The Logic of Abortion

          Old Gadfly:  Gentlemen, this week the U.S. Senate Judiciary Committee performed its “advise and consent” duties during lengthy hearings of President Trump’s nomination of Brett Kavanaugh to fill a Supreme Court of the United States (SCOTUS) vacancy created by the retirement of Associate Justice Kennedy.  What would you say is the left’s central political issue with President Trump’s pending nomination?

AM:  Democrats are concerned that his choice (no pun intended) would overturn SCOTUS’s 1973 Roe v. Wade ruling.

 

IM:  Republicans, on the other hand, are focused more on a candidate they regard as an originalist or textualist, one who will strictly interpret the original meaning of the Constitution’s text, as opposed to elite who trust five black robes to legislate from the bench, essentially softly amending the Constitution through judicial rulings.  The left strongly supports SCOTUS judicial activism, and its creation of Constitutional rights.

 

AM:  Kavanaugh argued that everything in the Constitution points to liberty.  Thus, one can reasonably infer that the freedom to choose to terminate a pregnancy is a liberty to be protected in the Roe v. Wade ruling.  Since subsequent abortion-related cases have not overturned Roe v. Wade, the “law” seems to be protected by legal precedent.  Precedent is one of the principles that Kavanaugh cites in his legal analyses.

 

IM:  Other constitutional scholars understood Roe v. Wade to be a blatant example of judicial activism.  For example, here is a commentary from Justia:

The Court was praised in many circles for its progressive attitude toward evolving social trends, even though the decision was framed in paternalistic language and seemed more focused on protecting physicians than women. However, many commentators have viewed its decision as a prime example of judicial "activism," a term that refers to when the Court is seen to infringe on the authority of other branches of government. A magnet for controversy to the current day, Roe has been challenged consistently and lacks support from many current members of the Court. The trimester framework proved less workable than the majority had hoped, and decisions such as Planned Parenthood v. Casey have eroded what initially seemed like a sweeping statement in favor of women's rights. Many states that oppose Roe have enacted laws that will go into effect in the event that it is overturned.

Old Gadfly:  Liberty is one of the three inalienable rights our government was ordained and established to protect.  Life and the pursuit of happiness are the other rights.  But, we’ll get to these later.  For now, let’s summarize the basic facts about Roe v. Wade.  Who were the plaintiff and the defendant in this case?

AM:  Jane Roe was the alias 21-year old Norma McCorvey, the plaintiff, and her attorneys Linda Coffee and Sarah Weddington used when they initially filed a lawsuit against Henry Wade, the Dallas County District Attorney who represented Texas law that allowed legal abortions only in the case of rape, incest, or the health of the mother.  McCorvey initially tried to get an abortion (this was her third pregnancy) claiming rape, but there were no police reports of a rape.  She ended up giving birth and then giving the child up for adoption.  Incidentally, McCorvey today is a pro-life activist.

Old Gadfly:  What was the basis for the case before SCOTUS?

IM:  In 1970, “Roe” claimed Texas law was unconstitutional.  Judges from the Northern District of Texas and the Fifth Circuit Court of Appeals ruled in favor of Roe, based on the “implied right to privacy” of the Ninth Amendment, but declined to issue an injunction against enforcement of the law.  This led to an appeal to SCOTUS.  SCOTUS deferred hearing the case till related cases had been adjudicated.  They eventually heard the case and announced their 7-2 ruling in favor of Roe on January 22, 1973.    SCOTUS rejected the District Court’s Ninth Amendment rationale in favor of a right to privacy under the Fourteenth Amendment.  Justice Blackmun, writing for the majority, acknowledged that the majority of States had statutes similar to the Texas statute, yet for reasons explained in his opinion declared abortion a fundamental right under the United States Constitution and rejected the argument of a fetus’ “right to life.”

Old Gadfly:  Wasn’t the Fourteenth Amendment one of the three Reconstruction Amendments following the Civil War?

