The Unrepentant Individual

...just hanging around until Dec 21, 2012

November 14, 2005

Right to Privacy Means Nothing to Abortion

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
Left Brain Female . . . in a Right Brain World linked with Carnival of Liberty XXI
Eric's Grumbles Before The Grave linked with The Council Has Spoken
The Strata-Sphere linked with The Council Has Spoken!
Watcher of Weasels linked with The Council Has Spoken!
Watcher of Weasels linked with Submitted for Your Approval
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
Posted By: Brad Warbiany @ 11:33 pm || Permalink || Comments (22) || Trackback URL || Categories: Uncategorized


  1. I think you are absolutely correct. The issue is when life begins, not privacy, and the branch of government that should make that “factual” determination in the first instance is the legislative, not the judicial. But our legislators, Ted Kennedy and John Kerry for example, a large segment of whose political base is ironically very anti-abortion, are terrified that the responsibility for making that critical decision will be handed to them.

    Comment by Cathy — November 15, 2005 @ 10:19 am
  2. Brad, I think the reason the Democrats are fighting so hard on the abortion issue is because that’s all they have left to fight over. They have to discredit Alito the best they can and this is how they have picked to do it. Honestly, I hope he gets confirmed.

    The abortion issue is a very hot potato and everyone has his opinion on it. I think you already know what my opinion is. No need for discussion.

    Comment by Lucy Stern — November 15, 2005 @ 10:34 am
  3. Something very interesting is that a columnist for the ISU Newspaper (The Iowa State Daily) wrote a column very similar to your post. Here’s a link to the column:

    It is nice to see that even people at a university are fed up with this abortion litmus test bullshit.

    It was even more refreshing to see this quote in a college newspaper:

    “The Bill of Rights plainly states that “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 federal government has only so much power as the Constitution gives it and, in recent years, it is obvious to any constitutional scholar that it has far exceeded these bounds.”

    Maybe there’s hope for this country yet.

    Comment by Mike — November 15, 2005 @ 11:03 am
  4. Cathy & Lucy,

    I think you’re right, and it cuts both ways. The Left knows that if they settle the issue, they can’t whip up their base on the fears that the EEEVVVIIILLL Rethugnicans will appropriate total control of every woman’s uterus in their bid for natalist patriarchal rule. Likewise, the Right knows that a huge portion of their voting block is the Religious Right, and a large factor in Bush’s 2004 win was the ability of Bush to come out scaring people into thinking that if you elect a Democrat you’ll have abortions up to 20 minutes before birth and icky gay people marrying each other. And it’s just one step from that to falling into the depths of hell, doncha know?

    I don’t think our politicians have any desire to take this ball out of the Supreme Court’s hands, because they they’re accountable to the voters for their actions on it. Since any progress either way is likely to infuriate their own base or their opponents’ base, it’s like striking a match in a room full of dynamite. The biggest fear any politician has is the unknown, and this would shake up the entire debate giving us a hell of a lot of unknowns. Gridlock makes a politician a lot more relevant than if the hard questions were settled.

    Comment by Brad Warbiany — November 15, 2005 @ 11:34 am
  5. If history is a guide, Alito—if confirmed—will be making decisions about freedom of speech, the rights of the accused, the scope of government powers under the commerce clause, the elements of procedural due process, eminent domain, the war on drugs, guns, dormant commerce clause issues affecting online trade, and a whole bunch of other things. It’s all pretty important stuff.

    But all we’ll hear about during the confirmation hearings is Abortion. Abortion, abortion, abortion. And more Abortion. It’s an emotional issue for a lot of people, you can count on both sides to show some really bad behavior, and it’s an easy issue to understand. So that’s all the media will talk about.

    Comment by Windypundit — November 15, 2005 @ 1:17 pm
  6. Tuesday Revue – November 15, 2005

    This week’s Revue starts off with a post that immediately struck me as something Mencken would have written, if he’d been Albertan, an Oilers fan and a faithful reader of blogs. [U]rging good cheer is pointless. The Edmonton Oiler fan has been chosen…

    Trackback by New World Man - he's got a roadmap of Jupiter — November 15, 2005 @ 1:43 pm
  7. You know, there’s an interesting contradiction you missed Brad. Historically, the patriarchal society that the left hates treated children, whether born or unborn, as chattel property. The argument made by the left, including left libertarians, that a woman may do as she pleases with the baby in her womb is nothing more than treating that baby as chattel property. I guess the patriarchal mode is okay if it supports your base?

