Monday, October 31, 2005

Law, Liberty, and Abortion

This an abridgement of a post at Liberty Corner II. It is complete but for long quotations from Supreme Court opinions.

There are compelling legal and libertarian arguments against abortion. The essence of the legal argument is this: Roe v. Wade was decided wrongly. But that argument will not convince reflexive libertarian defenders of abortion. For them, I have a separate, four-fold argument against abortion: Life cannot be treated as property; the appeal to "viability is circular; privacy cannot be an absolute right; and the appeal to "safety" opens the door to the legalization of any form of murder. I conclude by explaining how the legalization of abortion plays into the hands of the state by creating a precedent for the taking of innocent life wherever the state finds it convenient to do so.

The Wrongness of Roe v. Wade

Abortion was considered murder long before States began to legislate against it in the 19th century. The long-standing condemnation of abortion -- even before quickening -- is treated thoroughly in Marvin Olasky's Abortion Rites: A Social History of Abortion in America. Olasky corrects the slanted version of American history upon which the U.S. Supreme Court relied in Roe v. Wade.

Because abortion was not a right at the time of the adoption of the Ninth Amendment, there is no unenumerated right to abortion in the Constitution. The majority in Roe v. Wade (1973) instead seized upon and broadened a previously manufactured "privacy right" in order to legalize abortion. . . .

[excerpts of the majority opinion in Roe v. Wade]

In effect, the Roe v. Wade majority acknowledged that abortion is not even an unenumerated right. It then manufactured from specified procedural rights enumerated in the Bill of Rights -- rights which are totally unrelated to abortion -- and from strained precedents involving "penumbras" and "emanations," a general right to privacy in order to find a "privacy" right to abortion. I have dissected a key precedent, Griswold v. Connecticut (1965), in the "Liberty" section of this post. It bears repeating that in drafting the Ninth Amendment Madison had in mind no particular unenumerated rights:
It is clear from its text and from Madison's statement [upon presenting the Bill of Rights to the House of Representatives] that the [Ninth] Amendment states but a rule of construction, making clear that a Bill of Rights might not by implication be taken to increase the powers of the national government in areas not enumerated, and that it does not contain within itself any guarantee of a right or a proscription of an infringement.
It is therefore unsurprising that the majority in Roe v. Wade could not decide whether the general privacy right is located in the Ninth Amendment or the Fourteenth Amendment. Neither amendment, of course, is the locus of a general privacy right because none is conferred by the Constitution, nor could the Constitution ever confer such a right, for it would interfere with such truly compelling state interests as the pursuit of justice. The majority simply chose to ignore that unspeakable consequence by conjuring a general right to privacy for the limited purpose of ratifying abortion.

The spuriousness of the majority's conclusion is evident in its flinching from the logical end of its reasoning: abortion anywhere at anytime. Instead, the majority delivered this:
The privacy right involved, therefore, cannot be said to be absolute. . . . We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.
That is, the majority simply drew an arbitrary line between life and death -- but in the wrong place. It is as if the majority understood, but wished not to acknowledged, the full implications of a general right to privacy. Such a general right could be deployed by unprincipled judges to decriminalize a variety of heinous acts.

Underlying the majority's sophistry was its typically "liberal" reluctance to place responsibility where it belongs, in the hands of those persons who (in almost all cases) conceive through engaging voluntarily in an act, the potential consequences of which are well known. Thus we read:
Maternity, or additional offspring, may force upon the woman a distressful life and future. . . . All these are factors the woman and her responsible physician necessarily will consider in consultation.
All these are factors which "the woman," barring rape, would have known before conception. . . .

[Justice White's dissent, followed by excerpts of Justice Rehnquist's concurring dissent]

Roe v. Wade
is nothing more than an illogical, ill-founded, politically expedient position staked out by seven justices who were caught in the tide of "personal liberation." That tide, which rose in the 1960s and has yet to fully recede, is powered by the perverse belief that liberty is to be found in license.

