Tuesday, January 24, 2012

Reflecting on Roe v. Wade

Hello, darkness, my old friend.
I’ve come to talk with you again.
—Simon & Garfunkel, The Sound of Silence

Last Sunday, January 22, was the 39th anniversary of Roe v. Wade.  I see that President Obama commemorated (celebrated?) the anniversary by issuing a statement that the landmark case makes clear that “government should not intrude on private family matters,”—I’m choking to death on the irony of that one—and that he “remain[s] committed to protecting a woman’s right to choose and this fundamental constitutional right.”  His comments reflect a worldview that developed somewhere in the 1960s, as people convinced themselves that this was somehow about women’s rights and privacy, and that restricting unfettered access to abortion is an intolerable intrusion by government into women’s freedom to control their own bodies.

So let me pose a couple of questions. 

Should I be allowed to kill my parents if I find their existence inconvenient, or if they strain my finances?  If your answer is “yes,” then perhaps you should start lining up all the welfare recipients right now, because there are a whole lot of us who find them both inconvenient and a fiscal drag.  My guess, however, is that your answer is—like mine—no.  So I think the welfare folks are safe.

Should I be allowed to kill my 13-year-old because she has a medical condition that makes her life difficult?  Should I be allowed to kill my infant because my wife has abandoned us and I find I’m just not ready to be a single parent?  Once again, the nearly universal answer to these questions is no, and I expect most of you are shocked I would even raise them.

In each of these scenarios, virtually all of us would answer that I have no right to kill the person in question, and in fact you would insist that the government prevent me from doing so, and punish me if I do it anyway.  Why is that so?

Unless you are an anarchist, there can be little doubt that the single most important and most legitimate function of government is to protect its citizens from being killed by other people.  Indeed, if you could only vest a government with a single power, that would be it.  This idea is enshrined in our Declaration of Independence:

“We hold these truths to be self-evident:  that all men . . . are endowed by their Creator with certain inalienable rights, that among these are Life[.]”

For the Founders, it was obvious in and of itself that every human being has a right to live, and they guaranteed that right in the Fifth Amendment’s promise that “[n]o person shall be deprived of life . . . without due process of law.”  This compelling government interest in protecting life led the Fifth Circuit a couple of weeks ago to overturn a lower court decision striking as unconstitutional Texas’ new law requiring sonograms be made available before a woman can obtain an abortion.

Well, if the scenarios I posed above are not acceptable, at what point does abortion become OK?

As Dr. Seuss taught us in Horton Hears A Who“A person's a person, no matter how small.” 

It is an inescapable fact that an abortion kills a human being.  So unless you are willing to answer the questions I posed above “yes,” and accept the proposition that it is acceptable to kill as a matter of convenience—and you’re not—it is impossible to draw a logically and morally consistent line that permits abortion, no matter how badly you want to make it so.  This very dilemma is the reason the majority opinion in Roe was so strained, circular, and ultimately indefensible.  We all agree it is not acceptable to kill a baby 5 minutes after she has been delivered and the umbilical cord has been cut, but what about just before the cord is cut?  What about halfway through delivery (this is the damnable and unspeakable practice of so-called “partial birth” abortion)?  There’s no articulable logical or moral distinction between those scenarios.  So, too, if we continue backing up 5 minutes at a time; there’s never a point at which we can say there’s a defensible distinction that makes the difference between an acceptable killing of a human being and murder.  Any line we draw is necessarily artificial, because it depends upon an ever-changing degree of either human medical competency (the “viability” concept of Planned Parenthood v. Casey) or human moral conviction (or lack thereof). 

The Constitutional right to life cannot turn on so capricious a hinge. 

Even if you do not accept that human life begins at conception, as I do, you have to concede (as even Justice Blackmun did) that we as human beings do not have the capacity to say with any certainty when it does begin.  All we can know for certain is that, at some point, it does.  As so many argue against the death penalty—so many, interestingly, who are on the pro-choice side of the abortion debate—why would we take the chance of being wrong, particularly when the victim of abortion is so absolutely and without question blameless?

In our Constitutional system, rights sometimes conflict, and one person’s right must yield to another’s.  We resolve these conflicts by balancing the harm to one and the burden upon the rights of the other.  You have a First Amendment right to speak, but that does not entitle you to jeopardize others’ right to life by yelling “Fire!” in a crowded movie house.  In the case of abortion, the harm, obviously, is depriving (or, for you skeptics, at least the possibility of depriving) another human being of the right to life.  There simply can’t be a greater harm than that, which necessarily means there can be no burden on the woman’s rights that would outweigh that harm.  The one exception would be the deprivation of the woman’s own right to life, in which case the scales are even, and the best you can do is the Catholic Church’s teaching that we may not perform an abortion for the purpose of terminating a pregnancy, but if a medical procedure that is necessary to save the mother’s life has the unfortunate consequence the death of the child, that is acceptable.  Beyond that, however, there is no way to claim a burden on a right of the mother that outweighs the unborn child’s right to life. 

