Thursday, July 4, 2013

The only response to abortion that matters is one based on The Constitution

The only response to abortion that matters is one based on The Constitution.

My position on the abortion issue is complicated and seemingly paradoxical. It is informed by my status as a preacher's grandkid and ordained minister as well as two decades of work as a sex educator. I can argue the morality and immorality of both sides of this issue -- and I have. In the end I concluded that the conflict between a woman's right to self-determination and fetal right to life is one that is so fraught with emotions and so clouded with religious and moral passions that any decision I arrived at that was not soundly based upon the law of the land (ie The Constitution) was both relative and subjective and could only be reasonably applied to myself. In sum, I've come to realize that our individual convictions don't matter -- the only response to abortion that really matters to us as a society is one based on The Constitution.

So, I re-read The Constitution. For the nth time. But this time, I re-read it through the twin lenses of women's reproductive rights and fetal rights to life.

Surprisingly, I couldn't find anything in the Constitution that specifically guarantees the right to life. It does state that the government cannot deprive someone of life without due process of law, but does that mean that the government guarantees a fetus the right to life? It's a big stretch. The Declaration of Independence indicates that born people are endowed by their Creator with rights to life, liberty, and the pursuit of happiness, but of the those three, only liberty is enumerated as a right in the Constitution. However, if we assume the right to life is under the mantle of the 9th Amendment, then we'd have to also acknowledge that it covers the right to self-determination, which is so fundamental a right that it is the guiding principle of our entire political system: the people are sovereign -- their rights to self-governance and self-determination are inviolate.

Of all the parts of the Constitution, 14th Amendment seems to be most definitive on the question of abortion rights:
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any States deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

In other words, all persons born or naturalized in the United States are citizens of the United States and no government, Federal or State, can deprive a citizen of life, liberty or property without due process of law. Since a fetus is not yet born, it is not a citizen, naturalized or otherwise. Until a fetus is actually, rather than potentially, a member of society, it does not have constitutional rights. It doesn't have standing under the Constitution -- It isn't a person yet. Fetuses aren't individual entities that can be called persons until they are born--until they survive childbirth and exist separately from their mothers. However,  in a softening of that position, The Supreme Court decided in 1973 that the unborn fetus does have constitutional rights around the third trimester (24-28 weeks), as it is capable of functioning independently from the mother at that time.

This creation of rights for the fetus in the Third Trimester is problematic, because it conflicts with women's Constitutionally enumerated rights to liberty and equal protection. This is why challenges to Roe v. Wade are going to come before the Supreme Court again. The creation of rights for fetuses, particularly in State legislatures, potentially creates severe limitations of the rights of all women of childbearing age. Many women do not know they are pregnant until the second trimester when they begin to "show", and what a woman does or does not eat or drink during pregnancy can profoundly affect a fetus. In guaranteeing the fetus a right to live and thus forcing a woman to carry it to term, does the government also have the ability to force all women of childbearing age to change their behaviors so as not to endanger a possible fetus? Does a fetus have a right not to be born with Fetal Alcohol Syndrome or Spina Bifida, one caused by alcohol consumption and the other by insufficient folic acid in the mother's diet? And if the government does hold women legally responsible for what negatively impacts a fetus during pregnancy, what position shall the government take on spontaneous abortions, which are estimated to happen to 35-40% of all pregnancies, 20% of which are unknown to the pregnant woman at the time of miscarriage, and many of which could be prevented by nutritional and behavioral changes? What legal and policing apparatus will the government put into place in order to guarantee that fetal rights are being upheld, and just how invasive will they be with regards to abridging women's Constitutional rights?

Speaking of The Constitution, the 14th Amendment, like the 4th Amendment (The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated) would appear to guarantee a person's right to choose what to do with his or her body unfettered by interference from any government, Federal or State: "No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any States deprive any person of life, liberty, or property..." The body is the property of the sovereign individual, and viewed through the lens of a woman's ability to choose what she (and the government) does with her body, The Constitution appears to uphold and secure bodily choices as an unalienable right. Additionally, forced medical procedures of any kind (unless they're in the interest of the public health, like immunizations or quarantines) are also unConstitutional (read requiring ultrasounds prior to abortions) under the 4th Amendment.

