Posted by
Chris Travers on Friday, December 15, 2006 1:27:15 AM
In general we in the US tend to see our pro-choice v. pro-life political arguments in the starkest of terms. Either this or that. Either there is a right to an abortion or there isn't. Either abortion is evil or it isn't. These arguments are at best unproductive and at worst (and most likely) intellectually dishonest. In fact, although there are serious values differences between the two camps that I don't dismiss, the actual disagreement is pretty limited.
Is there a right under certain circumstances to an abortion? I think we can all agree the answer is yes.
Does this right extend to a women, for reasons of mere inconvenience, decides to abort a pregnancy in its final weeks? I think we can all agree the answer is no.
So it is not a matter of "is there a right" or "is there not a right" but rather how far does this extend.
Before anyone argues with me on the above points, let me state the largely uncontroversial positions in more detail. The 4th and 14th amendments of the US Constitution suggest that no person shall be deprived of life, liberty, or property without due process of law. It is within this framework that the legal side of the abortion debate occurs. Certainly we can all agree that if a woman is likely to die if the pregnancy is not aborted, and this is denied by law (perhaps even a law targetting the woman by name) then this is an unconstitutional death sentence. Hence there is a right to choose to have an abortion at least in the case of risk to the life of the mother. I would certainly hope that nobody would seriously argue that one. Thus one is largely compelled to buy the argument that these amendments apply not only to the executive but also the legislative branches as well.
However, in the liberty guarantee, things get more murky. Every legal restriction passed, from speed limits to homicide laws are restrictions on liberty. This raises ultimate questions about what due process means in this case. IANAL, but my reading of case law suggests that in most cases a rational basis approach is used, which simply suggests that the government can't pass arbitrary restrictions and then make up excuses when before court. Usually this requires that there is an argument that there is a compelling interest an dthat the government is normally acting on that interest. However, one of the aspects of the abortion case law is the question of whether additional scrutiny is required when the government tells us how or when to have children. Whether there are certain innately personal decisions that the government must be held to a higher scrutiny when addressing. Currently matters of sexuality (where not predatory), reproduction (generally), religious practice (oddly enough by statute rather than Constitutional matters), and so forth are held to higher levels of scrutiny. Personal autonomy is a value which is held to be synonymous with liberty and hence is such deeply personal decisions are considered to be subject to greater protection.
However, even if you agree with the paragraph above, it is not always possible to get to the point where you agree that abortion in particular is protected. Heck even if you get to that point doesn't mean you can circumscribe what abortion means. For example, SPUC claims that because contraceptive pills often work by preventing the fertilized egg from adhering to the uterous wall (or so they claim-- they may be exadurating the numbers), that birth control pills are essentially abortifaceants.
The only thing I ask is that before we get into what we disagree about, let's consider how much we actually agree. Maybe then we can have a real conversation on the matter.