The best answer to the problem of abortion is the same as with any other sin. It is found in the preaching of the gospel. Still, legal strategies are not entirely out of the question when it comes to simply curbing a practice and I would like to address those here. In my last related post, which was about the reversal of a ban on a specific type of abortion, I concluded that these kinds of bans would never work unless they first addressed the fundamental rights involved. There are three: 1) The right of the state to protect the lives of its present or potential citizens; 2) The right to privacy (under which file the right to choose); 3) The right of all persons to life (unless forfeited for a capital crime and under due process of law). Current abortion law, as outlined in Roe v. Wade, is a balancing act between the first two. The third right remains intact but is made moot by the fact that the unborn are not legally recognized as persons. If they were, then the interplay between the first two would be moot, for abortion would be illegal except in the case of clear and present danger to the life of the mother. This much is admitted in Roe v. Wade section IX: The appellee and certain amici argue that the fetus is a "person" within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment. [Emphasis mine]
For the moment, though, and in order to understand the balance between the first two rights, please agree that the unborn are not persons. The right to privacy is never actually stated in so many words; consequently, many abortion opponents try to argue that it does not, in fact, exist. There is a misunderstanding here to the effect that this right entails the right to murder. It does not. The right to privacy is a matter of common law. In its simplest form, it is the right to be left alone. It is the right to be free from state intereference in one's private life. Be careful not to limit the concept of privacy to things that would be embarrassing if any one else witnessed them. This right coveres such things as personal medical decisions, family relationships, child rearing and education, etc. Any attempt to toss this one out will have some undesired consequences. The right is not absolute. The right to raise your children as you see fit does not include the right to abuse them. The state can and should step in. Similarly, the right to an abortion is balanced (at least in theory) against the state's interest in its present and potential citizens.
Roe v. Wade divides pregnancy into trimesters (we will leave aside the question of whether in so doing they intruded into legislative ground- it is de facto the law of the land). Stipulating to the facts as understood by the court, first trimester abortions are equally or less dangerous to the life and health of the mother than is natural birth. The state, therefore, has no compelling interest in restricting the woman's right to privacy. Second trimester abortions are more dangerous to the life of the mother; consequently, the state has the right to regulate how these abortions are done. Two factors are present in the third trimester: 1) Greater risk to the life of the mother and, with that, more restrictive regulations; and 2) the immenent potential for the state to gain a citizen. This last point means that the state can proscribe third trimester abortions altogether. But only in theory. While the states interest can override the woman's right to a personal decision, it cannot override something like a claim to physical or mental distress. Some of these claims may be legitimate, others are just loopholes. The bottom line in practice is that if a woman wants an abortion, she gets an abortion. And so it should be; that is, if the unborn are not persons.
The court considered a combination of factors in its determination of pre-natal nonpersonhood; some more legitimate than others. 1) It noted the lack of a agreement within philosophical and religious circles. 2) It noted certain legal precedent for not affording the unborn the same civil rights (e.g., inheritance rights). 3) It noted the history of abortion within common law. 4) It looked at the word "person" as it is used in the Constitution. The first is not quite to the point. While lawmakers would certainly want to consult various opinions on the matter, the final determination of legal personhood is a matter of legislation. On the second, the court overlooks the distinction between the rights of citizens and the rights of persons. It may be the case that the unborn have a history of fewer rights because they are not seen as persons, but it is not necessarily so. It is more likely that the intents of the lawmakers were diverse.
The third factor, abortion within common law, notes that the relatively stringent abortion laws found in the United States are of comparitively recent origin; not much over 100 years at the time of the ruling. They note that abortion was rarely, if ever, illegal before the first "quickening," that is, the first detectible movement in the womb. After this, the punishment was still less than was that for causing a post-natal death. Nonetheless, the facts in evidence are insufficient to warrant the court in concluding that the reason for this lesser punishment had anything to do with the personal status of the fetus.
As previously noted, it had been argued that a fetus is person within the meaning of the 14th Amendment. However, the amendment does not state this in so many words, nor are there any cases that state this. The court looked at the use of the word elsewhere in the Constitution, noting: "Person" is used in other places in the Constitution: in the listing of qualifications for Representatives and Senators, Art. I, 2, cl. 2, and 3, cl. 3; in the Apportionment Clause, Art. I, 2, cl. 3; 53 in the Migration and Importation provision, Art. I, 9, cl. 1; in the Emolument Clause, Art. I, 9, cl. 8; in the Electors provisions, Art. II, 1, cl. 2, and the superseded cl. 3; in the provision outlining qualifications for the office of President, Art. II, 1, cl. 5; in the Extradition provisions, Art. IV, 2, cl. 2, and the superseded Fugitive Slave Clause 3; and in the Fifth, Twelfth, and Twenty-second Amendments, as well as in 2 and 3 of the Fourteenth Amendment.
The very next line is as obvious as it is irrelevant: But in nearly all these instances, the use of the word is such that it has application only postnatally.
Why, yes Mr. Justice Blackmun, very few 30 year old fetuses ever run for Senate. There is no need to count 3/5 or any fifths of them for tax purposes. They are unlikely to commit any crimes worthy of extradition. They make very inefficient slaves, but, at least, they never run away. And the jury is still out on their effectiveness as Electors.
While the intelligent conclusion would have been that none of these are applicable to the question of pre-natal personhood, the court, instead, writes: All this, together with our observation, supra, that throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today, persuades us that the word "person," as used in the Fourteenth Amendment, does not include the unborn.
This misses entirely the point of the objection.
This same section of the Fourteenth Amendment that protects the rights of persons also provides the constitutional basis for the right to privacy. It reads: All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Justice Rehnquist, in his dissenting opinion, failing to draw the distinction between the right to privacy and the denial of the right to life, argues against the former. Nevertheless, he does make a good point against the Fourteenth Amendment as a whole being used in favor of so -called abortion rights. He writes: By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today. Indeed, the Texas statute struck down today was, as the majority notes, first enacted in 1857 and "has remained substantially unchanged to the present time."
If there really were a right to an abortion contained and intended in this amendment, it would not have taken over 100 years to notice that something was amiss. Furthermore, the framers of this amendment could not have been unaware of the implied status of person found in these several laws.
It is up to the court to prove, if it wants to draw this conclusion, that the framers of the Fourteenth Amendment specifically meant to exclude the unborn. If it were a simple matter of not thinking about them, then the guarantee of life would apply whenever any legislature within the United States decided to recognize them as persons. This was implicitly done when Texas passed the anti-abortion law in question. The court acknowledges this intent: Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer.
But the legislature is. Nevertheless, the court denies them this right and substitutes its own speculation anyway. It begins section X of its decision: In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake.
This resides among the worst cases of judicatory legislation. By denying Texas the right to its own theory, the court substitutes its own, which is that this life cannot be pre-natal.
If there are to be any effective challenges to Roe v. Wade, they need to address the fundamental rights involved. The best option, as I see it, is to challenge the court's legislative usurpation by passing laws that explicitly define when personhood begins. This is where it would be possible to take a gradualist approach. We can compromise at some point other than conception. The definition needs to be reasonably demonstrable. I believe that personal life begins at conception, but I would have a hard time demonstrating this, much less proving it. A far more plausible objective is for legislation to connect the beginning of personal life with viability defined with or without life support. The actual age of the fetus would decrease as the technology advanced. I would not, however, advocate a challenge to the right to privacy. Not only does this right protect women who choose not to have an abortion, but it is not possible to open a significant dialogue by proposing to take away someone's rights. We need to protect those rights while at the same time making a convincing case that they don't always apply.
Posted by kcourter at julho 31, 2004 8:03 PM