The Supreme Court's subsequent decision in Casey (1992) is a step in the right direction. As blogger Patterico explains, Casey
1) upheld the central holding of Roe on stare decisis grounds; 2) stripped the abortion right of its status as a "“fundamental right"” under the Constitution; and 3) replaced Roe's trimester framework with a rule tied to viability.
The next step, or steps, should be to undo Roe v. Wade completely and then turn it around. The States have no basis for allowing abortion (except where a mother's physical health or life are endangered) because to do so deprives the fetus (a person) of due process of law and equal protection under the law, in violation of the Fifth and Fourteenth Amendments.

Abortion is Anti-Libertarian

The demonstrable fact of Roe v. Wade's wrongness will not dissuade those libertarians who defend abortion as a extra-legal right. Unsophisticated, self-styled libertarian defenders of abortion hold an "anything goes" view of liberty that is in fact antithetical to liberty. They may call themselves libertarians, but they might as well be anti-war protesters who block traffic or "greens" who burn down ski lodges.

Liberty requires each of us to pursue happiness without causing harm to others, except in self-defense. Those libertarian defenders of abortion who bother to give the issue a bit of thought try to build a case for abortion around self-defense, arguing that a woman who aborts is defending herself, and that no one should question her act of self-defense.

The self-defense argument -- which is sometimes billed as a property rights argument for -- goes like this: A fetus is an "uninvited guest" in or "invader" of its mother's body, which is the mother's property. The mother may therefore do with the fetus as she will.

But a fetus is neither an uninvited guest nor an invader. Rather, it is a life, and that life -- by biological necessity -- is its mother's responsibility:
  • Conception, in almost all cases, is the result of a consensual act of sexual intercourse. (Rape, which accounts for a relatively small number of applications for abortion, is an exception. But it's an exception that shouldn't dictate what happens in the majority of pregnancies. If the state insists that rape victims give birth (as it ought to because of the state's obligation to protect life), the state then takes responsibility for the adoption of those babies who may be unwanted by their mothers.)
  • Conception is a known consequence of the act of sexual intercourse. And it has been shown that when abortion becomes less readily available (e.g., more expensive),
    [t]his induces teenage girls to avoid risky sex, which will likely have the effect of lowering pregnancy rates, abortion rates, and birth rates among this group of individuals. . . . Behavior is not static, and claims based on the assumption of static behavior are flawed. [That is, "they" will not "just get pregnant, anyway": ED]
  • It has been shown, as well, that
    [l]aws requiring minors to seek parental consent or to notify a parent prior to obtaining an abortion raise the cost of risky sex for teenagers. . . . [O]ur results indicate that the enactment of parental involvement laws significantly reduces risky sexual activity among teenage girls. [So much for "back alley abortions": ED]
  • Life indisputably begins at conception:
    Surely the child is alive then [at the tying of the umbilical cord]. It cannot be the mere act of tying the cord that produced life. Then when did life begin? With respiration? That is only one added function. There was circulation previously, and the power of nervous action and motion. Why is not a fetus alive when it is diving and plunging in its mother's womb? Simply because its lungs are not inflated? Out on such nonsense! One might as well say that a child born blind was not alive because it did not use its eyes. It is on the record, I believe that children have been born by the Caesarean section, after the death of the mother. If there was no vitality in the fetus previous to respiration, then why was it not dead, like the mother? There can be no doubt of it, there was vitality or life. Then if we acknowledge that the fetus had life, how can we say at what period of gestation that life commences? The period of quickening varies, and I do not see why a fetus is not quite as much alive just before it moves as just after. . . . [From O.C. Turner, "Criminal Abortion," Boston Medical and Surgical Journal, Vol. 5 (April 21, 1870), pp. 299-300. Quoted by Marvin N. Olasky in Abortion Rites: A Social History of Abortion in America, Regnery Publishing, Inc., Washington, D.C. (1995), pp. 121-122.]
  • A person who conceives therefore has incurred an implicit obligation to care for the life that flows from her consensual act.
  • Given that the existence of a fetus cannot cause harm to anyone but its mother, the only valid route for terminating the life of a fetus would be a legal proceeding that culminates in a judicial determination that the continuation of the life of the fetus would cause grave physical harm or death to the mother.
A fetus, in sum, cannot be treated as "property," to be disposed of willy-nilly. A libertarian who argues otherwise can do so only by regarding the fetus a sub-human implantation for with the mother bears no responsibility. Such a libertarian might as well argue for a right to keep slaves or a right to dispose of dependent children and parents through involuntary euthanasia.

