Saturday, November 01, 2008

Abortion and constitutional law

In debating the abortion issue, people sometimes conflate the moral question of abortion with the legal question as to whether abortion laws are constitutionally justified. The following four positions are compossible.

1) Abortion is always morally wrong, (except in cases where the life of the mother is in danger) but as a matter of constitutional law, Roe was correctly adjudicated.

2) Abortion is not always morally wrong, and Roe was correctly adjudicated.

3) Abortion is morally wrong, and Roe was not correctly adjudicated.

4) Abortion is not always wrong, but Roe was not correctly adjudicated.


Jim Jordan said...

#3 is the only possible answer.

Mike McConnell, writing in the WSJ:

The reasoning of Roe v. Wade is an embarrassment to those who take constitutional law seriously, even to many scholars who heartily support the outcome of the case. As John Hart Ely, former dean of Stanford Law School and a supporter of abortion rights, has written, Roe "is not constitutional law and gives almost no sense of an obligation to try to be."

The court's reasoning proceeded in two steps. First, it found that a "right of privacy" exists under the Constitution, and that this right is "broad enough to encompass a woman's decision whether or not to terminate her pregnancy." Since this meant that the right to abortion is constitutionally protected, a state could interfere with the right only if it has a "compelling state interest" for doing so.

But the right of privacy is nowhere mentioned in the Constitution. Various judges, according to the court, had found "at least the roots of that right" in the First Amendment, in the "penumbras of the Bill of Rights," in the Ninth Amendment or in the "concept of liberty guaranteed by the first section of the Fourteenth Amendment." This vague statement is tantamount to confessing the court did not much care where in the Constitution this supposed right might be found. All that mattered was it be "broad enough" to encompass abortion.

Even assuming a right of privacy can be excavated from somewhere, anywhere, in the Constitution, what does it mean? The court avoided defining the term, except by giving examples from previous cases. The trouble is, counterexamples abound. The federal "right of privacy" has never been held to protect against laws banning drug use, assisted suicide or even consensual sodomy--just to mention a few examples of crimes that are no less "private" than abortion. It is impossible to know what does and does not fall within this nebulous category.

Even assuming that there is a right of privacy, and that its contours can be discerned from the court's examples, surely it must be confined to activities that affect no one else. It would be an odd kind of privacy that confers the power to inflict injury on nonconsenting third parties. Yet the entire rationale for antiabortion laws is that an abortion does inflict injury on a nonconsenting third party, the fetus. It is not possible to describe abortion as a "privacy right" without first concluding that the fetus does not count as a third party with protectable interests.

That brings us to step two in the court's argument. Far from resolving the thorny question of when a fetus is another person deserving of protection--surely the crux of the privacy right, if it exists--the justices determined that the issue is unresolvable. They noted that there has been a "wide divergence of thinking" regarding the "most sensitive and difficult question" of "when life begins." They stated that "[w]hen those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary . . . is not in a position to speculate as to the answer."

According to the court, the existence of this uncertainty meant that the state's asserted interest in protecting unborn life could not be deemed "compelling." But this leaves us with an entirely circular argument. The supposed lack of consensus about when life begins is important because when state interests are uncertain they cannot be "compelling"; and a compelling state interest is required before the state can limit a constitutional right. But the constitutional right in question ("privacy") only exists if the activity in question does not abridge the rights of a nonconsenting third party--the very question the court says cannot be resolved. If it cannot be resolved, there is no way to determine whether abortion is a "right of privacy."

In any event, the court's claim that it was not resolving the issue of "when life begins" was disingenuous. In our system, all people are entitled to protection from killing and other forms of private violence. The court can deny such protection to fetuses only if it presupposes they are not persons.

One can make a pretty convincing argument, however, that fetuses are persons. They are alive; their species is Homo sapiens. They are not simply an appendage of the mother; they have a separate and unique chromosomal structure. Surely, before beings with all the biological characteristics of humans are stripped of their rights as "persons" under the law, we are entitled to an explanation of why they fall short. For the court to say it cannot "resolve the difficult question of when life begins" is not an explanation.

The responsible decision would be to acknowledge the irretubale truth that the Constitution does NOT deal with abortion, and remand the case to the states.

To show how morally bankrupt some pro-choicers are who desire the "Christian" label, their favorite quote is that "Jesus NEVER said anything about abortion!" That's highly debatable, and false. But what is irrefutable is that the federal Constitution says NOTHING about abortion, which means that the SCOTUS had NOTHING to say about it.

Sadly, they gave in to the temptation of power and chose to deny popular control by the people. Do you think we'd be having these vicious quarrels if we got a chance to vote on it?

Bill Snedden said...

While I don't agree that abortion is always morally wrong, I do agree that Roe was incorrectly adjudicated. The article to which Jim links identifies what is, to me, the crucial issue: "It is not possible to describe abortion as a "privacy right" without first concluding that the fetus does not count as a third party with protectable interests."

McConnell is absolutely incorrect in his specious reasoning regarding a "right to privacy" (His statement "But the right of privacy is nowhere mentioned in the Constitution." is completely irrelevant and betrays a common misunderstanding of the nature of the Constitution. That is, that it is designed to spell out the proper functions and limitations of the state, and not the rights of citizens.) But I agree with him that SCOTUS incorrectly hung the Roe decision on the privacy finding.

However, I must disagree with the assertion that that SCOTUS should simply have stayed out of the issue and remanded back to the states. IF in fact there is a rights issue involved here, regardless of whether or not it is the woman or fetus, it is a legitimate issue for SCOTUS to tackle. One doesn't give up a right simply by living in a different state; this is explicitly spelled out in Art. IV and the 14th Amendment.

Jim Jordan said...

Bil wrote---One doesn't give up a right simply by living in a different state; this is explicitly spelled out in Art. IV and the 14th Amendment.

Regardless, the SCOTUS is the court for the US, NOT the states.