Given the sheer bulk of press already directed toward current events and their impact on the 2016 presidential election (via mention in the Republican debates), I'm going to skip the Planned Parenthood controversy for the time being, and focus on deeper issues: the constitutionality of Roe v. Wade, and the inherent wrongness of abortion.
As a
former “pro-choice” person, I used to vehemently support the “right” to kill
unborn people, primarily because in my teenage rebellion against family,
tradition and Church, it seemed a rational, humane position to take, one
unencumbered by concerns about entities that had no means of voicing their objections,
and therefore no objections to raise. In
my high school years, feeling the onset of a strongly competitive spirit but
having little in the way of interest in athletics, I engaged in activities such
as political debate. It was only late in
that period, after a particularly successful debate, that I realized I was
engaging in some rather vicious dehumanization in order to psych myself up for
the argument. My debate partner and I
had done some brainstorming on beneficial uses of aborted fetuses. I will spare you the details.
Once I
realized that I’d had to go to such extremes in order to prevent myself from
viewing the unborn as human, and further had made the connection between this kind
of dehumanization and the kind that was formerly used to justify slavery and
other abuses, I withdrew from the scene for one of those agonizing reappraisals
of the situation. And I came to the
conclusion I’d been wrong all along. It
wasn’t a continuous process. There were
intervals of a few months at a time during which I didn’t think about the issue
at all. But the pace of transformation
was accelerated when I entered college at the University of Houston in the fall
of 1988.
As an
aspiring writer, and role-playing-game enthusiast, I joined the Sci Fi /
Fantasy Guild, a community of like-minded folks who, among other things, put
out a monthly newsletter, the Purple
Podium, consisting mostly of the short stories and poems of the club
members. We also met weekly to play
RPGs. But membership carried with it
certain more humdrum duties, among which was the maintenance of the club’s
carrel down in the Student Underground facility. As it happened, this desk was shared with the
College Republicans, and adjacent to that used in joint by the College
Democrats and the Gay / Lesbian Students Association. Each member of each club was required to sign
up for an hours’ duty at the carrel every week or so, and since the Underground
was a reasonably quiet and productive place to hang out between classes, I
often met some of my clubmates down there even when not pulling security. Allan Woodworth, another aspiring writer, was
also a Catholic, and already more conservative than I. He was also, by virtue of his longer
membership in the Guild, more privy to one of the Underground’s main
attractions: the ongoing debates between
the College Republicans and College Democrats.
By having invited me into the Guild, he is largely responsible for the
ideological transformation that followed.
Over the
course of several months, I listened in as the Republicans and Dems debated
social issues, economic policy, and questions of rights, and I found that the
Republicans simply made a better case, one that was grounded in first
principles and reason rather than in emotion and a violated sense of
fairness. Abortion was just one of
several issues that I changed my position on.
Bear in mind this was well before the era of social media and weblogs. USENet was of course nearly a decade old by
that time, but most of my compatriots had yet to discover the Internet outside
of the document-search capabilties at terminals in the university library. I had already spent a few years BBSing, so
had already come under sway, to some extent, of the “Internet disinhibition
effect,” which actually predates the public Internet. Suffice to say that, although my technique
has adapted somewhat to the online environs I’ve inhabited since then, as a
college student I was more or less a product of the debate norms that I was
exposed to at that carrel. And the
underlying principles of my ideological position remain firmly rooted in that
time, although my understanding of nuances has improved incrementally in
response to the various debates I’ve participated in and sources I’ve studied
since then.
Over
the ensuing decades, I’ve come to realize that there are several different
lines of evidence converging on the conclusion that abortion is—in cases where
the mother’s life isn’t threatened by the existence of the fetus—simply wrong. There is no moral basis for the decision to
abort except for self-defense. There is
no rational basis for excluding the unborn from personhood. There is no Constitutional basis for the
denial of human rights to the unborn.
And there is no scientific basis for such prejudices as “life begins at
birth.”
In
dealing with issues of this complexity, we have to consider many different
factors. There are Constitutional
considerations, moral considerations, and biological considerations. It’s my opinion that Constitutional
considerations are part of the moral bedrock of our society, so when it comes
to prioritizing between these sets of considerations, there is no major
distinction between “Constitutional” and “moral.” As morality is the sum total of the norms and
values of a society, and as any society as large as a nation necessarily varies
considerably in morality, we have to look past geographic variability and down
to the core values shared by most or all Americans. The set of documents comprising the
Declaration of Independence and the Constitution frames those core values. It provides a scheme whereby rights can be
defined, and thereby protected from government infringement. It does not grant rights; it merely provides
protection for rights that are agreed-upon by society. The language of the day utilized phraseology
such as “God-given” and “granted by their Creator,” in order to distinguish the
concept of fundamental rights from those granted by government, which had
heretofore been the norm worldwide. For
those who do not accept the existence of a Creator, or do not wish to inject a
Creator into human politics, it’s as reasonable to assume that rights instead
arise from society, from its own demands and expectations, and as such, are
expressions of human universals. And
this view turns out to hew fairly closely to the emerging understanding of
human society and civilization, as exposed by ethology, evolutionary psychology
and paleoanthropology. The notion of a
“Social Contract” was proposed by various Enlightenment thinkers, notably John
Locke, whose expression, “Life, liberty and property”—the basis of all civil
rights—has been euphemized into the somewhat more famous “life, liberty and the
pursuit of happiness.” The idea of the
Contract, in Locke’s day, was that the government arises via the consent of the
governed, and can only maintain its power to govern as long as the governed consent
to it. And the intent of the
Constitution was, in part, to incorporate the demands of the Declaration,
thereby enshrining “Life, Liberty and the Pursuit of Happiness”—in that order—as the most fundamental of
civil rights. No government could be considered
legitimate if it failed to protect these.