AM:  Yes.  SCOTUS invoked Section 1 of the amendment, which was ratified on July 9, 1868 with the explicit intent to enfranchise former slaves as citizens with the same rights as other American citizens.  The language in Section 1 is straight-forward:

Section 1.  All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States wherein they reside.  No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny any person within its jurisdiction the equal protection of the laws.

     

Old Gadfly:  How does abortion fit into any of this language?

 

IM:  Great question.  Abortion is an action that involves the deliberate termination of a pregnancy.  No one is depriving a pregnant woman of her right to life, liberty, or property.  In the vast majority of abortion cases, a woman becomes pregnant after voluntarily engaging in sexual intercourse.  No one deprives a woman from this liberty and as such enjoys equal protection of the laws.

 

Old Gadfly:  The Fourteenth Amendment clearly states: “nor deny any person within its jurisdiction the equal protection of the laws.”  Is not the emerging life in a mother’s womb a person entitled to the same rights to life, liberty, and happiness?

AM:  Terms and definitions seem terribly vague.  Some believe life begins at conception.  Others subscribe to a more complicated understanding of when a human life begins.  For an example of the latter group, a close reading of Justice Blackmun’s opinion reveals an attempt to derive answers to this question.  His opinion summarized eight major themes:  ancient attitudes, the Hippocratic Oath, the common law, the English statutory law, the American law, the position of the American Medical Association, the position of the American Public Health Association, and the position of the American Bar Association.  While these themes provide a variety of perspectives throughout history, none really support the logic used in the final ruling, which speaks to a woman’s fundamental right to privacy as justification for allowing abortion.  In his opinion, Blackmun even admitted:  “The Constitution does not explicitly mention any right to privacy.”  Yet, he follows this fact with a series of Court rulings that support an “implied” right to privacy.  In the process, Justice Blackmun articulated what is called the trimester framework to offer a “strict scrutiny” guideline that does not question the right to an abortion in the first trimester, allows State intervention if the mother’s health is at risk, and if the “fetus is viable,” allows the State to restrict the right to an abortion but must include an exception to any regulation that protects the health of the mother.

Old Gadfly:   This sounds like a tortured rationalization for justifying an act that many would regard as murder or an assault on the sanctity of life, which is a God-given unalienable right.  The Amendment refers to a person.  When does a fertilized egg become a person?  At conception?  Upon birth?  Upon the capacity to procreate? Upon voting age?
   

IM:  A one-cell amoeba is an example of life, and it even demonstrates primitive awareness when it adapts to its changing environment to survive.  A dandelion physically demonstrates primitive awareness when it leans toward the sun.  A fertilized human egg demonstrates even more sophisticated primitive awareness when its DNA signals the production of different cells that become part of a system of systems in the most sophisticated and complex forms of life.

 

Old Gadfly:  So, it seems as though the ruling in Roe v. Wade was an unwitting attempt to tamper with the laws of nature.

 

AM:  What I find ironic is that our Founders/Framers understood life, liberty, and pursuit of happiness as unalienable rights granted by a Creator, not a Constitution.  The American Constitution is a system of governance to protect these God-given rights.  In conflict with these rights, SCOTUS ruled in Roe v. Wade that the Constitution grants a fundamental right to an abortion as an extension to the implied man-made right to privacy.  Aside from all the quibbling, abortion is the termination of a life, which is a God-given natural right.

Old Gadfly:  Gentlemen, since we are men, we can only attempt to understand the issue of abortion through logic.  Perhaps there are other valid reasons for SCOTUS to validate a Constitutional right to an abortion.  What might they be?

IM:  One reason might be similar to catching a cold.  No one would reasonably and deliberately seek to catch a cold.  Some people will go to great lengths to protect themselves from a cold—avoiding contagious people, frequently washing hands.  Some who are less vigilant become more vulnerable.  Yet, we see good reasons for developing remedies to overcome the effects of catching a cold.  So, perhaps women who become pregnant with an unwanted child are either ignorant of the pregnancy risks of sexual intercourse or already know she has access to a government-funded abortion. Unlike catching a cold, getting pregnant is an outcome of deliberate intercourse with the exception, in a very small percentage of pregnancies, of incest or rape.

