“Before I formed you in the womb I knew you, And before you were born I consecrated you; I have appointed you a prophet to the nations.”
— Jeremiah 1:5
The controversy surrounding abortion law is as dividing as the rift between Civil War North and South regarding the issue of slavery in America. It is a an extremely important subject, especially for the “Right Wing Christian Conservative Block”, as it is called. And the legal nuances inherent in the matter often dominate the decision process in the appointment of Justices to our highest court.
Before I delve into my position on the matter of abortion, though, I feel it is important to point out that the amount of influence the issue has on our decisions to back candidates is often counterproductive, and in my opinion, distracting. Particularly, in the Republican Party, I have found that far too many members absolutely will not even consider voting for a candidate that shares 99% of their virtuous beliefs and political foresight if they are not 100% Pro-Life. Quite literally, stating that you are Pro-Choice in the Republican Party is political suicide.
On the one hand, this steadfast adherence to an issue such as abortion is praiseworthy and I hope that the fight continues to further restrict abortions across our great nation. On the other hand, as a result of this issue, the Republican Party has become entirely too one-issue oriented. This is an impediment to the Republican Party’s ability to implement its proper platform on all other issues as we are losing the vote of the common person more concerned with the economy, education, and the environment.
Here is the perfect example: I sat down to lunch with a client and friend of mine recently. He is a 90 year old Republican who ran his own dental office for almost as many years and co-founded the McLean Bible Church in Vienna, Virginia. Extremely devout, I often tease him that he should have been a preacher.
We got to talking about politics and religion as we always do, and the issue of abortion came up. His view on abortion is that it is always, unequivocally a sin to abort a child unless there is extreme danger to the mother. Every single time the subject comes up, he falls back on the Bible passages of Jeremiah 1:5:
“Before I formed you in the womb I knew you, And before you were born I consecrated you; I have appointed you a prophet to the nations.”
His argument, ostensibly, is that a human being exists at the very point of conception, and therefore its abortion is tantamount to murder if there is not extreme justification.
Playing devil’s advocate, I asked the following hypothetical: If you were a Senator, would you vote for legislation that does allow abortions, but further restricts abortions by requiring all women over the age of 18 to prove risk to their health for their abortion to be legal?
He responded as anticipated – Absolutely not! I countered, arguing that at least it would be a step in the right direction. To that I was satisfied to gain his concurrence. However, many in the Republican Party take the counterproductive stance that any abortion is wrong, and therefore would look past this proposed “step in the right direction.” This type of stubborn mindset is is holding progress hostage – not just as it applies to abortion laws, but also to the remainder of the Republican Platform.
So, what am I? Am I Pro-Life or Pro-Choice? Before I answer, let me note a very real problem in contemporary politics – too many conservatives won’t even listen to a candidate who says he is Pro-Life but believes abortions are proper under some circumstances. Upon a further elucidation of the facts and moral considerations, however, I believe most would actually agree that there is a proper, LEGAL, threshold.
Therefore, I am bold to say, that I am absolutely Pro-Life, however, I do believe that abortions are sometimes an unfortunate necessity and our government does not and ought not have the authority to regulate it to the level of abolishing the practice altogether. Allow me to explain:
The paramount case concerning abortion law, unquestionably, is Roe v. Wade, 410 U.S. 113 (1973). The Supreme Court determined that a right to privacy afforded by the due process clause in the Fourteenth Amendment extends to a woman’s choice to have an abortion. However, the court maintained that the mother’s right to privacy must be balanced against the state’s two legitimate interests for regulating abortions: protecting prenatal life and protecting the mother’s health.
Arguing that the state interests mature over the course of a pregnancy, the Court resolved this balancing test by tying state regulation of abortion to the mother’s trimester of pregnancy. The Court later rejected Roe’s trimester framework, but continues to affirm its central holding that one has a right to abortion up until viability, which the court defined as being “potentially able to live outside the mother’s womb, albeit with artificial aid,” adding that viability “is usually placed at about seven months (28 weeks) but may occur earlier.”
Defenders of Roe argue that case precedent prior to the decision delineated a sphere of private interests and that at the core of that sphere is the right of the individual to make the fundamental decisions that shape family life: with whom to marry; whether and when to have children, etc. However, I would argue regulation of abortion would not be virtually impossible without the most outrageous sort of government prying into the privacy of the home – which was the sole rationale in Roe’s antecedent case of Griswold v. Connecticut, 181 U.S. 479 (1965) where the Supreme Court invalidated only a certain portion of Connecticut law that proscribed the use, as opposed to the manufacture, sale or other distribution of contraceptives.
It is clear that the government would have to sneak into the privacy of the bedroom to determine whether or not contraceptives were being used and it is equally as clear that such privacies must not be invaded without extreme exception. Abortion, on the other hand, is something that can and is “monitored” outside the bedroom and instead in the doctor’s office. Clearly, the level of privacy is much less intimate, though arguably, not necessarily less personal.