The very position of the stated fundamental rights is a statement on
their priority. When any two rights come into conflict, we are to prioritize
the right to Life above all else.
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| Yep. You've seen this one before. |
The
idea of the Social Contract is anathemic to the specific notions of socialism
and anarchism that arose in later centuries, some of which denied that a right
to property exists, and others of which denied that there is any such thing as
“consent of the governed.” Later findings
from the realms of sociology and anthropology argue otherwise: property is an essential and natural aspect
of life in civilization, and there is indeed a form of social contract binding
individuals together in society. But in
the modern synthesis, the Social Contract doesn’t deal specifically with
government, but with all social bonds.
We agree, implicitly, to be bound by the norms, values, conventions and
practices of our fellow men, because it is only on their indulgence—only on the
basis of “kinship”, which in civilized society relies on the sharing of norms
and values—that any individuals are permitted to live in society at all. So it is possible to draw a distinction
between the “Lockean” brand of Social Contract, which is the basis for Constitutionalism,
and the later, “Ardreyan” form, which is rooted in the Lorenzian basis for
evolutionary psychology and ethology.
All human society requires group cohesion; all members of a group cohere
on the basis of kinship. In the natural
state, kinship is purely genetic. In
civilized society, kinship is instead a matter of practice, of behavior, of
consensus. In the natural state, to be
“like us” is to be closely related to us.
In the civilized state, to be “like us” is to share norms and values.
But the
essential fact remains the same, no matter in what century or social context we
regard things: rights are not granted by
government, but inherent in our existence as human beings. Government
can only withhold rights; it can never grant them. It is our common adherence to norms that
determines what we will regard as rights, and what we will regard as
privileges. It is the duty of government
to protect rights; it is the duty of society to accord privilege, most
frequently for merit, and to see to the needs of individuals. It follows that there is a fundamental
distinction between rights and privileges, and that privileges are not the
federal government’s, or the Constitution’s, purview. Society will not grant any right that it
finds morally repugnant, nor will it demand that government protect such
rights. And this is clear, for instance,
in the abortion debate. Prior to the Roe vs. Wade decision, 48 of 50 states
criminalized abortion on demand. If we
assume that state legislatures act at the behest of their constituencies, then
we can conclude that the vast majority of American people regarded abortion as
morally repugnant, and inconsistent with their views and expectations of
liberty.
The
question has been hotly debated ever since.
Obviously, the unceasing resistance to the Court decision is indicative
that large portions of American society still regard abortion as morally
repugnant. Rasmussen polls put the split
in favor of the pro-life position: 49%
of people are pro-“choice” in general, whereas 55%—including a portion of those
nominally pro-“choice”—regard abortion as morally wrong under most
circumstances. After nearly 40 years of Roe vs. Wade, the pro-abortion position
has inched toward the majority view, but has still not achieved it. It’s clear that in some (if not most) states,
legislatures would still criminalize abortion, had not SCOTUS struck down such
criminalization. So the center of the
debate is, now as it was then, the question of whether SCOTUS’ decision was in
fact Constitutional.
I've laid out a fairly detailed argument against Court discovery of rights in a previous weblog post on the Obergefell v. Hodges decision, but I'll touch on the highlights here.
I've laid out a fairly detailed argument against Court discovery of rights in a previous weblog post on the Obergefell v. Hodges decision, but I'll touch on the highlights here.
In such
matters, I grant a great deal of credence to my former political science
professor, Jeffrey Segal, and his coauthor Harol Spaeth, who together wrote the
text, The Supreme Court and the
Attitudinal Model…not least because of the book’s objectivity. Although they never clarify which is which,
they make the point that one of them is pro-“choice” and the other pro-life,
and that although they disagree on the morality of abortion, they agree as to
the unconstitutionality of the decision.
They cite the Constitution itself, as well as the Court’s procedural
rules, in making their case: although
the Court will, most of the time, enact its own policy preferences (in
accordance with the Attitudinal Model) rather than strict interpretation of the
Constitution, this does not justify judicial activism, the practice of
“legislating from the bench.” A thorough
examination of the relevant Articles of the Constitution (Articles I and III)
will demonstrate that at no point in the document is the power to legislate
granted to the Courts. The principle of
“Separation of Powers,” inherent in the explicit language of the various
Articles, is to limit the power of each branch of government, and permit them
to check and balance the powers of the others.
To grant the Court the power to legislate would be to give it sweeping,
unchecked powers, the inevitable result of which would be tyranny.
Article
I, Section I of the Constitution reads:
“All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”
Section
8 of the same Article, reads, in part:
“To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
“All legislative powers.” “To make all
laws.” That’s very clear-cut. The legislative power belongs solely to
Congress.
Article
III of the Constitution reads, in its
entirety:
“Section. 1.
“The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.
“Section. 2.
“The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;-- between a State and Citizens of another State,--between Citizens of different States,--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
“In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
“The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
“Section. 3.
“Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
“The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.”
There
is nothing in there whatsoever that grants the Courts the power to legislate
from the bench. There is nothing in
there whatsoever that grants the Courts the power to act on any “rights” that
are not explicitly enumerated. Nor, for
that matter, is there anything in there that grants the Court the power of judicial
review.
