November 14, 2005
I said I wasn’t going to do it. This is my first post on this topic, and I sincerely hope it will be my last. But this needs to be said.
I am sick and tired of the entire battle over the Supreme Court being hijacked by the issue of abortion. If, of course, it made some sense, I could understand. If, for example, the fight over Alito centered around originalism, or it centered around commerce clause jurisprudence, I wouldn’t mind. Those are crucial issues that the Supreme Court needs to be deciding, and when the country is debating those topics, it can only be a good thing.
But abortion doesn’t qualify. You know why? Because the “right to privacy” has absolutely nothing to do with the debate. For example, I happen to believe that there is a basic right to privacy in the Constitution. It’s more of what is left unsaid, rather than what is said, but I think the founders certainly envisioned a right for people to have wide-ranging autonomy from government interference in almost all matters of life. It is enshrined into the 9th and 10th Amendments, with a little support from the 4th (and a little of the 5th), as well as the enumeration of powers in Article 1, Sec. 8. The right to privacy basically exists insofar as the government is not supposed to be granted the powers it would need to overextend itself and violate your privacy. I think the government has no legitimate right to butt its nose into areas where it doesn’t belong, and to the founders, that’s a pretty wide swath of territory they’re not supposed to touch. But that means nothing when it comes to abortion.
This all erupted today when it was found in some old documents written by Supreme Court nominee Samuel Alito, that he didn’t see support for abortion in the Constitution. As Doug of Below the Beltway says today, expect to see a previously civil nomination process turn into a bench-clearing brawl. And why? Does the Constitution protect a right to abortion? Of course not. The entire question of abortion is outside the Constitution. If abortion is moral, then the Constitution would seem to protect abortion. If abortion is immoral*, then the Constitution will not protect it, no matter how many flowery words about “privacy” are uttered.
You see, the underlying question of abortion is extra-Constitutional. The 800-lb elephant in the room, that nobody wants to touch, is a fundamental disagreement so profound that unless it is settled, the issue will never clear. And considering how profound of a difference it is, I find it difficult to believe it will ever be settled.
To the pro-life crowd, the unborn is a person. As a person, that unborn child has inalienable rights to life, liberty, and the pursuit of happiness. To have an abortion is to kill that unborn child, violating its inalienable rights, and would be considered murder.
To the pro-choice crowd, a fetus is not yet a person in the legal sense. It is a resident in a host’s body, and as a resident, it can be removed at the wishes of the woman. As it does not yet have a legal status as a person, while it may be a difficult choice, it is a choice for the woman to make, and it is her body and her choice whether to submit to having a resident.
But here’s where it gets tricky. The vast majority of people can at least agree that the point of viability outside the womb is a point at which the decision changes greatly. The question of trimesters grew out of this very point. While we may never know when a baby truly has a sense of “self”, most agree that if a baby has a reasonable chance of survival outside the womb, it is no longer a “fetus” and has become an “unborn baby”. This is why there is wide-ranging support banning late-term or partial-birth abortion. People see the sonogram and what’s there no longer looks like a tadpole, it looks like a baby. So people might make a compromise and outlaw abortion after an agreed-upon point of viability. But the crazies on both sides of the debate can’t accept this.
To the rabid pro-life crowd, life begins and takes on spiritual meaning at conception. At that point, it cannot be breached. They can’t change this point, because to do so forces them to have a more nuanced definition of “life”. It forces them into a corner when it comes to euthanasia of people who are in a persistent vegitative state, as we saw with the Terri Schiavo debacle. They see the slippery slope. If we start defining whether or not an unborn child is or is not worthy of keeping alive, where does it end? So we stop at the people in comas, or do we move forward into the mentally retarded? At what point does life cease to be precious and can be taken away on a whim?
To the rabid pro-choice crowd, any point of demarcation grants their opponents the issue that it might be a real baby and not just a fetus. They cannot accept the “viability test”, because it also leads down a slippery slope. Arguably, a fetus who is viable outside the womb has already progressed to the point where it undeniably has a “self” to it. So when does the “self” appear? If they concede that it appears by the time a fetus is 7 months, what if future scientific knowledge points to its existence at 5 months? Or at 3 months? If they are forced to admit at some point that it is not a fetus and that it is an actual person, then they have to admit that it’s not just a resident in a woman’s uterus, it’s an actual person. To accept that, even at say a third-trimester demarcation of “viability”, concedes too much of the moral argument to their opponents, and puts them on a weak footing.
So we’ve built a huge apparatus of legal reasoning around the idea of a “right to privacy”. But a right to privacy doesn’t grant you the right to take away the unalienable rights of another person. The right to privacy is a delicate framework, that appears to only correspond to the right of privacy within a woman’s uterus. After all, it doesn’t apply to private property. If I want to keep a slave on my property, I certainly can’t do it. Stepping away from the hyperbole, if I want to hire someone to work for a business I own for below $5.15/hour, I can’t do it. If I’m a parent and think beating my kids is the way to enforce discipline, do I have that right of privacy? All of these things are things I cannot do to another person, no matter how much of a right to privacy I have. The government has stepped in and said that my right to privacy doesn’t give me the right to do certain things to other people, and if we believe that a fetus at some point becomes a “person”, a right to privacy doesn’t allow us to do things that violate their unalienable rights. And ending a life is certainly a pretty damn big violation.
So the Left, who seem to believe there are no rights the government can’t have, are forced into supporting a “right to privacy” in order to appease their pet special interest groups like NARAL and NOW. And the Right, who normally favors limited government and a view of rights based on natural rights, have to deny a “right to privacy” in order to appease their factions on the religious right.
We have ceased to have a real debate of the crucial issues of Supreme Court nominations because the interest groups on both sides, the politicians and the media, all feel an intense heat to determine what will happen to Roe v. Wade. They are wondering what a potential nominee thinks about a question which really has nothing to do with Constitutional jurisprudence. They are asking a moral question of people we will rely on to make legal judgements. In short, they have reduced one of the most important decisions of our entire government, quite possibly more important than electing a President, to a single issue that has no basis being decided by nine justices.
It’s fucked up, and I really can’t take it any more.
Abortion is a very weighty moral question. And as such, there is no easy answer. I don’t have an answer. I have a strong leaning, but it’s gotten to the point where I really just don’t care any more. What I do know is that the damage caused by leaving this issue unsettled and allowing it to derail our entire Supreme Court is absolutely heinous. If we can’t settle this issue, it has the potential to destroy whatever power our Constitution once had. Right now, we have a debate between originalists and those who believe in the “living constitution”. But the legal reasoning holding Roe v. Wade together, and all of the abortion cases since, have the potential to grow into a monstrosity of convolutions that will complete the evisceration of a once-great document. When the left and the right have to completely invert their prior idea of Constitutional jurisprudence to decide a moral issue according to their other beliefs, what respect will they have for that document once they’re done?
*Note: I am not saying above that the Constitution is the arbiter of morality. Only that the underlying moral issue of abortion is one of unalienable rights and whether they should be granted to the unborn. If the unborn should be extended unalienable rights, the Constitution would then protect them. If not, then a right to privacy would seem to provide a foundation for abortion. But the point being that the “right to privacy” assumes the latter, which makes it insufficient on its own to justify legality of abortion.
Erics Grumbles Before The Grave »Blog Archive linked with The Sovereign Individual
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Left Brain Female in a Right Brain World linked with Carnival of Liberty XXI
Searchlight Crusade linked with Links and Minifeatures 11 20 Sunday
Eric's Grumbles Before The Grave linked with The Sovereign Individual
New World Man - he's got a roadmap of Jupiter linked with Tuesday Revue - November 15, 2005
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