In the movie Highlander we are told in the battle of immortals there can be only one. One will survive, and all other competitors will die. I was reminded of this when reading how U.S. District Judge Paul Englemeyer ruled that it is unconstitutional and coercive for the Trump administration to protect the conscience rights of medical providers who oppose abortion and physician assisted suicide. The myth of legal neutrality on abortion comes crashing down again as the act of refusing to participate in abortion is declared harmful, and the government reserving the right to pull HHS funds from institutions actively forcing its members to violate their conscience is described as an act of coercion. Did you catch that? The government can’t coerce institutions not to coerce their employees. Only those whose coercion slants toward access to abortion can coerce. Otherwise, it is bad coercion.
There is no such thing as legal neutrality on abortion. The government can’t simply say, “Follow your heart!” Laws morally instruct. They set a baseline for the community’s moral considerations. As Hadley Arkes argues in Natural Rights & the Right to Choose, once the government empowers women to destroy their offspring before they are born, a side has been taken no matter what is said. Saying we can’t determine if the unborn human life is the kind of thing that we should protect so we’ll make it free to destroy them as a protected right is a special kind of nonsense. That isn’t neutrality. It is landing the law squarely on one side while feigning neutrality.
This infects all future considerations. This is how Judge Englemeyer sorts out what coercion is acceptable, and which is not. All deliberations begin from a different foundational understanding of human rights, human dignity, and the roll the law plays in guiding our behavior. A weird example was when Germany legalized prostitution in 2002. Those with libertarian leanings may think this is excellent. Let people decide what they want to do for themselves and with their own bodies. Unfortunately, things got weird fast. If someone is receiving government unemployment and a job comes available at a brothel are they then required to take the job? If they say no, can they lose unemployment benefits for refusing to take a job in an industry the government condones as acceptable? Should job openings for prostitutes be listed alongside other jobs in government databases? How does the government balance the conscience of particular members of society against the new normal that says prostitution is just another job? All of these issues had to be worked out through the courts of Germany simply because the legal status quo changed. The law now instructed German citizens that working in a brothel is similar to working in a bakery, two perfectly legal occupations.
Abortion law creates that kind of chaos on steroids. You are free to privately believe whatever you want about abortion, but if you want to work in the medical profession Judge Englemeyer says you better be prepared to participate in the legally sanctioned and approved destruction of the next generation before they are born. Don’t worry, the law is neutral unless, of course, there appears to be even a hint of rejection of the current permissive narrative. As Arkes writes elsewhere:
They are “simply two alternative medical methods” if there is nothing of medical or moral significance between the deliberate taking of innocent life and the preservation of it. The judges who have settled in securely with the “right to abortion” have absorbed the notion that abortion is just another legitimate medical procedure. They invoke a concern for equality of treatment when the law seeks to favor childbirth over abortion.
In this case, the law isn’t even favoring childbirth. The rule simply protects the rights of people working in the medical profession from violating their conscience. If any institution attempts to force healthcare workers to violate their conscience it will face consequences in the form of the withholding of HHS funds. This is punishment for coercing people to do what they believe is a great moral wrong, participating in the intentional ending of another human life.
Some issues are so morally polarizing they don’t lend themselves well to middle ground. Abraham Lincoln made that case for the issue of slavery in his House Divided speech. As Stephen Douglas sought middle ground on the expansion of slavery into new territories, Lincoln rhetorically attacked the idea that such a possibility existed. Quoting the bible, he stated:
“A house divided against itself cannot stand.” I believe this government cannot endure, permanently half slave and half free. I do not expect the Union to be dissolved — I do not expect the house to fall — but I do expect it will cease to be divided. It will become all one thing or all the other.”
Lincoln’s point, a society that permitted the bondage of some human beings threatened the bondage of all human beings. When we accepted the proposition that some human beings could be enslaved, we place ourselves in contradiction with the principles of a free society. One thing will survive, the principle that all men are created equal and endowed by their creator with unalienable rights or the idea that, to borrow from Orwell, some animals are more equal than others.
And here we are back to Highlander. It can’t be kind of okay to kill some human beings. If the unborn are human in the same way you or I are, if they are one of us, then they must be protected under the law. If they are not one of us there is no justification for restricting abortion at all. Laws that protect the unborn, as well as the conscience rights of those who see them as one of us, are in direct conflict with the abortion permissive Roe v Wade legal environment. A society that accepts some human lives can be destroyed threatens us all. We must choose one view of human dignity or the other. In the end, there can be only one.
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