Roe V. Wade and Abortion

Okay, I’ve put it off for a while, but here’s my next blog post: my thoughts on the abortion in light of the overturning of Roe v. Wade. This topic is one that I’ve avoided for years for one simple reason: I don’t know what the answer is and I don’t see a feasible path to coming up with one. I should note that these thoughts are oriented more towards my opinions about what laws should exist concerning abortion rather than whether or not I think that abortion is a good idea. For personal and religious reasons, I definitely lean towards erring on the side of pro-life. However, my political beliefs are based on individual rights and there are a number of things that I consider ‘wrong’ that I still firmly believe should be legal.

As anyone who has read my blog knows, my political beliefs are based on the first paragraphs of the Declaration of Independence which talk about unalienable rights which are possessed by every individual equally. I rate a law, a political action, or a supreme court ruling based only on how well it secures the right of every individual. An action which does not secure the rights of every individual equally is invalid. It should not be allowed under the constitution, and should certainly not be supported or enforced by laws, courts, or police.

As a result, I fully support the constitutional amendments that guaranteed all rights to all individuals, regardless of race, gender, economic status, or any other characteristic.

The problem is, that in most situations, if you want to weigh the rights of two individuals, they are in fact two individuals. Abortion is the ONLY case that I can think of where the number of individuals involved is not clearly defined, or even clearly understood. As a result, even though I can draw conclusions about racial discrimination and apply that to sex discrimination, religious discrimination, or discrimination based on any other factor, it is much more difficult to apply those conclusions to the problem of abortion.

The problem is simple if there is only one individual involved. If the only individual involved is the (pregnant) woman, then there really isn’t any legal difficulty. She has rights, and they must be secured. And, for better or worse, historical precedent strongly supports this definitions with almost no exception. A child has never been counted as a person until they are born. People only get added to church rolls when they are born. They are only counted for the census after they are born. Every year when you fill out the tax forms and report the number of people in your family, an unborn child doesn’t count. Historically speaking, an unborn child is not a person, at least not in a legal sense.

Of course, we have made any number of similar statements in the past. At various times, we have said that plenty of other people did not possess all of the unalienable rights. In our history, native Americans, blacks (and other minorities), and women were all deprived of unalienable rights at various times in our history. In case it is not completely evident, I absolutely disagree with every one of those situations where we, as a country, have said that a group of people did not have rights.

I also absolutely disagree with the statement that an unborn child is not a person. However, even though I disagree with it, knowing how to secure the rights of both the mother and the child is extremely hard. It is several orders of magnitude harder than the question of how to secure the rights of blacks, native Americans, or women. And, even though those cases are much simpler, we still do not have them handled completely. Given that, it’s completely natural that the issue of unborn children is unresolved.

To those who honestly believe that an unborn baby is NOT a person (and therefore has no rights), I doubt that anything I say here will be meaningful. This is mainly for those who believe that the unborn child IS a person and DOES have some rights. The question then is what rights and to what degree. Again… I don’t know.

Although I do not have an answer, I I do have some factors that I believe can be presented, and which I believe need to be accounted for in the final resolution (which I am certain I will not see in my life).

ABORTION IS NOT A UNIVERSALLY PROTECTED RIGHT

When you look at what rights are, rights ultimately boil down to freedom to define who you are and the freedom to make choices of how you will live your life. Many of those choices are (or should be) universally protected, such as the right to express your political belief in a peaceful way, or the right to worship as you choose. However, not all choices are included in this protection. Any choice that infringes on someone else’s right to choose is not protected, and in fact it must NOT be protected by law. Other choices may be protected in some situations, but not in others depending on how they will impact someone else’s rights.

The minute you accept the definition that in some way, at some point, an unborn child is as an individual, their rights must be protected. For that reason alone, abortion cannot be a universally protected choice.

A second factor in considering whether a choice is protected or not is determining to what degree the choice is related to the consequence of a previous choice.

The right to make a choice does NOT imply the right to not be held accountable to the results of that choice. An overly simplistic example of this is that you have the right to make the choice to step off a cliff. However, the right does not extend to being able to avoid falling. So, there are many cases where you are absolutely free to make a choice, but you are much less free in your options for dealing with the consequences. The right to make the initial choice must receive a much higher level of legal protection than applies to the choices in dealing with the consequences.

When you think about the times when a woman might consider the choice of having an abortion, the most common situation is where the option is a means of dealing with a consequence of previous decision.