We also resolve Constitutional conflicts by seeking out less-intrusive means of enforcing one right without unnecessarily trampling on the other.  With the availability of adoption as an alternative, the burden carrying a pregnancy to term imposes upon a woman is temporary; the harm to the victim of abortion is quite permanent.  It simply isn't necessary, in order to enforce a woman's rights to terminate another's right to life.  Under such circumstances, the balance can’t tilt in favor of an at-best implied "right” to an abortion over the child’s explicit right to life.  

The pro-choice movement has sold people on the idea that abortion is all about a woman’s right to choose, and to control her own body.  This is, put simply, a lie.  Conceding for purposes of this discussion that a woman has this right to choose—the “right to privacy” from which it is purported to derive isn’t found in the text of the Constitution, but instead actually originates from a law review article written by (later, Associate Supreme Court Justice) Louis Brandeis about 100 years ago—that misses the point.  Restricting her access to an abortion in no way diminishes her right to choose or to control her "reproductive health"; she made her choice and exercised her control when she chose to have sex.  The pro-choice movement is not really advocating a woman’s right to choose, but a right to avoid after-the-fact the predictable consequences of the choice she made, and to do so by killing another human being. 

Don’t tell me I’m being unrealistic, that women are going to have sex and get pregnant anyway, and if abortion is illegal they’ll just get dangerous back-alley procedures.  That’s true of a lot of things; but we don’t legalize conduct simply because people will engage in it even if it’s illegal.  People shoot heroin with dirty needles, but there are few outside the Ron Paul campaign who think we should make it legal. 

Nor is this an issue, as Obama’s statement suggested, about ensuring women have the same rights and opportunities as men.  What rights and opportunities do women lack that allowing unfettered abortions cures?  The biological fact is that sex may result in pregnancy, and that pregnancy, if it happens, will be born by the woman; can’t change that with legislation, Constitutional amendment, judicial activism, or executive fiat.  And the sad social fact is too many men participate in the sex, then run from the consequences of pregnancy because they canbut do we really want to encourage our daughters to emulate them in the most lazy, promiscuous, irresponsible, animalistic, and selfish standard of conduct imaginable?  

The truth the so-called "feminists" don't want to admit is that all of both the biological and social  facts of pregnancy are avoidable through abstinencewhich, by the way, is safer than a clinical abortion and 100% reliable, unlike any contraceptive, including The Pilland a woman is always free to make that choice.  And rather than kill the child, perhaps we need to do better at educating our men, and then holding their feet to the fire of responsibility.  But to say that abortion is the answer is to take the utilitarian position that the unborn child is nothing more than a failed science experiment to be discarded and forgotten at will if one deems its implications too imposing or inconvenient.

We’re horrified at cases like Caylee Anthony and Jon Benet Ramsey, and rightfully so.  Something in our very core finds the ultimate revulsion at the deliberate killing of a child, particularly by her own parent.  In most states that allow capital punishment, killing a child qualifies you for Death Row.  It is inexplicable, then, that people would support our government abdicating its most fundamental responsibility and failing to protect the most helpless among us in the place where they should be safer than anywhere else on earth.

The CDC estimates some 50 million abortions have been performed in the U.S. in the 39 years since Roe—about 1.3 million a year, a pace rivaling that of the Holocaust.  Over that time, how many Einsteins have we lost?  How many Mother Teresas?  How many Reverend Kings?  How many honest, hardworking, ordinary Everymans never got a chance?  

How many songs will voices never share?

That is what President Obama commemorated and said he is committed to protecting.


  1. "...she made her choice and exercised her control when she chose to have sex."

    Not always, my dear brother. Even within the confines of marriage.

  2. Pathology:

    The rape argument is a little different, and not really what I'm getting at here (although I still don't see that you can justify compounding the number of victims of the crime).

    For purposes of my discussion in this post, let me say that the instance of rape-induced pregnancy is, as a statistical matter, exceedingly rare, especially when compared to the total number of abortions (I've seen a pretty compelling analysis indicating that it's something on the order of 200-500 a year total, compared to 1.3-1.5 million abortions, and interestingly about half of those rape-induced pregnancies are carried to term despite the availability of abortion). Even if you assume that half of all rapes go unreported, you're talking about 200,000 a year, and if we assume that even half of those results in a pregnancy and we abort them all--which won't be the case--that's about 6-7% of the total number of abortions. The real number is certainly much smaller than that. The fact is that the OVERWHELMING majority--indeed, nearly ALL--of the abortions in the U.S. are sought as a matter of convenience after consensual sex, which makes the claim that the debate is about a "right to choose" simply and demonstrably false in 97% or more instances. But even if you accept abortion in cases of rape, you can't extrapolate that to an overarching right to abortion on demand as a matter of convenience.