When that realization strikes home, the next step may be an appeal to the viability of the fetus. The argument that a fetus is "inviable" -- and therefore somehow undeserving of life -- until it reaches a certain stage of development is a circular argument designed to favor abortion. A fetus (except in the case of a natural miscarriage) is viable from the moment of conception until birth as long as it is not aborted. It is abortion that makes a fetus inviable. Abortion therefore cannot be excused on the basis of presumed inviability.

Drawing an arbitrary line, say, three months after conception does not change the fact that a life is a life. And if that arbitrary line can be drawn, why not draw it at birth or just after birth or at any time during a child's life? Remember, we are arguing here about libertarian principles, not legal niceties. If a child is a mother's "property" -- or if a mother always has a right to "defend" herself from an "unwanted guest" (in her womb or in her home) -- why stop at abortion in the first trimester? (Actually, the law hasn't stopped it there, which is a point that I'll come to when I discuss the slippery slope down which we're headed.)

Where, then, lies a valid libertarian defense of abortion? In privacy? Not at all. Privacy, to the extent that it exists as right, cannot be a general right, as I have argued above. If privacy were a general right, a murderer could claim immunity from prosecution as long as he commits murder in his own home, or better yet (for the murderer), as long as he murders his own children in his own home.

A "practical" libertarian might argue that legalizing abortion makes it "safer" (less dangerous to the mother), presumably because legalization ensures a greater supply of abortionists who can do the job without endangering the mother's life, and at a lower price than a safe abortion would command without legalization. I'm willing to grant all of that, but I must observe that the same case can be made for legalizing murder. That is, a person with murderous intent could more readily afford to hire a professional who to do the job successfully and, at the same time, avoid putting himself at risk by trying to do the job himself. "Safety" is a rationalization for abortion that blinks at the nature of the act.

I am unable to avoid the conclusion that abortion is an anti-libertarian act of unjustified aggression against an innocent human being, an act that is undertaken for convenience and almost never for the sake of defending a mother's life. Murder, too, is an act of convenience that is seldom justified by self-defense. Abortion, therefore, cannot be validated by mistaken appeals to self-defense, privacy, viability, and safety. Nor can abortion be validated (except legalistically) by a series of wrongly decided Supreme Court cases.

The Slippery Slope

If libertarians are to be faithful to libertarian principles, they must oppose the law even when -- especially when -- it puts convenience above principle. As I wrote here (modified language in brackets):
You may like the outcomes in Griswold v. Connecticut, Roe v. Wade, and Lawrence v. Texas because [you just like them or because they comport with your half-baked notion of liberty]. But it should bother you that the Supreme Court can so blithely turn the law on its head to enact its own beliefs, on the pretext of finding rights in "penumbras, formed by emanations" of the Constitution. A Court that can do such things is a Court that can just as easily interpret the law so as to restrict liberty, all in the name of meeting a pressing social need -- as it has in done in many instances. . . .

It all reminds me of this exchange from Act I, Scene 6, of Robert Bolt's play about Sir Thomas More, A Man for All Seasons:
Roper: So now you'd give the Devil benefit of law.

More: Yes. What would you do? Cut a great road through the law to get after the Devil?

Roper: I'd cut down every law in England to do that.