The minute you choose to have sex, even using birth control, there is a possibility of getting pregnant. In this case, having an abortion for an unwanted pregnancy is an action that deals with the consequence of a choice. Protecting that type of reactionary choice is equivalent to saying that you want to be pro-choice but anti-consequence. Even if the pregnancy resulted from the choice of getting drunk which resulted in a decreased ability to make a good choice concerning sex, the option for having an abortion would fall under the category of dealing with a consequence of a choice. In these situations, the option of having an abortion is not necessarily protected, and in this case, we’ll need to take into account the rights of the second individual: the baby.

ABORTION MUST BE AVAILABLE

There are a number of situations where an abortion needs to be a protected and allowed option available to the woman. This primarily occurs when something about the pregnancy was entirely out of the hands of the woman; where it is entirely unreasonable to infer that the woman made a choice to be in the situation caused by this pregnancy.

Please understand that I am not saying that a woman should get an abortion in these situations. I am simply saying that she should have the option to do so if she chooses.

Some situations that apply here include:

  • Rape. Obviously if the woman did not consent to have sex, and that was forced on her, she was not given the chance to make a choice to get pregnant. Every woman needs the opportunity to say no.
  • A pregnancy where the woman’s life is at risk. Even if a woman was actively trying to get pregnant, her choice was to have a child, but the choice was not made to have it at the expense of her own life.
  • A pregnancy where the child’s life is at risk. Again, the woman did not choose to be in that situation, even if she was trying to get pregnant. The trauma of the death of a child, even if not yet born, is severe enough that denying the option of abortion is not justified.
  • The baby is at high risk of physical problems. Again, even if the woman had made the choice to have a child, she had not necessarily made the choice to be put in the situation of having a child that would be unable to function at some minimal level.
  • A woman who is not of the age of consent. By definition, a woman who is not of the age of consent is deemed not of an age to make the decision to have a child. I realize that this one is likely very controversial, but if a person is unable to make a choice to have a child, she needs to have the option of abortion available. Although abortion may not be the right response, I cannot see how you can disallow it completely.
  • A male who is not of the age of consent. Here’s perhaps my most controversial item on this list. I favor a much stronger legal responsibility for BOTH parents (I will discuss this a bit more below). A male who is not of the age of consent should be deemed unable to make the choice to become a parent in the same way a female is. This is not to say that the male should be able to insist that an abortion take place, but in this situation, I believe that an abortion must be an option.

I will state one last time that I am not saying that a woman should get an abortion in any of these situations. But I cannot in good conscience support a law which forbids it in these situations.

MEN’S RESPONSIBILITY

I want to take a moment to talk about the responsibility that men have in this situation. I find it quite reprehensible that women are assumed to be responsible for caring of a child, but they have to take the man to court in order for him to be required to pay child care.

I would like to see the man’s responsibility for the child to be legally codified and mandated far better than it is now.

I believe that if a man has a child, he should be 50% responsible for that child’s upbringing until that child reaches an age where they are an adult (perhaps 18).

I believe that a man should be 50% responsible for the pregnancy. Since it is phsyically impossible for the man to carry the child, I’d say that the man should be responsible for most (or all) of the medical expenses of the pregnancy.

All costs of raising and caring for the child should be split 50/50 between the mother and the father.

The time and work involved for raising the child should also be split 50/50. If the father is not providing any of the time and work in raising the child, he should pay a reasonable wage to the mother (or whoever is caring for the child) to cover their time. This is in addition to the other child care costs.

None of this should require a court case to codify these responsibilities. These should be applied automatically. A court case should only be required to transfer those responsibilities from the father to someone else; or to settle disputes between the parents over what a reasonable child care cost should be.

I suspect that if a would-be-father knew that he would automatically be assuming these responsibilities when fathering a child, he might make better decisions concerning those choices.

WOMAN’S RIGHTS VS. CHILD’S RIGHTS

The heart of the problem rests with the question: what rights does the unborn child have, and where does the balance lie in terms of a woman’s right to choose to have an abortion.

I don’t know that there can be a political solution to that problem. I’m certain that there cannot be a law-based solution. I think that the only political solution that can be applied is a constitutional amendment, but that’s tricky.

When it was finally recognized that blacks are people who possess rights, a constitutional amendment was passed to end slavery (and two additional amendments were passed to secure their rights). This was necessary because laws are simply rules that are put in place to enforce and protect the ideals presented in the constitution. Recognizing that everyone, regardless of race, is an individual with equal rights is not a law. Rather, it is a foundational principal of our entire political system upon which our laws will be based. As a result, a constitutional amendment was the only correct way to handle that. Likewise, recognizing that women had the right to vote in the same way a man does is also a core principal, and again, it was handled (as it should have been) by a constitutional amendment.

