Here is why I do not think Natural Law requires a state to protect the unborn. By the laws of nature, parents have a primary interest and duty to produce and rear their offspring. In a state of nature, without insanity or extreme threats, that is what primitive humans do, that is what the anthropoid apes do, that is what mammals do. A woman's obligation to bear her child transcends the state's authority, thus if a state declared that she was not permitted to bear a defective child who would be a burden on the taxpayers, a moral mother would be duty-bound to disobey.
The great sin in abortion is not that a post or pre-christian state permits such an abomination but that a mother kills the being she is most obliged to love and protect. In transferring, even in our thoughts, that responsibility to government, we are not only missing the larger moral issue, but we are heading in the direction of the unbalanced christian women, mostly Catholics, who want to adopt embryos and bear them.
By the way, I don't think under the Natural Law that a political authority is bound to protect born children who are the family's and not the government's responsibility. Obviously a decent commonwealth, pagan or Christian, will be concerned but it is not a good idea to transfer, in principle, such responsibility to the rulers of this world. The Roman patria potestas conferred a life-long responsibility on a father to determine questions of life and death for children of any age who were in his manus or potestas. This is a very complicated issue and the cases in which a father exercised such a right with impunity so very few that it indicates the strength of family attachments may be stronger where the state has only a small role than when it assumes full responsibility.
Then in response to a follow-up:
The question was originally posed in terms of Natural Law. Obviously, under different human circumstances, different approaches will be more or less useful. What works in the world of Beowulf will not necessarily do in the world of Booth Tarkington--though the world of Beowulf is becoming every day more relevant.
I'd give up the word state, with all its historical and ideological baggage. Was the Athenian polis a state? I don't think so, at least not in the sense that the UK or the USA today are states. This is much too big an issue for this column, but in general a state implies a permanent administrative system. It is not that a political community has no interest in protecting children, only that its laws and actions must not be undertaken--as they are today--in a way that destroys the very natural institution responsible for children.
I'll give two civilized examples of how it has worked in the past. In Athens, a murderer had to be prosecuted by the citizen-victim's kinfolks, while the city supplied a court. At Rome, when people were found to have violated a law prohibiting bacchanalian ceremonies, the guilty parties were turned over to their families for execution. There is probably an infinite number of possible arrangements that do not put politicians in charge of family relations.
Published today: Arizonans Never Never Never Shall Be Slaves
While opponents of state legislation on immigration are forever repeating the dogma that only the Federal government has jurisdiction in matters of civil status and immigration, this is nowhere stated in the US Constitution. In fact, from the beginning some states had their own laws on immigration. Jefferson and his allies wanted to protect their French friends from the Federalist administration of John Adams. The Kentucky and Virginia Resolutions drafted by Jefferson and Madison were acts nullifying the Alien and Sedition Acts.
Those were radical measures that are still disputed today, but many states did pass their own citizenship, immigration, and naturalization laws. Here in Illinois, Joseph Smith and his brother were arrested for treason against the state, when the Mormons of Nauvoo refused to allow writs to be served in their community. And after WW I, during the anti-Red hysteria that gripped the country, the state prosecuted Swedish labor leaders in Rockford under a recently passed treason statute. On the frontier, in some communities, non-citizens were allowed to vote in local elections, on the grounds that they paid taxes and had a stake in the community. Until
It is hard for foreigners--and most Americans today--to understand, but in a truly federal system states and local communities enjoy rights and exercise authorities that are undreamed of in more centralized states. If there really was an "American way," federalism was it. Note the past tense.
With the growing centralization of political power, the Federal Government has inevitably become the locus for authority immigration law, and its enforcement, and neither Governor Brewer nor the Arizona legislators wish to reverse this trend. Nonetheless, the fact that the national government is supreme in these matters is not treated, in parallel cases, as a nullification of the states' right to enforce parallel legislation on drugs, alcohol, firearms, and assassination.
The issue before the Court is not really one of jurisdiction but of the rights of the American citizens in the states to decide who will be their neighbors and fellow-citizens. For the American left, all distinctions are invidious, whether they are based on race, sex, sexual orientation, national origin, or civil status.
Readers of Roman history known the story of the gradual extension of the franchise that culminated in Caracalla's decision to grant citizenship to the free population of the Empire. In its early phases, this was an enlightened policy that made loyal citizens out of conquered nations, but by Caracalla's time, it was a hollow gesture whose most serious effect was to subject more people to taxation. As time went on, the citizenship of which St. Paul was so proud, became meaningless. It was replaced by distinctions of wealth and status. A mere citizen in Diocletian's day could be tortured like a slave.
The comparison of the American and Roman empires in decline is a platitude, but this parallel is suggestive. Both began as highly decentralized federal systems that permitted local jurisdictions--the Roman municipia, the American states--to manage local affairs. They ended up as top-heavy monarchies where only the privileged few--Roman bureaucrats and American rich people and privileged minorities enjoy anything like the status of citizens.
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