    Comment by Eric — November 15, 2005 @ 3:38 pm
  8. Excellent post Brad! Like you, I wish this entire stupid debate would go away. There are so many more important issues out there and we are bogged down with this issue.

    I’ve purposely avioded this issue on my blog as well. If someone wants to know my view on Roe v. Wade, I’ll refer them to this post because you are right on the money on this one.

    Comment by Stephen Littau — November 15, 2005 @ 5:34 pm
  9. The Sovereign Individual

    Around the Life, Liberty & Property Community, and some related blogs that aren’t part of the community, there’s been a burst of writing this week on individual rights. And it’s really good stuff. Brad Warbiany writes about a Right to…

    Trackback by Eric's Grumbles Before The Grave — November 19, 2005 @ 1:59 pm
  10. “If the unborn should be extended unalienable rights,….”

    That’s the problem. Our Founding Fathers understood the simple fact that the Constitution cannot grant rights. Only our Creator can grant unalienable rights. That precious child/person/fetus,mass of cells/whatever, is 100% alive in its progress at a stage of its life. It is 100% a person, not a dog, a plant or a rock. It is alive and growing, until it is murdered by its Mother in conspiracy with a medical person and the state. If the word murder is offensive- the very act is that much more so!
    The sad part is everyone – I mean everyone, knows what the game is about!

    Comment by DL — November 19, 2005 @ 5:42 pm
  11. Links and Minifeatures 11 20 Sunday

    I must apologize for my lack of spreading link love around these last few days, but between RINO Sightings and this monster that took me a couple of days to think thr…

    Trackback by Searchlight Crusade — November 20, 2005 @ 8:38 pm
  12. Carnival of Liberty XXI

    Wow! Hard to believe how quickly this year has flown – here it is Thanksgiving already! Well, if you need some fodder for conversation around the turkey table that is sure to generate lively discussion, you’ve come to the right place.

    Trackback by Left Brain Female in a Right Brain World — November 22, 2005 @ 7:04 am
  13. Submitted for Your Approval

    First off…  any spambots reading this should immediately go here, here, here,  and here.  Die spambots, die!  And now…  here are all the links submitted by members of the Watcher’s Council for this week’s vote. Council li…

    Trackback by Watcher of Weasels — November 23, 2005 @ 3:24 am
  14. Nice post, but you missed something critical: science. And this is not trivial or cold. Just like we must acknowledge the laws of nature when making laws and morales, we cannot outlaw the earth being round simply because it bothers some people to face the fact the earth is round.

    While the pro-choice would like to say a fetus is not a person, it is scientifically false. In the biological world the species homo sapien sapien has many lay terms associated with it: Person, human, human being. They are all synonymous with the currently living individuals of the stated species.

    Genetic/DNA identify both species and individuals within a species. And DNA is a legally tested scientific basis for law. A person is unique most of the time, legally, by unique DNA. That is why a son or daughter cannot be confused with a parent when investigating a crime.

    Well at conception this distinction appears. The pro-life and religious based views on this matter were prescient and insightful because science has borne out their position that the new human being, person, individual of the species homo sapien, sapien appears at conception. Check the DNA and you will find the fetus (which is a stage of life, not a form of life) is a human organism distinct from the mother.

    So, how that folds into the debate is probably more important than anything else. Because, through a legally tested and upheld scientific methodology, the fetus is without a doubt a human being – a person.

    Comment by AJStrata — November 23, 2005 @ 4:59 pm
  15. The Council Has Spoken!

    First off…  any spambots reading this should immediately go here, here, here,  and here.  Die spambots, die!  And now…  the winning entries in the Watcher’s Council vote for this week are Acute Senatitis by Gates of Vienna…

    Trackback by Watcher of Weasels — November 25, 2005 @ 3:17 am
  16. The Council Has Spoken!

    The Watcher’s Council has selected their winning posts for this Thanksgiving week and here are this week’s results.
    In the Council category the winning post was Acute Senatitis by Gates of Vienna, with second place going to What Would Win…

    Trackback by The Strata-Sphere — November 25, 2005 @ 11:25 am
  17. AJ,
    I brought up that this is the crux of the issue. To those who are pro-life, the key is that the fetus is a baby and deserves the right to life. To those who are pro-choice, the fetus is a non-entity when it comes to morals.

    But I wouldn’t rest on science when it was the Church who ostracized Galileo, and it is frequently members of the same Church who believe in 6-day Creationism despite the scientific evidence for evolution.