What is
at issue in the Constitutional question is whether the Court has the power to
revoke state law on the basis of “penumbras and emanations” from the
Constitution, or instead must rely on explicit language when deciding
Constitutionality. On the face of it,
it’s pretty self-evident that in the absence of specific language pertinent to
a questioned liberty, there is no standard against which Constitutionality can
be gauged. If there is no specific
enumerated right being promoted, in other words, then there is no basis for comparison.
What some
have done, in an effort to wriggle out from under this restriction, is to argue
that the Ninth Amendment protects rights that have not yet been
“discovered.” Unfortunately for this
position, this does not apply to acts of the Court, but only to acts of
Congress. The text of the Amendment
reads thus:
“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
What
this means is that Congress isn’t limited to only legislating on the basis of
rights that had been explicitly described as of the time of ratification of the
Constitution. This gives Congress the
freedom to “discover” additional rights.
Since acts of Congress are subject to the will of the electorate, this
implies that all such additional rights derive from the will of the
people. Pro-choicers construe this to
imply that a lawsuit brought by an individual is a valid form of
discovery. However, since this form of
discovery does not result in any actual law, it does not result in anything
being added to the Constitution. It does
not result in explicit language that can be used as the basis of review. From the Wiki on the Ninth Amendment:
“It is important, when discussing the history of the Bill of Rights, to realize the Supreme Court held in Barron v. Baltimore (1833) that it was enforceable by the federal courts only against the federal government, and not against the states. Thus, the Ninth Amendment originally applied only to the federal government, which is a government of enumerated powers.”
And:
“Subsequent to Griswold, some judges have tried to use the Ninth Amendment to justify judicially enforcing rights that are not enumerated. For example, the District Court that heard the case of Roe v. Wade ruled in favor of a "Ninth Amendment right to choose to have an abortion," although it stressed that the right was "not unqualified or unfettered." [6] However, Justice William O. Douglas rejected that view; Douglas wrote that, "The Ninth Amendment obviously does not create federally enforceable rights."
In other words, there are no specific rights accruing from the Ninth Amendment at all. It instead provides merely a framework within which new rights may be proposed by legislation, after which they may be reviewed by the Judiciary.
From the same article:
“The Sixth Circuit Court of Appeals stated in Gibson v. Matthews, 926 F.2d 532, 537 (6th Cir. 1991) that the Ninth Amendment was intended to vitiate the maxim of expressio unius est exclusio alterius according to which the express mention of one thing excludes all others:
[T]he ninth amendment does not confer substantive rights in addition to those conferred by other portions of our governing law. The ninth amendment was added to the Bill of Rights to ensure that the maxim expressio unius est exclusio alterius would not be used at a later time to deny fundamental rights merely because they were not specifically enumerated in the Constitution.”
And:
“Professor Laurence Tribe shares this view: "It is a common error, but an error nonetheless, to talk of 'ninth amendment rights.' The ninth amendment is not a source of rights as such; it is simply a rule about how to read the Constitution."[8] Likewise, Justice Antonin Scalia has expressed the same view, in the dissenting opinion of Troxel v. Granville 530 U.S. 57 (2000):
The Declaration of Independence...is not a legal prescription conferring powers upon the courts; and the Constitution’s refusal to 'deny or disparage' other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people.”
And:
“In 2000, Harvard historian Bernard Bailyn gave a speech at the White House on the subject of the Ninth Amendment. He said that the Ninth Amendment refers to "a universe of rights, possessed by the people — latent rights, still to be evoked and enacted into law....a reservoir of other, unenumerated rights that the people retain, which in time may be enacted into law."
That’s the view to which I hold. Rights not explicitly enumerated in the Constitution may in time be enacted into law. But “being enacted into law” is a power granted only to Congress, not to the Courts.
This is what these pro-choicers consistently deny. Having given them
enough rope, I think it is time at last to deliver the coup de grace.
They
have insisted that the Ninth Amendment granted the Court untrammeled ability to
discover new rights. However, this
understanding of the timing of events is faulty. As previously mentioned, there is no
Constitutional basis for the concept of “judicial review.” It was in fact a principle that was discussed
and debated during the Continental Congress, but at no point was it actually
written into the Constitution. If we are
to adhere to a strict reading of the document, it’s clear that the Supreme
Court has no power whatsoever to overturn any law, state or federal, on the
basis of presumed constitutionality or unconstitutionality.
Nonetheless,
the principle of judicial review has been invoked innumerable times through the
centuries, and has become regarded as a valid, constitutional principle. For the sake of argument, I’m allowing it,
but only in the stricter, original formulation:
the Court has the power to review federal law for constitutionality, but
not state law. This alone renders the Roe vs. Wade decision (as well as Griswold vs. Connecticut, its precedent)
unconstitutional. But wait, it gets
better.
They
have also argued that the Ninth Amendment grants SCOTUS the right to discover
rights not explicitly enumerated. The
Ninth Amendment is of course part of the Bill of Rights, a parcel of Amendments
which was ratified in 1791. The power of
judicial review, by contrast, was established (by act of Court fiat) in the
case Marbury vs. Madison…which was
decided in 1803.
Clearly,
the Ninth Amendment did not apply to any act of the Court, as the Court had not
yet assumed the ability to apply judicial review.
The
Ninth Amendment did not, and does not, grant the Court any power whatsoever
over the Constitution. Since only
Congress has the power to make law, only Congress has the power to discover rights. The Court’s power of judicial review—whether
legitimate or not—does not extend to rights that have not already been
legislated.
