Reply #1: Here's my position [View All]

[Monist]

As one who believes with our nation’s founders that the purpose of government is to secure the rights of individuals to life, liberty and the pursuit of happiness, I have always found abortion to be the most difficult of all issues on which to derive a principled position.

That every human being owns his or her own body is, to use the founders’ phrase, self-evident. As such, I do not see where any government can rightfully claim the power to violate the sanctity of any individual’s own body.

At the same time, I have never been persuaded that a fetus is not human. I find the claim that a fetus does not enjoy an equal right to life to be a highly questionable argument of convenience. I might add that I was particular disturbed to see a recent Newsweek Magazine cover story with the headline: “Should a Fetus Have Rights?” That phrasing of the question assumes that natural rights can be granted by some type of vote or legislation, a view that is completely at odds with the core American understanding of what rights are and where they come from. Such an assumption must be honestly recognized as un-American and dangerous, because “rights” that can be given by the government or the voters can also be taken away by the same means, and therefore in no sense can be seen as “unalienable.”

In any event, I believe a compelling argument can be made that during pregnancy, where a mother and fetus share the same biological system, there is in fact a unity of two individuals with rightful claims to a single body. In a real sense, a pregnant woman’s body also belongs to her fetus.

Consequently, the desire of a woman to abort her fetus is one of those few instances where the government is required to weigh the balance of two competing sets of equally compelling rights in conflict. A legal resolution to such a conundrum must necessarily be imperfect, just as we accept that there should be a legal age of consent regarding sex, even though every kid is different and a one-size- fits-all age determination is at best an imperfect compromise . What is important, therefore, is that the ultimate legal disposition of this issue be one that reinforces the government’s obligation to preserve as far as possible the sanctity of all the individual rights involved.

In such a circumstance, government policy should not unilaterally deny one set of rights in favor of the other. Instead, the law must seek to establish the legal prioritization of the two sets of rights in relation to each other.

The best way to achieve that outcome, I believe, is for the law to recognize a pregnant woman’s first priority claim to the body she shares with her fetus, but to treat this priority as a kind of “right of first decision.”

Under this doctrine, the mother’s right to abort would be recognized and protected under law for some reasonable period that should rightfully be debated and defined at the individual state level. Should the mother fail to exercise her right by the end of this period, the law could then deem her to have waived that right for the remainder of her pregnancy. When weighed against the need to protect at some point the fetus’ equal right to life, I do not think this approach creates an undue burden on the rights of the mother.

Clearly, the law ought to make some provision for allowing later-term abortions to accommodate an extraordinary, specific risk to a mother’s life. But I note, with some disgust, that there are physicians, who would be prepared to argue that any pregnancy is a threat to every woman’s life – a position which I believe should not be adopted into law.

I admit that this approach to the abortion will not satisfy those at either extreme of the current debate, but I believe that it comes as close to achieving proper justice and dignity as is possible for laws made by humans.

Ultimately, I do not believe that abortion legislation is a matter for the federal government’s attention, and certainly should not be a significant issue in a presidential election. Like laws relating to murder, which are generally not matters for federal concern, I feel strongly that the abortion debate is more appropriately handled by the people and their legislators at the individual state level.

People tend to forget that if Roe v. Wade were overturned tomorrow, that event would not outlaw the performance of a single abortion. All it would do is decentralize abortion policy and allow voters and legislators in 50 states to work out their own laws on the subject. Given the volatility of the abortion debate in our nation, it is politically inconceivable that in the absence of Roe v. Wade abortion would be outlawed entirely in more than a handful of states, if that many.

I do agree with the Supreme Court’s finding in Roe v. Wade that there is such thing as a right to privacy. I believe that right is clearly supported by the 9th amendment to the Constitution, and I find it impossible that a government founded on the principle of individual liberty would not recognize such a right.

But in the end, I do not believe that privacy is the relevant issue in the abortion question as I have laid it out here, and I believe that Roe v. Wade is bad constitutional law because it asserts improper federal authority over an area that by right ought to be left to the states and to the people.