We have a similar situation here. In order to correctly resolve the question of when, and to what extent an unborn child has rights can only be done with a constitutional amendment. Unfortunately, in our political environment I consider that an impossibility. We have two parties who have no desire to work together, and who in fact both stir up hostility and even hatred towards the other party. They each fight for that 51% majority which will allow them to dictate much of the course of the country, with little or no regard to the other 49%. A constitutional amendment would require cooperation between the two parties, a practice that I do not see being practiced at almost any level of our government. I have written at length about this in previous blog posts, so I won’t belabor the point here other than to say that I do not believe that it is even possible to solve the abortion problem until we have a government where multiple sides can be presented, peaceful debate can be conducted, and cooperation between opposing sides can be expected. Then, and only then, will we be in a situation where the abortion issue can be handled.

Even then, the solution is beyond me. It is easy to define when a black person should be treated as a person. Always! It is easy to define what rights a woman has when compared to mine. All of them!

But when does an unborn child have rights? And to what extent?

I don’t know.

I believe that the day after a woman has sex, if she were to take a morning-after pill just to make sure she was not pregnant, I would not consider that an abortion. I would look at it as birth control. So, at that point, I believe that a woman’s rights are paramount.

At the other extreme, a day before the due date, I do not believe that a woman has any right to terminate her pregnancy. At that point (provided the baby is healthy), the unborn baby is completely capable of living given the normal level of care that all newborn babies require. At that point, the woman’s rights would NOT include the right to abort the baby.

So, where in the continuum from the day after conception to the day before birth does the woman’s right to terminate the pregnancy end?

I don’t know.

ROE V. WADE OVERTURNED

All of this thought was brought on by the overturning of Roe v. Wade, so what are my thoughts on that?

Roe v. Wade was a decision that overturned many federal and state abortion laws and defined some federal standards of when abortion was allowed. For those that consider abortion a right, Roe v. Wade could be thought of as a protection for that right. For those that consider abortion as wrong, the opposite holds true.

For people (including myself) who look at abortion as an essential right in some cases, and wrong in other cases, I regard Roe v. Wade as a mixed bag. Useful in some cases. Undesirable in others. Pending a time when the abortion issue can be handled correctly, Roe v. Wade was one possible band-aid fix. To be honest, it’s repeal does nothing to solve the problem, but it also doesn’t make the solution any worse.

In fact, in one sense, I am actually quite in favor of the repeal.

The 10th amendment of the Bill of Rights states:

The 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, if it’s not mentioned in the constitution, it should be handled at the state level (if it requires laws and enforcement) or by the people themselves.

The constitution defines how international and interstate relations are to be held (including wars, commerce, and infrastructure). It does not include anything about health care, including abortion.

In my opinion, those are far more appropriately handled at the state level, or outside of the government completely.

In that sense, I am in favor of removing federal regulation of many things in favor of state regulations. Overturning Roe v. Wade does just that, so in some sense, I look at overturning it as 1 down, 1000 to go.

Of course, that sentiment has absolutely nothing to do with the fact that abortion is involved. I would feel much the same overturning any number of other things related to health care, social security, education, and almost every other social issue that I believe the federal government has no right to be involved in (and certainly, no constitutional mandate to be involve in).

So, chalk me up as being in favor of the decision to overturn Roe V. Wade. But also chalk me up as someone who realizes that overturning it accomplished absolutely nothing in terms of resolving the abortion discussion.

4 Comments

  1. Great post Sullivan! I feel very much the same as you do about this issue. Despite how I personally feel about abortion, I agree it should be available to some degree, but also struggle with defining the “line”. But one thing that I believe does muddy the legal waters for this issue are the laws protecting certain bird and turtle eggs, which provide some precedent for protection of the “unborn”.

    1. That is an interesting thought. I personally feel that since most of those laws about bird/turtle eggs apply to endangered species, I’m not sure how applicable they are here. However, it’s an interesting idea to consider a bit more deeply.

  2. That is a great view on the subject. One other aspect that “muddies” the waters is that 38 of the 50 states (based on a very quick google search) consider the homicide of a pregnant woman as a double homicide. So many of the states are already, at least in some aspects, treating the unborn child as a person with rights with legal repercussions if someone takes away their right to life.

    1. Demar, that is a FANTASTIC aspect that I had never considered. It’s a really compelling argument based on legal precedent that the unborn child is a person. I have to give that some thought, but that could be some sort of legal basis for defining when an unborn child has rights. Thanks!

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