To put
it another way, quoting another Constitutional scholar:
“Our government exists to protect the Constitutional rights of the people. Those rights are protected by the Constitution and its Amendments as the law of the land. Only the people have the incontestable, unalienable, unencroachable right to change the laws which they have established. The elected and appointed officials may not change the law of the Constitution, neither can the courts change the law. Not even the Supreme Court can change any law. Courts only judge situations to which the law applies. Courts may not judge the law.
“Not the courts, not the officials, not even the Supreme Court, have the incontestable, unalienable, and unremoveable right to change the law of the land. Only the people. They do it through their elected officials of the many states. But for such power to make laws to exist in the hands of a few appointed men, untouchable by the people, that is the exact thing our Founders denied. They set up the Constitution so only Congress should have the power to make laws, and Congress is elected by the people. Therefore Congress reflects the will of the people. Judges should only apply the law of the people, not make law for the people to follow. Judges are to follow the law of the people. “
To put
it into words I’ve shared before on this weblog, the separation of powers is
intended to prevent any one branch of government from acting on material that
it provides. The legislature, for
instance, creates the legal standard, which the Court acts on. To both create the legal standard and act on
it, as the Court does every time it engages in judicial activism, is inherently
unconstitutional. No decision that
results in the discovery of a heretofore-unenumerated right is constitutional.
Ever.
What Roe v. Wade has done, really, is thrust the issue upon the national stage, where it perpetually remains, a never-settled controversy that serves mostly to impact voter turnout in presidential elections. That's its value to the Democratic Party in particular. It thrives on the ongoing threat of overturn. As long as it can continue to convince voters that there's a "right to abort," it will continue to gain voters who seek to install a Democratic president whose Justice appointees will continue to defend the earlier decision.
That's the supreme irony, I think. Democrats who say "the issue is settled" completely ignore the fact that, by removing it from the democratic process, the single least democratic institution in government (in terms of representation) has guaranteed that it will never be settled. For all intents and purposes, prior to the early 1970s, it was settled, in every state in the Union. I wonder how these same adherents would respond to being told that slavery is a "settled issue" because the Court has upheld the proposition that black men are equivalent only to 3/5 of a person, or that segregation is "settled" because the Court has upheld the "separate but equal" doctrine.
I think we've sufficiently covered abortion from the Constitutional angle. At least as regards SCOTUS' actions, there is no grounds for regarding abortion as a right. But is this sufficient argument to prohibit abortion? To answer this question, we have to look at abortion a bit differently, in terms of right and wrong. As was pointed out earlier, morality is normative: it doesn't have any kind of absolute or objective definition, and it cannot be an individual matter, so likewise doesn't have a subjective one. Morality's role is to standardize the customs, practices, norms and values that people hold in common, so that we can regard each other as like enough to be willing to unquestioningly jump to the common defense, to help out in time of need even to our own detriment, to come together in tradition and community activity in order to bond. These practices and values will necessarily vary from group to group, and from location to location along geographic gradients even within a single group.
This is one reason why state borders work particularly well as bounds around groups of like-minded folk, and why counties and municipalities within those states enclose ever-more-specific variations on local value sets.
Given the normative reality of morality, the only context in which it seems reasonable to impose any kind of absolute standard is when rights are being violated. To put it into more libertarian terms, the only valid use of force is in response to the imposition of force by someone else. (This is why, from a libertarian perspective, laws against murder, rape, theft and assault are valid, and laws against drug use are not.) To apply this principle to the issue at hand, if the unborn child has a right to life, then it is wrong--objectively wrong, in an absolute sense--to infringe on that right. This is the clearest moral argument that can be made against abortion.
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| The time to CHOOSE is before another human life hangs in the balance. CHOOSE birth control. Or CHOOSE to abstain. |
But Aha, the pro-aborts will say at this point, the woman has a right to abort! How can you declare that the fetus' rights trump hers? She is, after all, a real, living person!
This is an easy one. Nobody's rights trump anybody else's. It's not the person holding the rights that matters here, but the rights themselves. And, of course, the matter of whether they're rights at all. Whether abortion can ever truly be a right or not, we have already laid to rest the question of whether SCOTUS was correct in declaring it to be one. Having put their decision aside, we can still examine the question of abortion as a right, by addressing a few key points.
1. Rights are inalienable. Everybody has the same rights.
2. Rights are not conditional. You don't earn rights. They are not granted. They are yours by default.
3. Rights do not impose obligations on anyone else to provide them to you. You already have rights; all anybody can do is take them away from you.
I've previously touched on these principles in discussions of gay rights (as by arguing against the existence of a "right" to have a wedding cake baked for you by a specific baker). To reiterate the basic argument:
There are two main categories of rights, civil rights and property rights. Both sets of rights originate in self-ownership. A slave lacks self-ownership, and therefore lacks both civil and property rights.
A fetus, then, is a slave, for so long as the government denies him or her all rights.
Your property rights are those that permit you to participate in the market, to own, inherit, purchase, transfer, and dispose of property as you see fit. Your civil rights are those that protect your sovereignty as a citizen. They are the rights that defend you from government tyranny. They exist not because the government must provide them for you, but because the government cannot (at least, not without substantial due process) deprive you of them. To wit:
Your right to worship freely doesn't require the government to build you a church; it requires only that the government not prevent you from visiting one.
Your right to speak freely doesn't require the government to give you a voice; it requires only that the government not silence you.