However, I believe the debate surrounding the right to privacy as it pertains to abortion law is actually misguided. To begin, one might argue that the protection of a woman’s right to privately abort her child is synonymous to the protection of a woman’s right to murder her spouse in the privacy of her basement. Clearly the government has the right, in fact the mandate to intervene in the latter. What is the difference between the two? It comes down to the true issue at the center of the abortion debate – at what point should the law consider abortion as tantamount to unjustifiable homicide? In other words, when are you committing the murder of a living person?
I believe the decision in Roe was fundamentally flawed. In reaching their decision, the Supreme Court skirted the issue of unjustifiable homicide, writing, “We need not resolve the difficult question of when life begins. When those trained in medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, in not in a position to speculate as to the answer.”
The “difficult” question, though, is central to the state’s compelling interest of protecting prenatal life, and it is fundamental to the debate surrounding the issue of abortion altogether. Therefore, the Supreme Court erred in ignoring the question.
By ignoring the issue of life and when a fetus becomes a person, the court was able to shift the debate toward a red herring – privacy. They focused on the privacy of the pregnant woman and her right to chose whether or not to carry the child to term or terminate. The harm that the State would impose upon the pregnant woman by denying the choice altogether, the court argued, is evident. Maternity or additional offspring might force upon the woman a distressful life and future, mental and physical health might be taxed in childcare and there is also the problem of bringing an unwanted child into the world, among others.
To be clear, I believe that these are compelling concerns. In fact, I cannot even begin to put a value on saving a child from the horrors of growing up unwanted and unloved. And it is unfortunate when a woman becomes pregnant, is abandoned by the father, and her life is ruined financially, socially and often times, spiritually. Further, proponents of abortion will rely on the sudden decrease in crime as a result of abortions, pointing out that since less unwanted children were born, less crack dealers, murderers, etc., were roaming the streets twenty years after the decision in Roe. A popular book, Freakonomics, has an entire chapter dedicated to that very phenomenon.
What it boils down to, in my opinion, is this: Roe’s notion that the state’s interest in protecting prenatal life is trumped by a woman’s constitutional right to privacy in deciding whether or not to terminate a pregnancy, is not only erroneous, but it runs utterly afoul of basic morality and the most fundamental of constitutional guarantees – the right to life.
Does the right to privacy exist? Yes, and I believe, undeniably. Also, I ardently believe that the state must not have the right to interfere in one’s privacy. That is, unless the state has a compelling interest and the regulation is narrowly tailored to address that legitimate interest. In regards to abortion, the state has a compelling interest, and that is the protection of life. Yet the states have been injudiciously deprived of their sovereign right to police that compelling interest as each state sees fit.
Morality is the real issue. Abortion may in fact be “good” for the economy insofar as unwanted children are not brought up in ghettos, crime is proximately curtailed, and the population is controlled, but to champion the right to abort a child in the name of these economic windfalls is disingenuous to who we must be as Americans. Should we legalize crack cocaine and LSD because it would cost us less not to police it? Clearly not, because of the harm these drugs are known to have on the user, but more importantly, the harm it causes the user to voluntarily or otherwise inflict on those around them. Why then should we allow a woman to kill a human being purely for economic concern? We should not.
It is obvious that the state has a compelling interest in making it illegal for me to kill my next door neighbor for slandering me, despite the fact that his defamation of my character is causing me extreme mental anguish and possible economic hardship. So why is it that the state cannot regulate the killing of a fetus? Because it is not a person?!
Despite first declining to resolve the question of when life begins in reaching its decision, the court in Roe spent considerable time persuading itself that a fetus is in fact not a person as defined in the Constitution and therefore is not protected as to its right to life. In their analysis of all the contexts in the Constitution in which the word “person” was used, the court was correct in finding no indication that it had any possible pre-natal application. They wrote, “all this, together with our observation that throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today (in 1973) persuades us that the word “person”, as used in the Fourteenth Amendment, does not include the unborn.”
The court erred here as well. To begin, while the word “person” is never defined to include the unborn within the four corners of the Constitution, the converse is equally as true – the Constitution does not expressly remove the unborn from the definition. And as to abortion laws being “freer” at the time of ratification – are not the protections of personhood afforded African Americans despite the fact that slavery was rampant when the Constitution was drafted? Could it be, that despite all their collective genius, the founding fathers simply did not think to define person?
Next, the court turned to legal precedent, arguing that the law of torts and inheritance, for instance, has been reluctant to endorse any theory that life begins before live birth or to accord legal rights to the unborn except in narrowly defined situations and except when the rights are contingent upon live birth. However, consider this: aside from natural miscarriage, wouldn’t the fetus live and be born but for the intervening abortion? To terminate the pregnancy, you must kill the fetus. Logically, does this not mean that there is life being terminated?
