Abortion, Of Course

Here’s my take on the issue. As a matter of policy, I’m something of a centrist: I think abortion should be legal only for the first three months or so of a pregnancy. I guess that makes me more or less pro-choice. But as a matter of law, Roe was wrongly decided. The Constitution, after all, has nothing to say on the matter. The issue should consequently be left to the states.

On Friday night I attended an ACLU function in Chicago. The point of the event was to seduce me into becoming a member, and somewhere amid the free booze, free snacks, and free performance from a gay comedy duo, it worked. I probably agree with the ACLU only about two-thirds of the time, but it’s a pretty important two-thirds: they’re the guys willing to stand up for the neo-Nazis who want to march and for the atheist students who recoil at sectarian prayer in public schools. This is an organization worth supporting.

And yet there’s still that other one-third — that substantial minority of the time in which I get the sneaking suspicion the ACLU is more concerned with promoting a political agenda than with protecting people’s constitutional rights. I was talking with one of the ACLU’s board members at the event and got into a debate that I think illustrates some of the fuzzy thinking that goes on in liberal legal circles. We bantered back and forth about a couple of different issues, but the most contentious one (predictably) was Roe v. Wade.

Of course, that’s not the standard line among my progressive cohorts. The most common pro-Roe argument is essentially as follows: There’s a “penumbra” of rights implicit in the Constitution, and one of these rights is privacy. Since the abortion issue is primarily about a woman being able to control her own body, the Constitution implicitly protects her right to an abortion. The Roe court itself found the right to privacy inherent in the due process clause of the 14th amendment.

A second argument — not one that appears in the Roe decision, but one that my sparring partner proffered Friday night — rests on the 14th amendment’s equal protection clause. According to this line of reasoning, to ban abortion is to deprive women of equal rights under the law, since men can’t get pregnant and would never face the choice of having an abortion.

To understand the problem with both of these arguments, let’s step back and recall the fault lines of the abortion debate. One side says the issue is about a woman’s body, and the other side says it’s about the life of a fetus. The pro-choicers say the fetus is merely an extension of the mother, and the pro-lifers say an unborn baby has rights of its own. OK.

In seeking to establish a constitutional right to an abortion, both the privacy and equal protection arguments assume precisely what they seek to prove: that the fundamental issue is choice, not life. If one already accepts the premise that a fetus has no human rights — that the unborn child is a non-entity, or at least a non-person — the legal question is fairly straightforward: banning abortion violates a woman’s privacy and, most likely, her right to equal protection under the law. After all, if the fetus is out of the picture, there’s no one’s rights to protect besides the woman’s.

But what if one doesn’t accept this premise? What if one believes a fetus is a person and has human rights? In that case, the equal protection argument immediately gets turned on its head: to allow abortions is to discriminate against unborn babies. Indeed, abortion would also violate the Constitution’s due process clause by depriving the unborn of “life, liberty, or property without due process of law.”

The privacy argument, too, would quickly become surpassed. For if we weigh the right to life against the right to privacy, it’s pretty clear which one wins. We can accept that abortion is a privacy issue only if we trivialize the life question to the point of virtual irrelevance.

And so we’re back to where the abortion argument always starts: as a wrestling match between those who wish to frame it in terms of choice and those who wish to frame it in terms of life. The Constitution may have an implicit right to privacy and it surely has explicit rights to life and equal protection under the law. But on the question of how to frame the abortion debate, the Constitution offers nothing but the sound of crickets chirping.

So what then? Well, the framers knew the Constitution wouldn’t address every issue that might arise over the life of the republic, and they didn’t want it to, in any event. So they provided guidance about what to do in such circumstances. The 10th amendment reads:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

In other words, the guys in the black robes don’t get to make the call on this one — not the ones at the federal level, anyway. Legally speaking, abortion is (or should be) an issue to be resolved in the legislative process, probably at the state level. That might not be welcome news to those who cannot fathom a distinction between their personal views and what the Constitution says — or, relatedly, between the role of legislators and the role of courts. But if we believe in constitutional democracy, then we believe in it precisely when we wish our constitution were different. Otherwise we don’t believe in constitutional democracy.

Sorry to break it to judicial activists on both sides, but to quote the geneticist Charles Murtaugh, the universe is not here to please you.

This post originally appeared at jesselava.com