More: Oh? And when the last law was down--and the Devil turned round on you--where would you hide? Yes, I'd give the Devil benefit of law, for my own safety's sake.
Libertarians who applaud the outcomes of such cases as Griswold v. Connecticut and Roe v. Wade because those outcomes seem to advance personal liberty are consorting with the Devil of statism. Every time the state fails to defend innocent life it acquire a new precedent for the taking of innocent life.

Thus we come to the slippery slope. As I wrote here:
[T]hink about the "progressive" impulses that underlie abortion (especially selective abortion), involuntary euthanasia, and forced mental screening -- all of them steps down a slippery slope toward state control of human destiny.
In a later post I said that "the state is condoning and encouraging a resurgence of Hitlerian eugenics." If you think I exaggerate, consider this:

In an article titled, "The Abortion Debate No One Wants to Have," a former Washington Post reporter speaks of her Down Syndrome daughter and the conflicts such children provoke among enlightened pro-abortion professionals. She concludes:

And here's one more piece of un-discussable baggage: This question is a small but nonetheless significant part of what's driving the abortion discussion in this country. I have to think that there are many pro-choicers who, while paying obeisance to the rights of people with disabilities, want at the same time to preserve their right to ensure that no one with disabilities will be born into their own families. The abortion debate is not just about a woman's right to choose whether to have a baby; it's also about a woman's right to choose which baby she wants to have.

Amy Welborn makes this apposite comment:

. . . This is not about "having" or "not having" babies with disabilities - the common way of discussing such things, when they are discussed at all. It is about "killing" or "not killing" babies with disabilities. Period.

And Wilfred McClay at Mere Comments provides us with a perspective rarely included in the debate.

I myself recall having a conversation with a Down's syndrome adult who noted the disparity between Senator Edward M. Kennedy's well-publicized support for the Special Olympics, and his equally well-known insistence that no woman should have to bear the indignity of a "defective" or unwanted child. "I may be slow," this man observed, "but I am not stupid. Does he think that people like me can't understand what he really thinks of us? That we are not really wanted? That it would be a better world if we didn't exist?"

. . . This from a speech by the late Malcolm Muggeridge, given at the University of San Francisco in 1978:

. . . I know, that as sure as I can possibly persuade you to believe: governments will find it impossible to resist the temptation . . . to deliver themselves from this burden of looking after the sick and the handicapped by the simple expedient of killing them off. Now this, in fact, is what the Nazis did . . . not always through slaughter camps, but by a perfectly coherent decree with perfectly clear conditions. In fact, delay in creating public pressure for euthanasia has been due to the fact that it was one of the war crimes cited at Nuremberg. So for the Guinness Book of Records you can submit this: That it takes just about 30 years in our humane society to transform a war crime into an act of compassion. That is exactly what happened.
Not only can it happen in America, it is happening in America. Thus convenience does make killers of us all -- or all of us who condone abortion and therefore encourage its accompanying eugenic evils.


Related posts:
I've Changed My Mind (08/15/04)
Next Stop, Legal Genocide? (09/05/04)
Here's Something All Libertarians Can Agree On
It Can Happen Here: Eugenics, Abortion, Euthanasia, and Mental Screening (09/11/04)
Creeping Euthanasia (09/21/04)
PETA, NARAL, and Roe v. Wade (11/17/04)
Flooding the Moral Low Ground (11/19/04)
The Beginning of the End? (11/21/04)
Peter Singer's Fallacy (11/26/04)
Taking Exception (03/01/05)
Protecting Your Civil Liberties
Where Conservatism and (Sensible) Libertarianism Come Together (04/14/05)
Conservatism, Libertarianism, and Public Morality (04/25/25)
The Threat of the Anti-Theocracy (05/03/05)
The Consequences of Roe v. Wade (06/08/05)
The Old Eugenics in a New Guise (07/14/05)
The Left, Abortion, and Adolescence (07/21/05)