Ruth Marcus spurred quite a discussion earlier this month with her Washington Post column, entitled “I would’ve aborted a fetus with Down syndrome. Women need that right.” Ms. Marcus’s argument was nothing if not blunt. In fact, she elevated the debate by clearly laying out the competing moral claims and explaining how she weighs them.
That’s a lot more than can be said for Leah Torres. She’s an ob-gyn and outspoken leftist who achieved notoriety recently for some gory comments about the abortion process. More frustrating for me was her response to a question about whether she would perform an abortion the day before the due date. The response from Torres: “Would you live on Mars? I can’t imagine this scenario, so I can’t give a fair answer.” Needless to say, the question about late-term abortion poses a classic “hard case” to probe the doctor’s views on exactly when the right to life begins, or when that right outweighs women’s health interests. It is an entirely fair challenge, and someone who is confident in her views about abortion should be happy to answer it. Claiming (dubiously) that a hard case is unimaginable – and therefore deserves no analysis -- is simply a cop-out.
I wrote about another example of “hard-case denial” for National Review earlier this week. To make her point that race-based admissions generate a racial skills gap at universities, Penn Law professor Amy Wax observed that black students at her school “rarely” graduate in the top half of their class. The dean, Ted Ruger, promptly declared her observation false – but you’ll have to take his word for it, because no data are forthcoming. “Penn Law does not permit the public disclosure of grades or class rankings,” he wrote. That excuse is about as lame as it gets. Simply reporting the percentage of black students who graduate in the top half of their class would obviously not reveal confidential information about any individual.
Dean Ruger is avoiding the hard case. Racial preferences in admissions may seem anodyne when presented as merely breaking ties in favor of minority applicants. In that case, standards wouldn’t necessarily suffer. But what if admissions standards must be dramatically lowered in order to achieve the level of racial diversity that elite law schools aim for? That’s the hard case. Rather than run from the data, Dean Ruger should present it openly. If, as expected, the percentage of Penn Law's black students who graduate in the top half is far below the 50 percent that it would be under a merit-based system, he should own it. “Diversity is so important to our school and to broader society that lowering standards is a worthy price to pay,” he should declare. At least then we’d understand his thinking.