It is also obvious that compelling a woman to continue a pregnancy is also a violation of the 13th Amendment, which abolished slavery and involuntary servitude. "The Thirteenth Amendment’s purpose is to end the specific institution of antebellum slavery. A ban on abortion would do to women what slavery did to the women who were enslaved: compel them to bear children against their will. (A Koppelman, Originalism, Abortion, and the Thirteenth Amendment)

The Fifth Amendment states that "No person shall... be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." If the rights of the fetus are given priority over the rights of the mother and a woman is compelled by her government to carry a child to term, the issue of just compensation arises. Her most private property, her body, has been expropriated by the government in a perverse form of eminent domain, and the Fifth Amendment guarantees just compensation.

But how do you calculate just compensation for compelling a woman to bear a child against her will? Pregnancy is physically and financially demanding on a woman. Health complications often arise which cause a great deal of physical suffering, mental anguish, and medical care. Eventually, mobility, emotional stability, and clarity of thought are impacted by pregnancy, and with them, the ability to work enough hours to earn a living, to pay rent and buy food, and cover medical expenses. Childbirth is widely acknowledged to be one of the most painful experiences a human being can go through. Forcing someone to endure childbirth could be considered torture and thus unConstitutional, but even without that consideration, juries have been known to award millions of dollars to people for pain and suffering on a similar scale, particularly when it has been determined to be intentionally inflicted. And the suffering doesn't end with the birth of the baby. The healing process takes a minimum of six weeks, and that's just the superficial stuff. It takes months and sometimes years to recover from bearing a child. How can someone be justly compensated for being forced to endure that, even if does save a life? In life or death situations some people make choices to save another's life at the risk of their own and others do not. They choose themselves, they chose to act in their own self-interest, and we don't penalize them for it. We don't force anyone to make a choice between their own lives and someone else's -- except in the case of a pregnant woman and her unborn child.

In conclusion, when it comes to reproduction, the governments, Federal and State, have no legal foundation by which they can force a woman to continue a pregnancy any more than it can force a woman to begin or end a pregnancy -- and we're fools if we decide to give any form of government that authority. We really don't want the government involved in issues of reproductive choice because once we open that door again there is so much potential for abuse. To illustrate, I'll remind you of the eugenics programs in the US and Europe in the mid-20th century, the involuntary sterilizations of mental health patients and criminals here in the US, the forced relocations of Native American children into residential schools that were demoralizing and abusive, and the restrictions some countries place on the number of children people can have. From there it isn't that far a stretch to predict a time when our government restricts who can reproduce, forces people to give up genetic material so the government can design it's future citizens, and takes children away from their parents to indoctrinate them according to government wishes.

I recognize that God gave man and woman the ability to choose for themselves how they lived their lives, even knowing that some would choose to sin. The Constitution also secures this ability as an inalienable right for born individuals, and while some governments may recognize that the unborn have rights, ultimately fetal rights cannot be given primacy over the rights of the mother upon whom their very existence depends, because women are guaranteed equal protection under the law by the 14th Amendment. Interpreting The Constitution in any other way re-opens the door for government interference in matters of reproductive choice. We've fought all the way to the Supreme Court in several cases to void State laws abridging rights in this area, and I'm fairly convinced that, should the Supreme Court hear another abortion-related case, the justices will come to the same conclusions, reluctantly or not.

[Note that this essay is a work in progress and may be edited over time.]

It is possible that the right to self-defense as enumerated in the 2nd Amendment may apply here, as well. Certainly the unborn child cannot (except in the case of endangering her health) be considered the equivalent of a dangerous aggressor, however, a woman's body does house the fetus, the body is hers, not the child's, and if she deeply, passionately does not want that fetus occupying her body against her will, it could be argued that an abortion is an act of self-defense in that case, and legal under the 2nd Amendment. I haven't thought this all the way through, though, so I'm not including it in the body of the essay.