The great moral issue that defined American character and identity during the late eighteenth century and the nineteenth century was slavery. The Founders of the American republic were deeply concerned about the perpetuation of slavery and desired its elimination. Southerners supported gradual elimination, while most Northerners favored more immediate abolition.
The slavery compromise written into Article V of the Constitution guaranteed a twenty-year waiting period (until 1808) before any federal restrictions upon importing slaves could be enacted. That tactic might have succeeded in laying the foundation for abolition of slavery in America, had it not been for the invention of the cotton gin, which made slavery a much more lucrative institution for southern cotton-growers.
By 1808, slavery in the South, instead of weakening, was expanding. For example, in 1800, there were only 200,000 slaves in Georgia, South Carolina, Alabama, Mississippi, Louisiana and Texas. By 1860, that number had increased more than eleven-fold, to 2,275,000 slaves in those states. (See John B. Boles, Black Southerners, 1619-1869 (1983), at 61-65.)
Because American lawmakers could not agree upon any policy to eliminate slavery, and because evidence of the inhumanity of slavery could not be hidden, the political crisis over slavery grew. The irreconcilable conflict between the “equal justice” values and “all-men-are-created-equal” principles upon which the nation was founded (as embodied in the Constitution and the Declaration of Independence) and the oppressive and exploitive values underlying the institution of slavery became increasingly apparent, increasingly frustrating, and increasingly embarrassing. As Abraham Lincoln argued in his 1858 “House Divided” speech, the nation could not continue “half slave and half free.”
Impatience and pride exacerbated the controversy. Resolving that moral conflict required a brutal war that left 600,000 American soldiers dead, half the nation smoldering in ruins, and social and political hostilities bristling for another century.
Yet no one today would argue that the emancipation of Black slaves, the abolition of slavery, and the movement to confer full, equal civil rights upon all Americans was not the right thing to do. It was necessary. It was worth the price – even the terrible price of the Civil War.
Today, America faces other moral conflicts and crises that may have as profound an effect upon our character, our identity, and our future as a nation as the slavery crisis did in eighteenth and nineteenth century America.
One of the great moral issues that challenges our national character and identity today is about elective abortion. (The term “elective abortion” refers to abortions that are not medically indicated, not necessary to preserve the life or health of the pregnant mother.)
In Roe v. Wade in 1973, the Supreme Court imposed a rule of “elective-abortion-on-demand” upon the entire nation. Abortions can be obtained and performed for any reason – or for no reason at all – at least until “viability” (which is deemed to occur about 20-24 weeks gestation).
Interestingly, Roe has had virtually no effect upon public opinion. Polls indicate that there has been very little change in popular opinion about the legality of elective abortions during the past forty years. For example, Gallup polls from 1975 to 2015 reveal that about twenty percent of respondents would make abortion “illegal in all circumstances,” about twenty-five to thirty percent of respondents would allow abortion to be “legal under any circumstances,” and about half of all respondents would allow abortion to be “legal only under certain circumstances.”
The normative significance of abortion-on-demand is comparable in many ways to the normative significance of slavery.
Slavery rejects the humanity of slaves, while abortion rejections the humanity of children in the womb.
Slavery denies the personhood of slaves; abortion denies the personhood of children in utero.
Slavery was based upon the lie that slavery was best for the slaves; likewise, abortion is based upon the lie that abortion is best for unwanted children.
Defenders of slavery argued that the government had no right to tell slave-owners what to do with their bodies (the bodies of slaves they owned), and defenders of elective abortion argue that government has no right to tell women carrying unborn children what to do with their bodies (and the bodies of those children).
Southerners argued that they had the right to choose whether or not to own slaves; pro-choice abortionists argue that women have the right to choose whether or not to have abortions.
The South argued that slavery was protected by the Constitution; pro-abortionists likewise argue that elective abortion is protected by the Constitution.
Defenders of slavery argued that abolition would lead to chaos in the country, and opponents of abortion restrictions argue that abortion restrictions will lead to chaos.
Opponents of slavery argued that it was unfair to impose the burden of abolition upon one class (white slave-owners), while opponents of abortion restrictions argue that it is unfair to impose the burden of abortion restriction upon one class (women who want abortions).
Opponents of abolition argued that slaves were not real “persons,” and advocates of elective abortion (like Justice Blackmun in his 1973 opinion for the Court in Roe v. Wade) argue that unborn children are not “persons” in the whole sense, either.
Opponents of abolition argued that if lawmakers would leave slavery alone, it would gradually disappear; and opponents of abortion restrictions argue now that if lawmakers will leave abortion alone, it will recede and fade away.
Slavery was based upon a hierarchical view of race; abortion is based upon a hierarchical view of human life.
Defenders of slavery engaged in the vigorous suppression of abolitionist speech. Likewise, defenders of elective abortion impose draconian limits upon pro-life free speech.
Southerners considered abolitionists to be religious fanatics. Today, supporters of elective abortion consider advocates of reasonable abortions restrictions to be religious fanatics.
Lincoln asked “Is a man not a man because he is Black?” Pro-lifers today ask: “Is a child not a child because she is living in the womb?”
Abortion is the moral litmus test of our generation’s commitment to equality – the equal worth of all human beings. It has tremendous implications for how our nation treats and will treat other classes of inconvenient, unwanted human lives.
Lynn D. Wardle is the Bruce C. Hafen Professor of Law at Brigham Young University. He is author or editor of numerous books and law review articles mostly about family, biomedical ethics and conflict of laws policy issues. His publications present only his personal (not institutional) views.