AM:  Rape, by definition, involves coercion.  While this may sound harsh, not all cases of incest involve coercion.  Even in cases defined as statutory rape, it does not matter if the sexual activity was consensual.  In any case, the child in the mother’s womb has no choice, of being there, being violently vacuumed out of the womb, or carefully dissected to preserve lucrative body parts for research.

IM:  I can imagine a young, confused and frightened rape victim seeking liberation from this crime be getting an abortion only years later to regret the decision, wondering what would have become of her child as a grown man or woman, knowing there is no way to correct the action.  Would the remorse be less intense in giving up a child for adoption as opposed to aborting it?  The remorse would reflect empathy for the child who had no role in the crime.

AM:  Your imagination reflects actual empirical evidence.  Dr. David Reardon of the Elliott Institute has revealed that not only does an abortion damage a woman physically and psychologically, in cases of rape or incest, over 80% who aborted did regret the decision.  Over 80% who did not abort are glad they made the right decision.

 

Old Gadfly:  I often hear people preferring to use the terms pro-choice and reproductive rights instead of the Constitutional right to an abortion.  Do these terms more accurately describe the logic of abortion?

IM:  No.  The term “pro-choice” applies only to the decision to let the child in a woman’s womb live or not.  It completely ignores the choice that led to the pregnancy.  Well-over 95% of pregnancies result from consensual sexual activity.[1]

 

AM:  Then there is the claim of a woman’s “reproductive rights.”  If this concept is intended to suggest anything other than a decision to reproduce, then it is dishonest and disingenuous.  What it really means is the right to engage in sexual activity without consequence.

 

Old Gadfly:  There are other concepts that should be considered in this discussion.  I would argue that most Americans believe in free will as an important element of the concept of liberty.  Liberty is not a license to engage in behaviors that violate laws or harm others—actions that are contrary to the notions of “establish Justice” and “insure domestic Tranquility” in the Preamble to the Constitution.  We respect, and our Constitution is designed to protect, the individual right to exercise free will within a just society.  Exercising liberty includes respecting the rights of others.  But, when an action violates the law or harms others, then the individual making the choice violates the rights of others.

 

IM:  Good point.  Where does the choice to have sexual activity fit into one or more of the cardinal virtues of prudence, justice, fortitude, and temperance?  Is it prudent for a single woman to engage in sexual behavior?  What are the potential consequences if one is to become pregnant?  How would such an act promote the common good of society?  How is an aborted pregnancy just?  Does sexual activity represent an intemperate action reflecting vices of lust, sloth, or pride?

Old Gadfly:  Closely related to these arguments is the inalienable right to the pursuit of happiness.  Engaging in sexual activity without consequence is completely irrelevant to the pursuit of happiness, because it reflects mere primitive desire and behavior.  Enduring happiness, according to Immanuel Kant, is the reward of performing one’s moral duty—foregoing personal self-interest in favor of a greater good, such as being a good husband, father, wife, mother, neighbor, teacher, doctor, soldier, citizen, and so forth.  A decision to abort one’s child is not a moral duty.  It is contrary to summum bonum, Kant’s categorical imperative known as the greatest good.[2]  In the grand scheme of things and in relation to the American idea of the “general Welfare,” a deliberate abortion is completely immoral.

AM:  I think we can agree that abortion as a so-called Constitutional right defies logic and appears to have been an invented right by seven members of SCOTUS.  The decision remains controversial among constitutional scholars, not to mention ordinary citizens who are loyal to their Judeo-Christian tradition.

 

Old Gadfly:    Why do you believe Roe v. Wade is such a litmus test for those on the political left?