    You can rely on science to a point. But I’d find it hard to believe that a mass of undifferentiated cells (at zygote stage) would be considered a true sentient person with a “soul”. I don’t know if you can rely on science to put the legal test of personhood at conception. And at the same time, I think you can easily show that at 6.5 months, what you have in there is a real, live, baby. So it again is not an easy task. To the hardcore pro-life, there can be no answer other than “it’s a person at conception”. To the hardcore pro-choice, there can be no answer other than “it’s the woman’s body until the baby comes out”. Neither side seems to completely hold water.

    Comment by Brad Warbiany — November 25, 2005 @ 10:53 pm
  18. Brad,

    Well Galileo was right and the church was wrong. And a zygote is may not be sentient – but it will be if left alone. Science has a lot to say since the facts are as immutable as the fact the earth is round.

    Legally (which is a lower standard sometimes to scientifically) the human individual is created at conception. You can try to argue this, but it is a fact supported by the same DNA evidence that targets a criminal verses a sybling, child or parent. There is no escaping scientific fact (vs a scientific theory which is open to debate).

    When society can debate abortion on facts equivalent to the earth being round (vs flat) is when we mature to a point we can face the issue.

    Personally I could care less about the hard core left or right. A fetus is a stage of life (like baby, toddler, teen, adult). The form of life (cell, tissue, organ limb, organisim) is completely defined. A fetus is a human organism because its DNA is unique. Flatworlders can pretend, the rest of us deal with reality.

    Comment by AJStrata — November 26, 2005 @ 1:11 am
  19. The Council Has Spoken

    I’m belatedly getting the results of the Watcher’s Council nominations and voting for Thanksgiving week up. This was, truly, a fantastic week for nominations to the Watcher’s Council. We had two council posts tie and the Watcher had to cast…

    Trackback by Eric's Grumbles Before The Grave — November 26, 2005 @ 10:07 pm
  20. [...] First off, we head over to The Unrepentant Individual to see what he has to say about the right to privacy and abortion in his post Right to Privacy Means Nothing to Abortion. It is a very well written diatribe which points out very succintly that: 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. I couldn’t agree more! You have to read the entire piece to follow the logic (if you haven’t done so already – I have, but have never put it so clearly) when he writes: 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? Good job! I’m glad you got that off your chest, Brad – it was a pleasure to read! [...]

  21. When the Supreme Court is acting rational then all nine of the Justices admit there is a right to privacy in the Constitution as you can see in Minnesota v. Carter and a number of other cases. That right is based on the fourth amendment where the word “search” gives its existence away. It is based on the legal fact that you can do anything you want with your own property such as to hide or conceal it. Remember that your property can be your body, your music, information about you, etc.

    Now I am going to surprise you here in that the argument about abortion is an argument about the liberal theory of an evolving constitution vs. the conservative original intent theory, The Justices in Roe v. Wade ignored laws such as the inheritance laws that defines unborn children as legal persons, They also ignored William Blackstone’s “Commentaries on the Laws of England” which our founders used to settle arguments while writing the Constitution as it declared that human life started at quickening and from that point onward an unborn child was a person. They then used circular reason by saying that because unborn children did not have equal protection under the law they were not persons and because they were not persons they did not have a right to equal protection under the law. They thus escaped having to declare that because unborn children were persons they were covered by the law against murder.

    Comment by Kerwin — December 9, 2005 @ 7:51 pm
  22. [...] Around the Life, Liberty & Property Community, and some related blogs that aren’t part of the community, there’s been a burst of writing this week on individual rights. And it’s really good stuff. Brad Warbiany writes about a Right to Privacy and Abortion, one of the best posts on the topic I have ever seen. Stephen Littau tackled the War on Drugs in his entry More Mandatory Minimums Madness. Or, there is Coyote’s Immigration, Individual Rights and the New Deal, where Coyote lays out the foundation for individual rights as clearly and succinctly as anything I’ve seen in modern writing. There’s a lot more out there, and I’m fairly sure we are going to see much of it in the Carnival of Liberty this week. In fact, since Left Brain Female is hosting it, I would guess we’ll see her entry, Libertarianism=Personal Responsibility again. Since it was this entry that prompted me to write of the Sovereign Individual, I think I ought to show you why. We talk much of individual rights, states rights, freedom of speech, second amendment rights, etc. but in all this talk of rights, we also must begin to stress that along with rights comes a great commission – and that is that of personal responsibility. [...]

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