A few days ago one of the commentators at Althouse wrote something striking about abortion.
I have pondered the "abortion question" for forty years and I still haven't come to a conclusion - it is that close an argument - other than to believe I shall not express an opinion on the subject.
A person or politician who holds a moderate view on either side is worthy of further consideration. An extremist of either ilk I simply dismiss.
This is a fascinating attitude, and I believe it describes a great number of Americans. Abortion is a divisive fight over two radically different ideas. One side sees the unborn as a baby, a human being who has a right to life. The other side denies the humanity of the unborn. There is no baby. It is sub-human property.
Since the commentator does not want to be a radical--and both sides hold radically different ideas--he is unable to form an opinion or speak on the issue. So he is silent, and upset by the fight.
Prior to Roe v. Wade, the status of an unborn child was unresolved as a legal matter. None of our authorities had declared the unborn to be people who had a right to life. On the other hand, many states had outlawed the practice of abortion. This suggests a great uncertainty in regard to the moral status of an aborted baby. Is abortion like birth control? Or is abortion a kind of infanticide? People did not know, and so the criminal statutes were all over the place. California allowed abortion if the mom's health was at risk, while Texas made abortion a crime with a punishment similar to manslaughter.
Roe v. Wade proposed a radical solution. The Court defined the unborn as sub-human up until birth. When the baby is born, her humanity will be recognized. The baby is a person at the same moment that she becomes a citizen. Thus Roe conflates the ideas of "citizenship" and "personhood." You are not a citizen until you are born. Since the unborn are not citizens, it is perfectly fine to define them as sub-human property.
Of course this opinion helped galvanize an equally radical response. The pro-life movement was outraged by Roe v. Wade. They insist that the unborn is a baby, and that her humanity needs to be recognized by the state. And this political movement shows up at the Supreme Court's doorstep every January 22nd, to remind the unelected branch what it has done.
Since Roe v. Wade, many abortion radicals have sat on the Supreme Court. All of them have denied the humanity of the unborn. Indeed, some of them have joined in opinions describing the decapitation and dismemberment of babies outside the birth canal. They are upset by their own opinions, describing their own work as "gruesome" and "brutal." Yet these radicals continue to deny the humanity of these babies. Since they are not fully born, they are not citizens. And if they are not citizens their humanity may be denied.
The abortion dissenters disagree with this radical agenda. It upsets them. At the same time, the abortion dissenters have voiced their disagreement with the pro-life radical agenda. A prominent Roe dissenter, Justice Scalia, writes this:
I am as distressed as the Court is...about the "political pressure" directed to the Court: the marches, the mail, the protests aimed at inducing us to change our opinions. How upsetting it is, that so many of our citizens (good people, not lawless ones, on both sides of this abortion issue, and on various sides of other issues as well) think that we Justices should properly take into account their views...
Scalia wants to avoid being a pro-life radical, as well as a pro-choice radical. So he goes to great pains to avoid dismissing the humanity of the unborn. At the same time, he simultaneously wants to avoid accepting the humanity of the unborn. He's unhappy about the decapitation and dismemberment. But he cannot say whether this is a baby, or if it is a homicide. This has left him, and the other abortion dissenters, with nothing to say about the humanity of the unborn.
I believe this causes great stress in Justice Scalia. In his Casey dissent, Justice Scalia compares Roe v. Wade with the notorious Dred Scott opinion. That of course is the opinion in which the Supreme Court denied the humanity of anybody with black skin. Even free black people were defined by the Court as non-citizens. What Justice Scalia is doing with this comparison is reminding the Court that the issue of baby's humanity is important.
Is Scalia acknowledging the humanity of the unborn? No. Is he denying the humanity of the unborn? No. He refuses to discuss it.
In his Carhart dissent, Justice Scalia again compares Roe with Dred Scott. He writes...
I am optimistic enough to believe that, one day, Stenberg v. Carhart will be assigned its rightful place in the history of this Court’s jurisprudence beside Korematsu and Dred Scott.
Yet Korematsu was a person. Dred Scott was a person. Are the nameless babies who are killed outside the birth canal people? Or is it appropriate to deny their humanity?
Justice Scalia wants to avoid the radical step of accepting the humanity of the unborn. While he also wants to avoid the radical step of denying the humanity of the unborn. Thus, his reluctance to adopt either radical position has left him in a nihilist limbo. Perhaps "one day" the Carhart opinions will be recognized as atrocities. But to acknowledge these infanticides today is too radical for Justice Scalia.
What Scalia is suggesting is that it is up to our society to recognize the humanity of the unborn. Once our society does so, then the appalling infanticides may be recognized (and regretted). But Scalia himself will not recognize the baby's humanity as a legal matter. Thus, in silence, he has adopted the radical position of the dehumanizers. He has washed his hands of the issue, and acquiesced.