Your right to defend yourself doesn't require the government to arm you; it requires only that the government not disarm you.
But Aha, shout the pro-aborts at this point. The woman would be required to "provide life" for the fetus, if abortion were criminalized! This violates your stated principles!
Not so fast, I counter. Life already exists in the fetus. It's a fait accompli. It was "provided" at the moment of conception, and like any other right, all that can be done beyond that point is to deprive the fetus of it. By refusing to abort the fetus, the woman isn't "providing life" on an ongoing basis any more than the air you breathe is "providing" your life for you. Your life is inherent within you. The environment simply makes the continuation of that life possible. It does not provide that life. Taking no action that would terminate the life of the fetus is all my principles prescribe.
That we do, in fact, have an untrammeled right to life is both explicit and implicit in common law, Constitutional law, and the US Code. Life is declared to be an inalienable right in the Declaration of Independence, which many scholars regard as being a prologue to (and therefore part of) the Constitution. (Abraham Lincoln, for instance, espoused this view, a view that is not uncommon among libertarians today.) So whereas the Constitution proper doesn't make explicit reference to Life, it nonetheless provides the framework in which rights are protected; and the US Code, the consolidation and codification by subject matter of the general and permanent laws of the United States, makes explicit mention of murder and of homicide, clearly in an effort to lay out the government's interest in defending the right to life. Even prior to the Declaration of Independence, common law (as imported from Great Britain) recognized the inherent right to life, which was also a subject of interest to the Enlightenment-era thinkers who inspired the Declaration and Constitution. There can be no doubt that the Founders of this nation regarded it as a right. There can also be no doubt that in its absence, all other rights are effectively null and void; it is therefore the one right upon which all others depend, making it the most important of all. (The oversight of not including it initially in the Constitution was rectified with the 14th Amendment, which states, in part, "nor shall any state deprive any person of life, liberty, or property, without due process of law." If progressives can argue that the inclusion of income taxation via Amendment makes it "perfectly constitutional," then the 14th Amendment can be argued as making the Right to Life just as constitutional.)
Some pro-aborts have argued that Roe v. Wade constitutes due process. I hate to appeal to self-evident facts in debates as serious as this one, but it should be obvious to any objective observer that due process is a set of procedures that takes place following an action (such as an arrest, or even a shooting in self-defense), and is used to provide a sort of checklist of rights and protections to ensure that abuse isn't taking place. It is not something that is performed once, and for all time, for all potential petitioners; it is something that must be carried out for each individual case. No Court decision can, on its own, ever constitute due process. They can, however, contribute elements that should be followed in every instance of due process thereafter, such as the practice of Mirandizing suspects.
So what we're left with, then, is the conflict between two rights: the very real right to life, and the fictional "right to abort" as granted by Court decree. Whenever two liberties come into conflict, it's not the holders of those liberties that we should look to to resolve the issue. We should instead look to the liberties themselves, and prioritize accordingly. Since the right to life is the most fundamental of all rights, it always takes highest priority.
Thus ends my rights-based argument. Note that it doesn't make any absolute dicta. The woman's right to life is also sacrosanct, so if her life is threatened by the pregnancy, she has a right to self-defense. (Note that not all pregnant women, whose lives are so threatened, would make the choice to terminate.) But it's important to distinguish between an actual threat to her life, such as that imposed by an ectopic pregnancy, and the merely elevated risks of complications that all pregnancies entail (under normal circumstances). Getting into a car and driving in heavy traffic elevates one's risks of complications due to auto accident. It is not, in and of itself, a threat to life (under normal circumstances).
This argument, of course, causes a whole new set of objections to surface. Pro-aborts hate to regard the issue as a conflict of rights, so--as was hinted at the start of this article--the way to resolve the matter in their favor is to deny rights to one of the parties in question. This is done by rejecting the personhood of the fetus. After all, it is just a "clump of cells."
This is where the argument turns scientific, and loses the trappings of legalistic and emotional diatribe. Here, finally, we can get down to truly objective truths.
And those truths include the fact that the fetus is a human being, is alive, and is in no way a "clump of cells." The biological hierarchy of organization begins with cells, of course; every living organism is either a single cell or an organized collection of cells. But there are no "clumps" except in teratomas or tumors. Moving upward from cell, we find tissue, organs, organ systems, and organisms. (In the special case of unicellular life, "cell" and "organism" are synonymous, and there are no intervening levels of organization. This also applies, albeit temporarily, to multicellular life at its earliest stage.)
I'm sure you've encountered, at some point, the pro-abort canard asking, "Well, then, is menstruation murder? What about masturbation? You're killing millions of sperm cells!"
Unfertilized ova and spermatozoa are not human beings.
These are cells, N=23 haploid cells of the tissues of the mother and father, respectively. A simplified account of procreation would begin with a follicle in one of her ovaries maturing and releasing the ovum into the Fallopian tube. If unhindered in its progress, it will move down toward the uterus, perhaps encountering, en route, a sperm cell. If the two meet, and successfully fuse, then the nucleus of the ovum undertakes a substantial reorganization, which results in an entirely novel 2N=46 diploid genome. This new combination of nucleic acids is used to manufacture proteins for the ovum, at which point it ceases to be a cell of the mother's body and becomes a new organism. Its proteins are unlike those in her body, and were it to lodge anywhere other than in the uterus, her immune system would reject it, resulting in its eviction. (It's worth pointing out at this point that the vast majority of miscarriages, which many pro-aborts regard as functionally equivalent to abortions, are the natural result of chromosomal anomalies in the ovum, and certainly are not the result of any act of choice on the part of the mother.)
