Opinion Forum

“Pro Life,” “Pro Choice,” and “Vagina Voting”

October 27th, 2012

“Pro life” and “Pro Choice” are so broad as to be essentially meaningless unless defined.

According to this article, entitled “Actual Huffington Post Headline: ‘Why Some Women Don’t Vote With Their Vaginas’,”

Can you imagine the outrage if a conservative author wrote an article titled “Why Some Men Don’t Vote With Their Penises?” …

Gallup recently found 46 percent of women claiming to be pro-Life as opposed to 44 percent saying they were pro-choice.

Gallup also reported in May that the percentage of pro-choice Americans is now at a record low 41 percent compared to 50 percent claiming they’re pro-Life.

Such surveys probably have little meaning because the terms “pro life” and “pro choice” are quite vague without substantial explication; life and choice are both good and the same vast majority probably relishes both, depending on what is meant. Do all or even a substantial majority of self-described “pro lifers” want to ban all abortions, even those medically necessary for the survival of the pregnant woman? When pregnancy results from rape? When a resulting child will without a doubt be fatally deformed? Do all or a substantial majority of self-described “pro choicers” want to have guaranteed access to free abortions up to and including the moment of birth? How about infanticide shortly after a child has been born? I find myself with one foot in the “pro-life” camp and the other in the “pro-choice” camp. That middle ground is where I also place Roe v. Wade and its progeny.

Roe v. Wade in summary

I wrote about that here. In summary, Roe v. Wade held that during the first trimester, states can regulate abortion – as a medical procedure — only to the extent appropriate to ensure that it is done in a medically safe environment by medically competent providers. After the first trimester, dicta in the decision — that have been widely respected by the Supreme Court and lower courts — suggest that the States have increasing interests in the fetus, to the point that during the third trimester they can prohibit “late term” abortions except when medically appropriate for the survival of the pregnant woman. The Court in Roe v. Wade, not having a second trimester case before it, broadly left open the considerations applicable as fetal development proceeds during the second trimester.

Will Roe v. Wade be “repealed?”

Even if I hoped to see Roe v. Wade “repealed,” that is not going to happen. The President of the United States has no constitutional role in the process of amending the Constitution: he has no authority to “sign” or “veto” a proposed or ratified constitutional amendment. He can use his “bully pulpit,” but that’s it.

Under Article V of the Constitution, a constitutional amendment to “repeal” Roe v. Wade would require two thirds approval by both houses of the Congress and then ratification by three fourths of the States. Drafting language that could approach “repealing” Roe v. Wade, and also likely to be approved by the Congress as is necessary, would result in something so ambiguous that it would likely have little substance. Then, unless three fourths of the States approved the language of the proposed amendment, it would not become part of the Constitution.

A firmly “pro-life” President opposed to all abortions might be able to find someone to nominate to fill a Supreme Court vacancy who would promise to vote to overturn Roe v. Wade and thereby return the issue to the States; supporting such a nominee would require the expenditure of much political capital likely to be needed for other purposes. However, prospective justices are very reluctant to agree in advance to do that sort of thing and I think it would be improper to do so: cases have to be decided on their facts and legal merits, not on agreements made during the confirmation process. A justice who had made such a promise during the confirmation process would likely find himself under substantial legitimate pressure to recuse himself, having already decided the legal issues involved and having also taken into consideration the factual circumstances involved but not before him when he had made the promise.

Further, Roe v. Wade and its progeny have been precedent for about forty years and have themselves been bases for many subsequent decisions by the Supreme Court and the lower courts; judicial precedent is one of the principal bases upon which our legal system is grounded and to overturn longstanding precedent such as Roe v. Wade and its progeny would go against the grain of that principal grounding. Finding a competent jurist willing to pledge to overturn Roe v. Wade seems highly unlikely. I am unaware of any Supreme Court nominee who has made such a pledge and who has then been confirmed by the Senate. If it has happened, it has been very, very rare. If the President were able to find such a nominee, it seems quite unlikely that the Senate would confirm him — even if half of the members of the Senate agreed to do so — because of procedural rules on such matters as filibuster and cloture. Even if it did, for him to find the Supreme Court majority required to overturn Roe v. Wade would be extraordinarily difficult.

Rather than attempt to find ways to “repeal” or “overturn” Roe v. Wade, it makes far more sense for the States to explore situations arising during the second trimester where the language of Roe v. Wade and its progeny seem to give them leeway to limit abortions, and for the States to use the substantial latitude they already have further to limit third semester “late term” abortions, except when medically appropriate for the survival of the pregnant woman.

Contraception

Putting Roe v. Wade aside for the moment, the chances of prohibiting contraception are close to zero. Anyone who wants that to happen should consider what other long enjoyed “choices” he might also be prepared to see limited? Choices of sexual positions in our own bedrooms? Choices of what we can read and hear (political correctness seems already to be moving in that unfortunate direction)? Choices of what we can eat and drink (there have already been unfortunate movements in that direction as well)?

