November 9th, 2008

The issue of abortion deeply divides our country, perhaps more profoundly than any other. At present, our law on abortion is defined not by Congress or state legislatures but by the U.S. Supreme Court in its 1973 Roe v. Wade decision. In acknowledging “the sensitive and emotional nature of the abortion controversy,” the Court stated, awkwardly:

One’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training, one’s attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one’s thinking and conclusions about abortion.

Roe v. Wade, which many legal scholars consider flawed, is founded on a limited derivative “right of privacy” even though, as the Court stated, “the Constitution does not explicitly mention any right of privacy.” After a long and somewhat irrelevant discourse on the history of abortion since Persian, Greek, and Roman times and the evolution of common law on abortion, the Court said:

We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.

The decision, as summarized in Section XI of Roe v. Wade, left us with the current trimester system of dealing with abortion. During the first trimester, abortion must essentially be available on demand. In later stages of pregnancy, states may regulate or even prohibit abortion, “except where it is necessary…for the preservation of the life or health of the mother.”

Those who oppose this legal construct argue that Roe v. Wade should be overruled by the Court or overcome through an act of Congress either making new law or limiting the Court’s jurisdiction. Of course, supporters of women’s freedom to choose abortion would leave Roe v. Wade in place. From a purely constitutional standpoint, issues like this belong to state legislatures, but neither side will support that approach because, in one way or another, it doesn’t permit them to achieve total victory.

I understand arguments on both sides of the question when they are based on reason and common sense. What I can’t abide is the hypocrisy, extremism, and downright silliness of positions taken by some zealots.

How can any rational person seriously argue that a minor who can’t get her teeth cleaned without parental permission should be able to have an abortion without her parents consenting or even being notified? The defense offered is that the pregnancy may be the result of incest. In that very limited number of cases, there are various various remedies for state involvement in order to protect the minor.

If you’re confident enough to take a position on when life begins, then your position on abortion should be settled. An abortion performed after life begins is murder, and nothing, to include the health of the mother, justifies it. You can’t have it both ways. If, for example, you profess to be Catholic, you claim to believe that life begins at conception, and you’re “pro-choice,” then you’re a hypocrite (like many politicians).

If you believe that men should have no voice in this debate, then you misunderstand the fundamentals of democracy, in which all are guided by the majority. And certainly on questions that involve life itself, all citizens must have a voice.

Personally, I don’t know exactly when life begins. I do believe that life exists when a baby has been partially delivered. If at that point it is killed and dismembered, that’s murder. I also know that if abortion is completely outlawed, abortions will still be performed one way or another. Without a legally available and safe medical alternative, at least during the early months, untold numbers of girls and women will suffer greatly and many will die. Somewhere between those extremes, there has to be room for compromise.

Roe v. Wade is a bad decision in constitutional terms, in that it invents law in order to impose the normative views of a few judges on all the states. But what’s the alternative? Congress simply doesn’t have the political backbone to deal with the issue. If it were left to the states, we’d have a dysfunctional patchwork of laws resulting in people driving back and forth across state borders to have abortions, much as they do now to buy guns. So, at least for the time being, we should leave it alone and live with Roe v. Wade. It’s the least bad of the available choices.

I guess that means I have to be “pro-choice,” but by the barest of margins, and reluctantly.

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One Response to “Abortion”

  1. Opinion Forum » Blog Archive » The Miracle of Life |

    […] I’ve said before, I support freedom of choice on abortion, within the framework specified in Roe v. Wade.  I take that position primarily because it seems […]

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