That's how the new organism begins. Note that I'm not saying "new life." Life is always present, and assuming a single abiogenetic origin for all life, it has existed, in an unbroken chain, going all the way back to the first organism. The creation of a new organism isn't the creation of new life. The ovum doesn't suddenly "come alive" upon being fertilized. It is always alive. Furthermore, by virtue of having a human phylogeny (evolutionary history) and human ontogeny (developmental process), it is unquestionably a human being. No biological authority would ever assert otherwise. The new organism is alive, and it is a human being. To my way of thinking, these are the only two facts that ultimately matter in this debate.
But this creation of a new organism is distinct from the onset of pregnancy, and this distinction is one source of the confusion that pro-aborts can exploit in making their arguments. Pregnancy itself doesn't begin until the zygote succeeds in implanting itself in the uterine wall. At that point, the mother's body begins responding to its presence, and the various hormones that signal pregnancy begin to make themselves felt. Most zygotes don't succeed in implanting, and this, too, is cited as a moral equivalency by pro-aborts. It isn't. There is no choice involved. Values don't enter into the process. If the zygote is faulty in some way that inhibits its ability to implant, then it would be highly unlikely to survive pregnancy, and is therefore flushed from the uterus with the next menstruation.
The zygote divides, and divides again, and eventually forms a panoply of cells which differentiate into layers, each layer and each portion thereof forming the progenitors of various tissues and organ systems. Again, barring some kind of pathology that would result in its failure and expulsion, organization is always present. There is no biological definition for "clump." The shape doesn't matter. Neither does the age. It's a human being from the start, and will remain so until it dies.
What we're left with, then, is the distinction between "human being" and "person." "Human being" is of course just a label, a convenient synonym for "specimen of the species Homo sapiens." (It could also in theory be applied to a specimen of any other species in the genus Homo, were other species still in existence today.) It is therefore a scientific label, or at least reducible to one. "Person," on the other hand, is a fiction; it is an entirely legalistic concept. It can be shown, by appealing to the definition of "person" through the ages, that it has always served a prejudicial role, by way of excluding some humans from personhood, in order that other groups may benefit. In previous centuries, for instance, slaves were explicitly excluded from personhood, with the result that they could have no rights, hold no property, and had no voice in the political process. It was therefore necessary, on their part, to have someone with legal personhood speak for them.
So it is with the abortion debate today. We speak for those who have no voice.
We're told by sexist bigots that we're not entitled to an opinion because we don't have uteri.
We're told that the only reason we could possibly speak out against abortion is because we want to oppress women, that we are chauvenist warriors in a "war against women."
Both assertions are false. Any person who values human life, and human rights, and who is privy to the information I've provided here, cannot help but at least acknowledge the fact that there are other reasons besides these for speaking out. Half of those aborted are females, and unlike personal feelings and legislation that we might not agree with, this practice entails very real casualties. If there is such a thing as a "war on women," abortion is it.
The problem, then, is one of "impedance mismatch." "Person" is a legal fiction; "human being" has an objective meaning. It's fairly obvious, however, that there is overlap between the two domains, since all persons are human beings. The overlap isn't total, however, since not all human beings are persons. And that's the crux of the whole matter, to me. When I ask a pro-abort what the difference between "person" and "human being" is, they always fall back on language in the Roe v. Wade decision, citing "viability" as the distinction. But this is a distinction without a difference. The age of viability is being pushed further and further back by medical advances every year. In any event, "viability" is an artifice, a circular feature intended to shepherd the argument back from "humanityu" to "personhood." The human organism doesn't fundamentally change at the moment of birth. All that changes is its environment.
If gender, physical and mental health, age, sexual orientation, and race cannot be used as legal criteria for discrimination, how can stage of development?
The closest the pro-abort camp has ever come to making a valid argument is by asserting that the fetus is entirely dependent on another for its existence. This is a less clear-cut and admirable argument than they think, largely because many of us are entirely dependent on others at various stages in our lives. Even a newborn is entirely dependent on another. The pro-aborts insist that this "other" need not be the mother, but that's entirely moot. If dependency is their criterion, then it should stand on its own, irrespective of the conditions they desire to attach (their goalposts evidently come mounted on ball-bearing casters). But let's grant them some leeway on this, and allow them to redefine the distinction as the difference between someone who can live independently and someone who depends on another's bodily resources.
Given that distinction, almost nobody qualifies as a person. Only those living outside of society would qualify. My own bodily resources are involved in my labor, and therefore in the production of what I produce. My entire household depends on the wages that accrue from that production, and the market economy depends, in part, on that production, as it depends on the production of everybody else. My "bodily resources" include my muscles, my brain and enervation, and the calories that are expended in their use, including the digestive process that makes those calories available. If I'm a parent, then my children remain dependent on my bodily resources for as long as they live with me.
Dependency forms no part of the definition of "person." It certainly provides no useful distinction between "person" and "human being."
Until a valid distinction can be offered, we pro-lifers are justified in asserting that no such distinction exists. And, as no distinction exists, there is no justification for excluding the unborn from personhood. They are entitled to the very same rights as you and I. The fact that the unborn cannot employ moral agency doesn't distinguish them from people who are asleep, or in a medical coma, or under general anaesthesia, or otherwise unconscious or incapacitated.
