Abortion has never been about equality.
On Monday The Supreme Court struck down a Texas law requiring abortion clinics to meet the standards of ambulatory surgical centers and mandating that physicians performing abortions maintain admitting privileges at a hospital within 30 miles as an “undue burden” to a woman attempting to terminate her pregnancy. The opinion of the court delivered by Justice Breyer ruled that the state violated “a woman’s right to decide to have an abortion and consequently a provision of law is constitutionally invalid if the ‘purpose or effect’ of the provision ‘is to place a substantial obstacle in the path of a woman seeking an abortion'”. The opinion delivered by Breyer also states, “We conclude that neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes. Each places a substantial obstacle in the path of women seeking a previability abortion, each constitutes an undue burden on abortion access, and each violates the Federal Constitution.”
Justice Ruth Bader Ginsberg was heralded for putting to death the myth that outlawing abortion limits its danger, and later remarked that the decision of Roe v. Wade aimed to limit “undesirables… populations that we don’t want to have too many of”. How did such a caring and amiable woman arrive at such rhetoric? Can both statements be considered consistent with the preservation of liberty and the bolstering of choice? One major crux of abortion is that we do not understand its history, and this is why we do not understand Ginsberg’s quote regarding the purpose of Roe v. Wade. Abortion legislation was not fashioned to liberate women, nor from the outset was it considered a choice that they had the right to make.
In 1912 a fellow Progressive named Scott Nearing published a little book entitled The Super Race, in which he outlined his understanding of the relationship between progress and politics. Rexford Tugwell, member of FDR’s Brains Trust, and close friend to the president, later summed up his understanding of Progressivism as that espoused by Nearing in his book. In the first chapter Nearing laments that as a boy he “fully believed that the great achievements of the world were in the past”. However, his lamentation is reconciled as he comes to the realization “that the future may erect the perfected structure of a higher civilization”. His statement not only identified the aim of Progressive politics of the past, but would prove the purpose of Progressive policy for years to come.
Nearing states, “The past worked with things: the future, rising higher in the scale of civilization, must work with men- with the plastic, living clay of humanity”. To Nearing human beings were considered clay and the state would become the God that gave them shape. Liberty was seen as an impediment to reaching what the early Progressives understood as the “ethical ideal”; the true reason for which government was instituted among men. The initial goal of Progressivism was to mold a nobler man, and this could only be accomplished through the establishment of a nobler society to rear that man; however, in order to create a nobler society it was necessary to diminish the influence of lowest common denominator. The terms “unfit” and “moral” or “intellectual imbecile” were adopted to identify those citizens who acted as impediments to the ideal. Through government grants reformatories began to surface in order to rule such persons while facilitating their care and ridding the fit of the burden. In 1912 Dr. Henry Richard Seager, professor of political economy at Columbia and proponent of the minimum wage states, “One part of the program with reference to those who are defective from birth is to prevent that monstrous crime against future generations involved in permitting them to become the fathers and mothers of children who must suffer under the same handicap. If we are to maintain a race that is to be made up of capable, efficient, and independent individuals and family groups we must courageously cut off lines of heredity that have been proved to be undesirable by isolation or sterilization of the congenially defective. Michigan has just passed an act requiring sterilization of congenial idiots”. Not only was Michigan establishing these laws, but other states as well. It is little known that America adopted sterilization and eugenic policies prior to Germany. The factors of identification as “congenial idiot”, “defective”, and “unfit”, were income, unemployment, intemperance (alcoholism), and even those conceiving children out of wedlock. Abortion was not initially intended to liberate the destitute from their missteps, but rather to confine their toxic effect on the State at large. Nearing would propose what he understood as yet a more effective alternative than isolation and sterilization: eugenics.
In his book, Nearing identifies “The science of Eugenics treats of those forces which, through the biologic processes of heredity, may be relied upon to provide the inherited qualities of the Super Race. The science of Social Adjustment treats of those forces which, through the modification of social institutions, may be relied upon to provide a congenial environment for the Super Race”. The science of Eugenics, or “the treating of biologic forces” was one piece to the puzzle of establishing a greater society, the other piece was institutional modification of individual behavior. One part of Eugenics dealt with the sterilization of unfit individuals who were relegated from society and resided in reformatories, another part dealt with the ridding those who had already conceived burdensome unborn children that they were unfit to properly rear. Nearing later defines the fields of eugenics. He states, “There are two fields in which eugenics may be applied- the first, Negative, the second, Positive. Through the establishment of Negative Eugenics the unfit will be restrained from mating and perpetuating their unfitness in the future. Through Positive Eugenics the fit may be induced to mate, and by combining their fitness in their offspring, to raise up each new generation out of the flower of the old”. The goal of Progressivism was never to perpetuate equality, nor was it to provide diversity. The goal of Progressive policy was to establish a prominent class and create laws for the advancement of that class. Progressive policy was from the very beginning discriminatory, but it discriminated not as it now does. From the outset Progressivism aimed at eliminating the least capable rather than raising them up.