That raises another “pro choice” issue — around which some apparently feel that the current presidential election should revolve — that of “free” contraceptives and abortifacients. They are relatively inexpensive and requiring them to be provided at the expense of employers or governments (tax payers) strikes me as ridiculous, even ignoring the very important constitutional right of churches to formulate their own religious doctrines. Anyone who cannot afford contraceptives or abortifacients (and even those who can afford them) can easily get them “free” from numerous private sources. Were they to be provided “free” by governments (tax payers), what other programs would face diminished funding in order to provide them? The same question might also be posed as to “free” abortions. Even if there were a consensus on taxing “the rich” more to pay for them, there are other more important things which only governments are capable of providing — police protection, our military forces and national security, for example — and for which funding is already insufficient.

There is no constitutional right to free contraception or abortion

I argued here that there is no constitutional right to free abortion or free contraception:

The Bill of Rights, Amendments I – X, specifies various individual rights and identifies things that shall not be done by our governments or their agents to impair those rights.

Amendment I provides,

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

It has not been been held that these guarantees require that religious organizations be given “free” churches, other facilities or otherwise subsidized. Nor is it required that those desiring to exercise freedom of speech or of the press be provided means of communication at no cost to themselves and therefore at costs borne by others. Those desiring peaceably to assemble need not be given free transportation to facilitate assembly nor need those desiring to petition for redress of grievances be financially assisted in doing so. Governments can elect to do so using funds obtained by taxation or other constitutional means; they need not. Non-governmental entities can elect to do so; they need not.

Amendment II provides,

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Although the right to keep and bear arms has been upheld by the courts repeatedly (with some limitations of dubious legitimacy), it has never been determined that arms must be provided gratis or in any way subsidized by our governments or by others. Governments can elect to do so using funds obtained by taxation or other constitutional means; they need not. Non-governmental entities can elect to do so; they need not.

Amendment IV provides,

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The rights of the people to be secure in their persons, houses, papers and effects have never been determined to require that people be subsidized in obtaining such houses, papers and effects. Governments can elect to do so using funds obtained by taxation or other constitutional means; they need not. Non-governmental entities can elect to do so; they need not.

There are many more compelling issues in the current presidential campaign than contraception and abortion; the fate of our nation is far more critically dependent upon how the Federal Government deals (or fails to deal) with those issues than upon how it deals (or fails to deal) with the very limited aspects of contraception and abortion that it is capable of reaching.

(This article was also posted at Dan Miller’s Blog.)

Articles written by Dan Miller
Tags: abortion, Constitution, contraception, pro-choice, pro-life, Roe v. Wade
Categories: Law, Politics | Comments (2) | Home

2 Responses to ““Pro Life,” “Pro Choice,” and “Vagina Voting””

Tom Carter | October 27th, 2012 at 3:42 pm

Dan, thanks for an excellent discussion of the politics of abortion and the realities of “rights.” Like you, I have a foot in both camps — I’m generally pro-choice, in that I believe that women (and the men involved, if that isn’t heresy) should have some choice in these matters. If they don’t have a legal, safe choice, they’ll end up in back alleys (or more classy but no more safer locations) using coathangers or dangerous drugs.

However, I also believe that abortions after viability of the fetus should not be permitted in general, except for the health and safety of the mother. That means, specifically, the third trimester. More specifically, the closer to live birth we get, the closer to murder we get. I support the formulation I first heard from Bill Clinton — abortions should be safe, legal, and rare.

Many eminent legal scholars have pointed out that Roe v. Wade is bad law. I agree with that, but I wouldn’t want to see it overturned. It provides a useful framework that balances federal power against states’ rights, and its guidelines are reasonable. Without it, we’d be thrown into a muddle of contradictory state laws and policies. As much as conservatives may not like it, there are cases where the federal government has a legitimate role. This is one of them.

I really don’t understand how many liberals stand on the abortion issue (and now, it seems, gay marriage) as the issue that overrides all others. The economy can collapse, we can lose the ability to defend ourselves, our foriegn policy can be incompetent and dangerous, but as long as a candidate supports abortion (and now gay marriage), he’s their guy (or gal).

Dan Miller | October 27th, 2012 at 4:27 pm

Thanks, Tom

As to whether Roe v. Wade is good or bad law, I think it’s the best that could have been done in the circumstances. What “life” means or when it begins are religious questions, not legal questions, and our courts are not (and should not be) religious courts. What were the other choices? Simply deny review? Affirm or reverse the lower court decision? Remand for “further action consistent with the decision of this Court” without instructions?

Instead, the Court provided useful guidance to the States on when, and the circumstances under which, they have sufficient legal interests in a fetus to protect it as well as the welfare of the pregnant woman, based on the medical status, “viability,” of the fetus. By doing so, the Court seems to have indicated that as medical technology improves and viability comes earlier than at about the twenty-third week, as was apparently the case some forty years ago, the States can push back from the third and into the second trimester the time at which they have sufficient interests in a fetus to afford it protection. Fetal ability to feel pain was neither raised nor discussed, possibly because there were no clinical studies on the matter forty some years ago. Now there are, and at least one State has tried to push the envelope there. We will eventually find out what happens.