Until a valid distinction can be offered, we pro-lifers are justified in asserting that no such distinction exists. And, as no distinction exists, there is no justification for excluding the unborn from personhood. They are entitled to the very same rights as you and I. The fact that the unborn cannot employ moral agency doesn't distinguish them from people who are asleep, or in a medical coma, or under general anaesthesia, or otherwise unconscious or incapacitated.
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| This is the kind of equality that feminists have sought for decades. And they're not through yet. |
So I categorically deny that there is a "right to abort." Such a right has no Constitutional backing; it has no moral backing; and it is inherently a violation of existing rights. This is a separate proposition from that Roe v. Wade should be overturned (and it should). However, overturning Roe v. Wade wouldn't instantly criminalize abortion, as pro-aborts fear. It would merely return the matter to the states for the democratic process to operate on.
Why do liberals fear the democratic process? Why do they run to the Court to overrule that process any time it doesn't go their way? Doesn't the "Democratic" in the name of their party demonstrate a pretense at faith in democracy?
My answer: they fear the democratic process because statism is inconsistent with liberty.
References:
On rights and legal personhood--
Wiki on the 9th Amendment
Wiki on the US Constitution
Wiki on the Declaration of Independence
Wiki on Life, Liberty and the Pursuit of Happiness
On pregnancy and the biology of procreation (Web sites)--
On pregnancy and the biology of procreation (Biology and embryology texts)--
Scott Gilbert: "The entity created by fertilization is indeed a human embryo, and it has the potential to be human adult. Whether these facts are enough to accord it personhood is a question influenced by opinion, philosophy and theology, rather than by science."
"Development of the embryo begins at Stage 1 when a sperm fertilizes an oocyte and together they form a zygote."
— England, Marjorie A. Life Before Birth. 2nd ed. England: Mosby-Wolfe, 1996, p.31
"Human development begins after the union of male and female gametes or germ cells during a process known as fertilization (conception).
"Fertilization is a sequence of events that begins with the contact of a sperm (spermatozoon) with a secondary oocyte (ovum) and ends with the fusion of their pronuclei (the haploid nuclei of the sperm and ovum) and the mingling of their chromosomes to form a new cell. This fertilized ovum, known as a zygote, is a large diploid cell that is the beginning, or primordium, of a human being."
— Moore, Keith L. Essentials of Human Embryology. Toronto: B.C. Decker Inc, 1988, p.2
The Developing Human: Clinically Oriented Embryology, 6th ed.
Keith L. Moore, Ph.D. & T.V.N. Persaud, Md., (Philadelphia: W.B. Saunders Company, 1998), 2-18.
"The Zygote results from the union of an oocyte and a sperm. A zygote is the beginning of a new human being. Human development begins at fertilization, the process during which a male gamete or sperm ... unites with a female gamete or oocyte ... to form a single cell called a zygote. This highly specialized, totipotent cell marks the beginning of each of us as a unique individual."
Essentials of Human Embryology
William J. Larsen, (New York: Churchill Livingstone, 1998), 1-17.
"In this text, we begin our description of the developing human with the formation and differentiation of the male and female sex cells or gametes, which will unite at fertilization to initiate the embryonic development of a new individual. ... Fertilization takes place in the oviduct... resulting in the formation of a zygote containing a single diploid nucleus. Embryonic development is considered to begin at this point... This moment of zygote formation may be taken as the beginning or zero time point of embryonic development."
Human Embryology & Teratology
Ronan R. O'Rahilly, Fabiola Muller, (New York: Wiley-Liss, 1996), 5-55.
"Fertilization is an important landmark because, under ordinary circumstances, a new, genetically distinct human organism is thereby formed... Fertilization is the procession of events that begins when a spermatozoon makes contact with a secondary oocyte or its investments... The zygote... is a unicellular embryo... "The ill-defined and inaccurate term pre-embryo, which includes the embryonic disc, is said either to end with the appearance of the primitive streak or ... to include neurulation. The term is not used in this book."
Cloning Human Beings
Report and Recommendations of the National Bioethics Advisory Commission. Rockville, MD: GPO, 1997, Appendix-2.
"Embryo: the developing organism from the time of fertilization until significant differentiation has occurred, when the organism becomes known as a fetus."
The Harper Collins Illustrated Medical Dictionary
Dox, Ida G. et al. New York: Harper Perennial, 1993, p. 146]
"Embryo: An organism in the earliest stage of development; in a man, from the time of conception to the end of the second month in the uterus."
Test-Tube Babies
Walters, William and Singer, Peter (eds.). Melbourne: Oxford University Press, 1982, p. 160
"Embryo: The early developing fertilized egg that is growing into another individual of the species. In man the term 'embryo' is usually restricted to the period of development from fertilization until the end of the eighth week of pregnancy."
Medical Embryology
Langman, Jan. 3rd edition. Baltimore: Williams and Wilkins, 1975, p. 3
"The development of a human being begins with fertilization, a process by which two highly specialized cells, the spermatozoon from the male and the oocyte from the female, unite to give rise to a new organism, the zygote."
Van Nostrand's Scientific Encyclopedia
Considine, Douglas (ed.). 5th edition. New York: Van Nostrand Reinhold Company, 1976, p. 943
"Embryo: The developing individual between the union of the germ cells and the completion of the organs which characterize its body when it becomes a separate organism.... At the moment the sperm cell of the human male meets the ovum of the female and the union results in a fertilized ovum (zygote), a new life has begun.... The term embryo covers the several stages of early development from conception to the ninth or tenth week of life."