IM:  Power. Women vote; unborn children don’t.  They fear that a new Court might “tamper” with the rationale used in the Roe v. Wade ruling, and in the process diminish the presumed power of groups like Planned Parenthood and the politicians with whom they collaborate.  Those who believe in the importance of a Constitutional Republic would be wise to consider scholar Robert Dahl’s caution:

To govern a state well takes more than knowledge.  It also requires incorruptibility, a firm resistance to all the enormous temptations of power, a continuing and inflexible dedication to the public good rather than benefits for oneself or one’s group. . . . The likely effects of power on those who wield it were succinctly summed up in 1887 by an English baron, Lord Acton, in a famous statement:  ‘Power tends to corrupt; absolute power corrupts absolutely.’ . . . However wise and worthy the members of a ruling elite entrusted with the power to govern a state may be when they first take power, in a few years or a few generations they are likely to abuse it.  If human history provides any lessons, one surely is that through corruption, nepotism, the advancement of individual and group interests, and abuse of their monopoly over the state’s coercive power to suppress criticism, extract wealth from their subjects, and insure their obedience by coercion, the Guardians of a state are likely to turn into despots.[3]

AM:  I might add that life is filled with adversity--some due to choices, some due to circumstances beyond one’s control.  Elitist arrogance of thinking that society has a moral obligation to remedy the full range of adversity is what C.S. Lewis cautioned against in The Abolition of Man—where elite are the conditioners and those they rule are the conditioned.  In their attempt to conquer nature, nature will conquer man.  The broader implication of this truth is that the same advocates for abortion are the same who wish to punish skeptics of the man-made cause of global warming or climate change. Contrary to this intellectual trend is recognizing the founding idea of America as was one of a self-governing people based on wise and virtuous behavior.  A liberal education (far from a progressive education designed to create instruments for social and political change) is needed to build capacity for virtuous decisions/actions.  Accumulated wisdom would then arm us with the capacity to (a) adapt to, overcome, or mitigate adversity; and (b) extend our wisdom-based traditions into the future, which is one of the expectations of our Constitution’s Preamble to “secure the blessings of Liberty to ourselves and our Posterity.”  The life in a mother’s womb is the “Posterity” our Constitution was designed to protect.  SCOTUS rulings and precedents seem to have ignored this part of the Constitution.

 

Old Gadfly:  Well argued, AM.  We began this conversation with the observation that the left is concerned about President Trump’s nomination for the Supreme Court.  Members of the Supreme Court are certainly important in carrying out their enumerated powers under Article III.  These powers, as well as those delegated to the Legislative and Executive branches, derive their authority from “We the people.” Do we want to be a wise and virtuous people, or not?  President Trump understands this.  He has nominated an associate justice who reflects a wise and virtuous sentiment.  Armed with the inalienable rights of life and liberty, we too must reinforce President Trump’s nomination with our own consistent and habitual wise and virtuous behaviors in every capacity as we pursue happiness—it’s a moral duty and the only way

We the People of the United States, in order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

The moral dilemma and logic of abortion may not be the proper jurisdiction of SCOTUS.  The debate about abortion reflects the crisis of virtue that permeates our modern society, reflected in the great political divide that dampens the American spirit.  Many of those who have hate and contempt for Donald Trump are projecting the hubris of progressivism.  It is not really Trump they hate.  They hate that for which he stands.  He stands for American greatness—a greatness inspired by our Declaration of Independence and codified in our system of governance.  The sacredness of abortion reflects the left’s emptiness and its lust for political power—conditioners dictating to the conditioned.     

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[1] For compelling data on reasons for abortion see http://www.johnstonsarchive.net/policy/abortion/abreasons.html

[2] For an excellent treatment of the construct of happiness and its moral attributes, see the essay on “Happiness” in The Great Ideas:  A Syntopicon:  Volume I (Chicago IL:  Encyclopaedia Britannica, 1952).

[3] Dahl, R. A.  (1998).  On democracy.  New Haven, CT:  Yale University Press, pp. 73-74.