So, an abortion, boiled down to its logical absurdum, is the intentional killing of a living organism that, without intervention, will become a human being. Who, then, is the court to decide that a human being, which the state has a compelling interest in protecting, exists only upon viability? Scientifically speaking, yes, the fetus cannot survive as a human outside the womb prior to viability, albeit with artificial assistance, but abortion terminates the further development of that fetus when it naturally could have reached viability.
The question then, is not one of privacy, but rather one of a compelling interest in protecting life. It is not the place of the Supreme Court to decide when the compelling interest of protecting life begins or ends. Rather, this is a question that ought to be left to the individual states. The protection of the life is properly a decision that must be made by each state’s moral majority through the branches of each state’s independent representative government. Therefore, it is my opinion that the court’s decision in Roe exceeded the judiciary’s proper Constitutional reach and should be overturned.
Each state ought to be left to decide for themselves whether or not their interest is strong enough to regulate abortions prior to viability. Why? Because the constituents of each state can decide for themselves as to when life begins and when life should or should not be protected as pitted against the concerns of the mother. The moral majority, which I hope would adhere to the belief that life begins at conception, would determine the appropriate level of regulation propounded by their state legislatures. This is the true spirit of our democracy.
The court itself said that it cannot determine when life begins. Therefore it must not be permitted to tell the states that their constituents’ belief that life begins at conception is erroneous and therefore not compelling.
Pro-choice advocates argue that the right to privacy at issue is the woman’s interest in having control over her own body and bodily integrity and, therefore, this privacy is one that is of even greater importance than the right to be left alone in the home. To an extent, I agree. But they are missing the point entirely. They are seeing only one side of the issue presented.
The state absolutely should not have the power to require a woman to have a child. However, the state does and ought to have the power to regulate against homicide.
There are situations, such as self defense, where homicide is justifiable at law. For similar reasons, I do believe that abortion is sometimes, though narrowly, justifiable.
First, and foremost, in the case of rape, I believe that the woman, having not made the conscious and voluntary decision to engage in intercourse, should not be required to carry a child to term. To do so would perpetuate a second wrong on the pregnant victim by requiring her to endure the physical, mental and social consequences of a pregnancy not a corollary of her action.
Let us then look at the issue of abortion through another lens: Sentience. Sentience is defined as the state of having the power of perception by the senses; consciousness.
When a woman makes the conscious decision to engage in intercourse, she voluntarily assumes the risk of pregnancy. Having assumed that risk, and having become pregnant, her decision to abort the unwanted child is one to kill a life in being, albeit one arguably without sentience. What we have, then, is a helpless life that has been brought into being without consent and killed by a sentient woman unable to own up to her mistake. I believe it is absolutely fair for a state to determine that they have an interest in protecting the helpless life over the privacy concerns of the imprudent mother.
In the case of rape, however, the mother has not been imprudent insofar as assuming the risk of pregnancy as a consequence of intercourse. What we have, then, is a matured, sentient woman in whom the family and also the state have already invested, pitted against an insentient fetus. It is proper for the court determine that the matured woman’s right to privacy outweighs the fetus’ right to life.
This brings me to the very question I posed to my friend at lunch: If you were a Senator, would you vote for legislation that does allow abortions, but further restricts abortions by requiring all women over the age of 18 to prove risk to their health for their abortion to be legal?
In one form or another, all states have statutory rape laws on their books. The theory behind statutory rape, with respect to a minor female, is that she is too young to give true, voluntary consent to intercourse because of her innocence and ignorance, among other factors, and therefore intercourse with her is without consent – statutorily defined as rape.
I ask you this then: what if a 16 year old girl engages in intercourse with her boyfriend and gets pregnant? Logically, it follows that she did not give true, voluntary consent to the intercourse and that because of her naivety she did not truly assume the risk of pregnancy through her actions.
In this case – that is the case of a minor, as defined by state statute, becoming pregnant – I posit that it would be constitutionally impermissible for the state to ban the abortion altogether. Here, the innocence of the minor mitigates against her culpability, and her decision to have or not to have a child, her right to privacy, could be argued to outweigh the compelling state interest of preserving prenatal life, just as in the case of rape.
Now, having said the above, it is important to note that there are instances when even minors are to be treated like an adult in the eyes of the law and the same should apply in the case of abortion. By way of example, a 16 year old boy can be tried as an adult for murder. What of the pregnant 16 year old: can she be treated as an adult and her abortion outlawed except to protect her health? Quite possibly, yes, but it is the state legislatures, not the Supreme Court that should make that determination.
LEADING BY EXAMPLE: Revolutionizing Law and Politics 