On Abortion, We Are All Relativists

John E. Schwarz and David Callahan

August 26, 2005

John E. Schwarz, a political scientist at the University of Arizona, is the author, most recently, of Freedom Reclaimed: Rediscovering the American Vision. David Callahan is a senior fellow at Demos , a think tank in New York City, and author of The Cheating Culture: Why More Americans Are Doing Wrong to Get Ahead.

Okay, so maybe NARAL got it wrong, and Supreme Court nominee John Roberts is no friend of abortion clinic bombers. But the recent flap over a pulled attack ad didn’t do anything to answer the big “would he or wouldn’t he” question about Roberts and Roe v. Wade . And it’s not just liberals who are worried. Conservatives still aren’t sure that Roberts won’t turn out to be another equivocating turncoat like Justice David Souter.

Sen. Charles Schumer voiced the fears and hopes of all sides when, in a private meeting with Roberts, he reportedly asked whether Bush’s court pick was an “ideologue.” For pro-choicers, of course, the magic answer to that question is no, and their dream is that, if confirmed, Roberts will turn out to be a pragmatic and flexible jurist—one with little appetite for unleashing havoc by nixing Roe , whatever he may believe deep down. For pro-lifers, the ideal answer is yes—and they pray, quite literally, for a Justice Roberts who, in addition to being a bedrock conservative, has nerves of steel.

Left unstated in this anxious guessing game is an implicit assumption that has crept to the center of debates over abortion and the courts—which is that the pro-life position flows from a set of absolutist principles, while pro-choice legal thinking is a muddle of moral relativism, political pragmatism or judicial activism. This is nonsense. When it comes to abortion and the law, we’re all relativists. The only question—especially with public opinion so divided—is which relativists can acquire more power.

As social conservatives tell it, two great principles are at stake with respect to abortion: first, the principle that human life, and thus personhood, begins at conception. And second, the principle that the actual text of the Constitution ought to rule. Roe v. Wade, it is said, stands as an affront to both these elementary truths. Because the text of the Constitution nowhere contains an express right protecting either abortion or privacy, the decision is held up as a prime example of judicial activism—of rogue judges effectively granting themselves the same powers as the wise men who gathered at the Constitutional Convention in Philadelphia more than two centuries ago. Worse, even as they usurped the founders, the justices who decided Roe are said to have played God by offering up a relativist rather than a fixed view of when human personhood begins—not at conception, but at a later point, along some slippery slope after the true beginning of life

As conservatives see it, John Roberts shouldn’t have a very complicated job when he gets to the court. All he has to do is read the Constitution and stay true to his sectarian beliefs. Scalia makes it all look so easy. And maybe it is. But nobody should be fooled into thinking that this approach represents some kind of Constitutional or moral absolutism.

Start with the Constitution. While the 14th Amendment clearly protects the right of born citizens, it says nothing about the rights of the unborn. However, the Constitution does state, in the 9th Amendment, that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This is to say, the founders explicitly told future interpreters of their handiwork that each and every right deserving protection is not enumerated in the Constitution. That was smart thinking. A document whose stated aim is freedom would never allow rights of freedom to be confined to enumerated ones, since some rights would inevitably be missing—for example, the right to emigrate or even travel from the country. 

Conservatives are free to inveigh against a right to privacy that allows abortion—a right never expressly stated in the Constitution but inferred by the Warren and Burger Courts. Conservatives are also free to propose rights that are not expressly stated for unborn fetuses. What they can’t do is complain that pro-life judges are the principled defenders of the Constitution while pro-choice judges are subverting the founders’ intent. 

Nor can conservatives seriously claim the absolutist high ground when it comes to the true meaning of fetal life. Here, too, they’re just as good at winging it as liberals.

If, as social conservatives hold, a full human life begins at conception, it follows that abortion occurring at any point in time from conception onwards is the equivalent of murder. This is to say that doctors carrying out abortions as well as all other willing accomplices—the mothers themselves, receptionists, nurses, medical assistants and so forth—should be prosecuted under the laws of murder just like any murderer.

In the past, however, this absolutist position was never reflected in law. Prior to Roe , when states could outlaw abortion at will, no state ever equated abortion with murder. Maximum sentences for performing abortion generally called, at most, for a few years in prison.

A similar relativism can be found in the current views of pro-life elected leaders. When President Bush signed a 2003 law criminalizing late-term abortions—a procedure that many Republicans in Congress called “murder”—the maximum criminal penalty for doctors who violated the law was a paltry two years in prison. (The law was later struck down by the courts.) There was no punishment for mothers.  Leading pro-life Republicans also hold that abortion should be allowed in cases, for example, of incest or rape. Do these politicians embrace such caveats for murdering full-fledged human beings? Of course not. 

The relativism about fetal life among Republicans jives with the views of most Americans—who who see quite a bit of difference between a day-old cluster of embryonic cells and a fully viable fetus. As is so for the Constitution, in the case of most Americans it is prior to birth, not after, that matters grow relativistic, and they grow relativistic on all sides. Wiser Republicans understand that the more absolutist their party becomes about abortion, the more out of step with the public it will grow.

It is impossible to know for sure how a Justice Roberts would handle Roe . But one thing we can say for sure is that the battle over his confirmation, and along with it the legal status of life before birth, is not a titanic clash between ironclad principle and slippery-slope relativism, but a power struggle between divergent relativistic views.