Roe v. Wade and Reproductive Freedom (Geocities Rescue)
The anti-choice movement believes that morally, Roe v. Wade is a human tragedy. They forget that in the largest states abortion had already been legalized prior to Roe, or the criminal code has since been amended to legalize abortion. If Roe were overturned tomorrow, abortion is still legal in many places. However one feels about the morality of abortion, Roe is also constitutionally correct. Two constitutional principles apply: privacy and legal existence. The right to privacy is subservient to that of existence, as any act between two or more persons is regarded as public when the question of life is at stake. The involvement of a physician adds a third person, the conduct of which is also public when the fate of a protected individual is at stake. The whole question of whether this individual is protected legally is the crux of the privacy issue.
Regardless of the child's physical and moral existence it has no legal standing before its birth under the currently accepted interpretation of the United States Constitution. Under Article One of the Fourteenth Amendment legal existence is granted to those born or naturalized in the United States. A fetus is neither. As this determination is made in the federal constitution, the individual states have no standing to vary from it. States rights in this area are as dead as legal segregation.
Article Five of the same Amendment lodges the enforcement of the Amendment with the United States Congress. Part of this enforcement power is to further define when life begins, and when it must be protected. Neither the Court nor the States hold this power. Therefore, for the Supreme Court to overturn Roe v. Wade would be a mistake, undoing Federal sovereignty in civil rights cases. Of course, this reading of the amendment gives Congress the power to lay waste to the right to legal abortion, which it won’t do.
When I was an intern in college in the office of ultra-pro-lifer, Roger W. Jepsen, I broached the subject of the Fourteenth Amendment with one of the Legislative Assistants responsible for this issue. She offered that, given public opinion on the issue, Congress is not about to sneak in a ban on abortion. This is not a change that any congress is willing to make just because it has the requisite number of votes.
Those who seek to ban abortion need to ask themselves how much police intervention they wish to accept to secure a prohibition on abortion. Is it ever possible to eliminate abortion with the police power of the state in such a way that no abortions in fact occur, including those that are self-induced? How much intrusion into the life of fertile men and women, especially married couples, are they willing to accept in the areas of individual privacy and sexuality? I contend that police intervention into sexuality or the doctor-patient relationship is not to be undertaken lightly.
Enlightened societies set forth and guarantee basic rights for minorities in an attempt to limit the advance of a police state. The state has a responsibility to protect human life. However, if protecting all is not possible the state must protect the largest number. It is not enough to protect just the innocent. The state, and the people who make up the state, are responsible for the full effect of its actions, including those who are injured or die as a result of defiance. The rights of all are to be protected in a manner that is agreeable to all, or the society itself is poorer. An outright ban on abortion is not a solution that makes society either richer or holier, since a police state is never holy.
The rights of women vis-à-vis the state in the matter of reproductive choice must be considered and guaranteed. The question of the rights of women as a class is important. However, the main protection the society grants are to individuals. As a class, women rightly rise up so that their rights are respected. The major argument for legal abortion is the woman's right to control her body. This argument is not to be taken lightly. The decision to bear a child is the most personal of decisions a woman has to make. The role of the state in such a decision is a touchy matter, especially in societies that call themselves free. As legally the primary interested party is always the woman, the issue deeply involves women's rights as a whole and reflects their place in society.
Women must also be conscious of how the right to abortion is misused. Sex selective abortion is becoming a fact of life in many societies (it is even practiced just north of the border), often at the expense of female children.
We have now set up quite a quandary. As Christians, we accept that at gastrulation, the point of ensoulment, a child has basic human rights. As Libertarians, however, we do not countenance using the criminal law to protect these rights. How to resolve that quandary is the topic of the next essay.