The Progressive movement began in the late 1800’s as many Americans interested in the study of Political Science began to study in Germany. America had few doctoral programs, and at the time traveling to Germany to study was a liberating and lucrative experience. Thus commenced the German University Connection that would foster a pipeline of both thought and institutional arrangement. Among the men who traveled to Germany to seek their higher education were Woodrow Wilson, Rexford Tugwell, Richard T. Ely, John Dewey, and many who would later constitute Franklin Delano Roosevelt’s “Brains Trust”. Among those educated in Germany were the founders of the Socialist Party of America. Among the Institutions established by these minds are institutions that continue to govern higher education today, namely The American Political Science Association, The American Economic Association, the American Association for Sociology, and many more. Those who constituted the German University Connection also began to establish new universities as well as occupy existing ones. One such University that was thus established is Johns Hopkins University. One that was thus constituted was the University of Wisconsin. Robert La Follette, governor of Wisconsin during FDR’s presidency, would proclaim that “Wisconsin is doing for America what Germany is doing for the World”. This was of course during the passing of policy which would later establish the foundation of Nazi Germany.
Needless to say, not only did these students of German thought bring German methods, but also a German philosophy. This school of thought was referred to by its students as The German Historical School. The reason being their belief in the historical development and enlightenment of the individual. Thus, they believed that each society or collective group of men occupied a certain stage of enlightenment, and it was the duty of the state to foster that enlightenment and arrive at a higher plane of development. All government policy and action, therefore, would be aimed at unleashing the collective will of the people towards their highest possible “moral, spiritual, and intellectual development” (Richard T. Ely’s words). Charles Merriam, professor of Political Science at the University of Chicago, catalogs the shift of the American understanding of rights in 1920 in his book Recent Tendencies. He writes, “The origin of the state is regarded, not as the result of a deliberate agreement among men (social compact), but as the result of historical development, instinctive rather than conscious; and rights are considered to have their source not in nature, but in law… It is the state that makes liberty possible, determines what its limits shall be, guarentees and protects it… (men) obtain liberty only through the organization of political institutions. The state does not take away from civil liberty, but is the creator of liberty”. This is why such men referred to themselves as progressives: they were for human progress. In their belief, man had arisen from the dirt, and he had nothing that was natural and inalienable to his person. But if man possessed no right that cannot be severed from his person, and “the state is the creator of liberty”, what becomes of self-government? Further, if man holds no inherent right to his own life, is there anything barring the disposing of, not only an unborn life, but a living one, for the sake of progress?
Merriam provides the answer, “It is denied that any limit can be set to governmental activity, and the contention is made that ‘each function must rest on its own utilitarian basis’… The new position is a mean between socialism and extreme individualism”. The state, as the avowed creator of liberty, is limitless in regards to what it can and cannot do in order to expand or restrict that liberty. When Merriam claims that the functions of civil government rest on a utilitarian basis, he means that the governed may have to suffer for the sake of the advancement of the regime, and there are no barriers to the suffering of the governed. Without the recognition of the natural rights of individuals, and therefore no recognition of the limits on the actions of government, a people cannot have true equality under the law. Individuals would be evaluated and treated based on their inherent ability to affect the regime in a positive or negative way. But how would progressives ultimately go on to achieve the great project of liberation through advancement and enlightenment?
Merriam goes on to state, “Liberty, moreover, is not a right equally enjoyed by all. It is dependent upon the degree of civilization reached by the given people, and increases as this advances. The idea that liberty is a natural right is abandoned, and the inseparable connection between political liberty and political capacity are strongly emphasized. After an examination of the principle of nationality, and the characteristic qualities of various nations or races, the conclusion is drawn that the Teutonic nations are particularly endowed with political capacity”. When the principle that individuals possess an inalienable right to life is abandoned, a regime must recourse to evaluating individuals on a purely discriminatory basis. When any human right to life is marginalized, all human rights are at the disposal of the ruling few. Merriam later states, “In the days of the (American) Revolution, it was thought that the end of the political society is to protect the life, liberty and property of its citizens, and beyond this nothing more. The duty of the state was summed up in the protection of individual rights, in harmony with the individualist character of the philosophy of that day. In the theory of Lieber (German Political Scientist who arrived in America in 1827), this idea was broadened out, and as he phrased it, the duty of the state is to do for man: first, what he cannot do alone; second, what he ought not do alone; and third, what he will not do alone”. This understanding of the American regime was adopted by Wilson as he asserted that the state exists for “mutual aid and self-development”, and later affirmed by FDR in his urge for the adoption of a second bill of rights in 1944. It is questionable today whether rights as they are broadened out can still be held self evident and sacred. This is where we now find ourselves and whither we are tending.
Is it prudent to expand our sacred rights to encompass the right to “undue burden”? In Federalist 62, James Madison writes, “It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood”. Perhaps as our rights expand, as do the laws necessary to provide those expansive rights, the observance and appreciation for that which constitutes us a free people may diminish. Perhaps as we strengthen our reliance on a power external to ourselves to eliminate our several burdens we eliminate our future prospects for liberty and therefore genuine prosperity. Perhaps as we deliver our fates to the hands of our rulers our lives and our livelihoods becomes something to be molded, for better or for worse.