the 40th Congress as quoted by Destro, , “Abortion and the Constitution,” 55.Google Scholar
44 410 U.S. 113, 161.
45 A possible passing reference to the question of whether life begins at conception or implantation is not pursued and would hardly support Blackmun's conclusion (410 U.S. 113, 161).
46 See above at 456. This is not to deny the importance of the connections between the Court's decision here and both its prior decision in Eisenstadt v. Baird (405 U.S. 438, 1972) and its subsequent decision in Planned Parenthood of Century Mo. v. Danforth (428 U.S. 52, 1976). In the former case Justice Brennan observed that “if the right to privacy means anything, it is the right of an individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” As one commentator remarks, a right previously based upon the privileged status of marriage is here made universal in such a way as to repudiate that status (Noonan, John T. Jr., A Private Choice [New York: Free Press, 1979], 21Google Scholar). Noonan notes that this case was decided after the arguments in Roe v. Wade had been heard. In the Danforth case Justice Blackmun invalidated a state requirement for spousal consent to a “non-therapeutic” abortion, holding that the State could not delegate it to the father because it did not possess this right itself. One could wonder if the Court's refusal to treat the right to abort as a freedom based on the mother's right over her body might have anticipated Justice White's complaint that a father's interest in the life of the foetus is not something the State delegates to him. Might founding a right to abortion on the facts of reproduction even imply a preference for birth over abortion?
47 Orwin, 112.
48 410 U.S. 113, 163. Paul Ramsey argues against supposing that the Court intended to define “viability” so as to allow for abortion where congenital defects could be diagnosed, though he notes that others were arguing for such a definition at the time. He notes that use is being made of Roe v. Wade to justify a “‘liberalized’ neonatology policy.” but argues the decision must be misinterpreted to give this result (Ethics at the Elites of Life [New Haven: Yale University Press, 1978], 246–54).Google Scholar
49 Floyd v. Anders, 440 F. Supp. 535 (D. So. Car., 1977). quoted at Noonan. A Private Choice, 144–45.
50 440 F. Supp. 539.
51 “A Defense of Abortion.” in Cohen, Marshall, Nagel, Thomas, Scanlon, Thomas (eds.). The Rights and Wrongs of Abortion (Princeton: Princeton University Press, 1974), 3–22.Google Scholar
52 Ibid., 13.
53 Warren, Mary Anne, “On the Moral and Legal Status of Abortion,” in Wasserstrom, Richard (ed.), Today's Moral Problems (New York: Macmillan, 1975), 127.Google Scholar
54 Ibid.
55 Ibid., 131. By the latter Warren enjoins us to recognize the moral rights of “self-aware robots or computers” when developed.
56 Ibid., 136. See also Michael Tooley's argument that “an organism possesses a serious right to life only if it possesses the concept of a self” and his conclusion that “infanticide is morally permissible in most cases where it is otherwise desirable” (“Abortion and Infanticide,” in Cohen, , Nagel, and Scanlon, [eds.]. Rights and Wrongs of Abortion, 77, 79).Google Scholar
57 “Sanctity of Life or Quality of Life,” Pediatrics (July 1983). Reprinted in Human Life Review 9 (1983), 86–88.Google Scholar
58 Leviathan, 2.20, 154 (Pogson Smith).
59 De Cive, 1.2.19.
60 Two Treatises, 1.6.54, 55; II.6.65.
61 Ibid., 1.6.56; 11.6.56. Locke follows up his account of the natural tendency of all creatures to preserve their young with a reference to the practice of a people who “begot children on purpose to fatten and eat them” (1.6.57–58). Locke's editor says the reference has “no particular relevance and seems to have been dragged in to make a sensation.”
62 Leviathan, 1.15, 111–13.
63 Ibid., 117–18.
64 ESJ, 83–84.
65 Time as History (Toronto: CBC, 1969), 22.Google Scholar
66 Technology and Empire, 19.
67 See Strauss, Leo, Natural Right and History (Chicago: University of Chicago Press, 1953), 157–58.Google Scholar
68 See, for example, Ramsey, Paul, Fabricated Man (New Haven: Yale University Press, 1970), 130–38.Google Scholar
69 ESJ, 88.
70 Technology and Empire, 109.
71 See, for example, Thomas Pangle's introduction to his edition of Strauss, Leo, Studies in Platonic Political Philosophy (Chicago: University of Chicago, 1983), 18–26Google Scholar, and the address of Joseph Cardinal Ratzinger to the College of St. Thomas, St. Paul, Minn, of Feb. 13, 1984, “Faith. Philosophy, and Theology.”
72 Consider, for example, Hobbes, , Leviathan, 4.46. 536.Google Scholar
73 Time as History, 49–52.