Dr. John Eppig, Senior Staff Scientist, Jackson Laboratory (Bar Harbor, Maine) and Member of the NIH Human Embryo Research Panel
Panel Transcript, February 2, 1994, p. 31
"I would say that among most scientists, the word 'embryo' includes the time from after fertilization..."
Langman's Medical Embryology
Sadler, T.W. 7th edition. Baltimore: Williams & Wilkins 1995, p. 3
"The development of a human begins with fertilization, a process by which the spermatozoon from the male and the oocyte from the female unite to give rise to a new organism, the zygote."
Jonathan Van Blerkom of University of Colorado, expert witness on human embryology before the NIH Human Embryo Research Panel
Panel Transcript, February 2, 1994, p. 63
"The question came up of what is an embryo, when does an embryo exist, when does it occur. I think, as you know, that in development, life is a continuum.... But I think one of the useful definitions that has come out, especially from Germany, has been the stage at which these two nuclei [from sperm and egg] come together and the membranes between the two break down."
Before We Are Born: Essentials of Embryology and Birth Defects
Moore, Keith L. and Persaud, T.V.N. 4th edition. Philadelphia: W.B. Saunders Company, 1993, p. 1
"Zygote. This cell, formed by the union of an ovum and a sperm (Gr. zyg tos, yoked together), represents the beginning of a human being. The common expression 'fertilized ovum' refers to the zygote."
Human Embryology
Larsen, William J. 2nd edition. New York: Churchill Livingstone, 1997, p. 17
"The chromosomes of the oocyte and sperm are...respectively enclosed within female and male pronuclei. These pronuclei fuse with each other to produce the single, diploid, 2N nucleus of the fertilized zygote. This moment of zygote formation may be taken as the beginning or zero time point of embryonic development."
Patten's Foundations of Embryology
Carlson, Bruce M. 6th edition. New York: McGraw-Hill, 1996, p. 3
"Almost all higher animals start their lives from a single cell, the fertilized ovum (zygote)... The time of fertilization represents the starting point in the life history, or ontogeny, of the individual."
Remaking Eden: Cloning and Beyond in a Brave New World
Silver, Lee M. New York: Avon Books, 1997, p. 39
"Animal biologists use the term embryo to describe the single cell stage, the two-cell stage, and all subsequent stages up until a time when recognizable humanlike limbs and facial features begin to appear between six to eight weeks after fertilization....
"A number of specialists working in the field of human reproduction have suggested that we stop using the word embryo to describe the developing entity that exists for the first two weeks after fertilization. In its place, they proposed the term pre-embryo....
"I'll let you in on a secret. The term pre-embryo has been embraced wholeheartedly by IVF practitioners for reasons that are political, not scientific. The new term is used to provide the illusion that there is something profoundly different between what we nonmedical biologists still call a six-day-old embryo and what we and everyone else call a sixteen-day-old embryo.
"The term pre-embryo is useful in the political arena -- where decisions are made about whether to allow early embryo (now called pre-embryo) experimentation -- as well as in the confines of a doctor's office, where it can be used to allay moral concerns that might be expressed by IVF patients. 'Don't worry,' a doctor might say, 'it's only pre-embryos that we're manipulating or freezing. They won't turn into real human embryos until after we've put them back into your body.'"
Human Embryology, 3rd ed.
Bradley M. Patten, (New York: McGraw Hill, 1968), 43.
"It is the penetration of the ovum by a spermatozoan and resultant mingling of the nuclear material each brings to the union that constitutes the culmination of the process of fertilization and marks the initiation of the life of a new individual."
Biological Principles and Modern Practice of Obstetrics
J.P. Greenhill and E.A. Friedman, (Philadelphia: W.B. Sanders, 1974), 17.
"The zygote thus formed represents the beginning of a new life."
Pathology of the Fetus and the Infant, 3d ed.
E.L. Potter and J.M. Craig, (Chicago: Year Book Medical Publishers, 1975), vii.
"Every time a sperm cell and ovum unite a new being is created which is alive and will continue to live unless its death is brought about by some specific condition."
In 1981, a United States Senate judiciary subcommittee received the following testimony from a collection of medical experts (Subcommittee on Separation of Powers to Senate Judiciary Committee S-158, Report, 97th Congress, 1st Session, 1981):
Professor Micheline Matthews-Roth
Harvard University Medical School
"It is incorrect to say that biological data cannot be decisive...It is scientifically correct to say that an individual human life begins at conception."
Dr. Alfred M. Bongioanni
Professor of Pediatrics and Obstetrics, University of Pennsylvania
"I have learned from my earliest medical education that human life begins at the time of conception."
Dr. Jerome LeJeune
Professor of Genetics, University of Descartes
"After fertilization has taken place a new human being has come into being. [It] is no longer a matter of taste or opinion...it is plain experimental evidence. Each individual has a very neat beginning, at conception."
Professor Hymie Gordon
Mayo Clinic
"By all the criteria of modern molecular biology, life is present from the moment of conception."
Dr. Watson A. Bowes
University of Colorado Medical School
"The beginning of a single human life is from a biological point of view a simple and straightforward matter — the beginning is conception."
The official Senate report reached this conclusion:
Physicians, biologists, and other scientists agree that conception marks the beginning of the life of a human being - a being that is alive and is a member of the human species. There is overwhelming agreement on this point in countless medical, biological, and scientific writings.
Psychology in the womb (demonstrating cognitive activity and learning in utero)--
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