In the previous article, we examined why the government has an interest in restricting abortions. We established that the government limits many rights, including the right of self-ownership.
Essentially, irrespective of any law on the books, we established the principles that make unlimited abortion a problematic notion.
But what does the law actually say? Does the federal government actually guarantee “unlimited” abortion rights?
In short, no.
The modern body of federal abortion law started with Roe v. Wade. Here is the introductory summary from Wikipedia:
…the Court ruled 7–2 that a right to privacy under the due process clause of the 14th Amendment extended to a woman’s decision to have an abortion, but that this right must be balanced against the state’s two legitimate interests in regulating abortions: protecting prenatal life and protecting women’s health
RvW establishes a right to an abortion, but not an unlimited right. Some of the limits on that right specifically deal with protecting the unborn baby.
Laws can actually recognize the personhood of the unborn baby and be found constitutional under RvW.
In 1989’s Webster v. Reproductive Health Services, the Supreme Court upheld portions if a Missouri state law that started with the following preamble:
“the life of each human being begins at conception” and “unborn children have protectable interests in life, health, and well-being.”
Read that again. This was the preamble to a Missouri state law which placed restrictions on abortion funding, and on abortions of a viable baby. The Supreme Court upheld this law, because Roe already specified that abortion could be restricted in the event the pregnancy had gone on long enough for the baby to be considered viable.
In Planned Parenthood v. Casey, 1992, the US Supreme Court upheld the provision of a law requiring parental consent for minors seeking an abortion. It also, in light of medical advances, allowed “viability” to be pushed from 28 weeks (where it sat during the RvW timeframe), to 22 weeks.
The law obviously doesn’t recognize some sort of absolute “right to abort”. People who claim that it does, or claim that is should, have a bunch of legal and ethical challenges to deal with.
It’s worth noting that abortion rights organizations have challenged many state laws requiring, for instance, parental consent, even though federal courts upheld parental consent laws over 20 years ago. It is clear that abortion advocates are eager to use the courts contrary to current case law to achieve their ends, and yet still have the audacity to criticize pro-life groups as being contrary to federal jurisprudence.
I’ve focused on the ardent supporters of abortion who are unwilling to entertain any legal restriction on the practice, and who can be expected to oppose anything they see as anti-abortion. I’ve focused on them because they have no basis in principle, law, or reality. I think we should all agree not to take them seriously until they present a lucid argument.
I don’t have a good idea of how many abortion rights advocates are in this “hard core” group. However, there is a plethora of polling data here, which shows that the majority of people want abortion to be legal in some situations. Some polls allow respondents to express that they want abortion to be legal in all circumstances, or contrastingly, they want it to be illegal in all circumstances. The contingent that supports always-legal abortion is slightly larger than the contingent that wants always-illegal abortions, but the majority of American consistently agree that there should be restrictions on abortion.
What about pro-life groups? What are they really after?
An obvious answer is that they want fewer abortions to happen. Another theme is that they want fewer late-term abortions to happen. Still another theme is that they want abortions to not be matters of “convenience” or of simply changing one’s mind.
A difficulty that many pro-life advocates have is that what they find most upsetting about abortion is what actually happens least often. Late term abortions – that is, anything after 20 weeks gestation – are fewer than 2% of the abortions performed in the US. One reason for that may be laws that restrict late-term abortions, or, it may be that most women who decide to abort make that decision much earlier in their pregnancies.
Another idea that can be popular with pro-life advocates is that women who seek abortions do so without regard for the baby they are killing or without consideration of the moral implications of their choice…. Or that they use abortion as a form of birth control.
There’s nothing to suggest that this happens in the majority of cases. However, the reality is that late term abortions of convenience DO happen, even though it represents a very small portion of the total number of procedures.
According to polling data, an increasing number of Americans identify themselves as “pro-life” and think that abortions should be somewhat more restricted than they are currently.
But to what end?
Suppose that all abortions in North Dakota were somehow made entirely illegal, and that somehow this was found constitutional. What then? Does anyone think that throwing teenage girls in jail is a good idea? Does anyone think that throwing doctors in jail is a good idea?
For the sake of argument, suppose that a mother is dying from a pregnancy complication, and the doctor believes that removal of the baby is the only way to save the mother’s life. Should the mother be legally prevented from authorizing or otherwise securing an abortion to save herself? Should the doctor be legally prevented from performing the procedure?
What about those terrible situations where a woman is raped? Yes, it is not the baby’s fault. But, it’s not the woman’s fault either. Who really will sleep better at night forcing a woman to give birth to a baby that looks like her attacker?
In the event it isn’t clear where my head is at on these issues, I’ll spell it out: I think abortion is unfortunate, and I think people that get excited about expanding abortion are tragically misled… and may have some ethical problems they aren’t addressing. An unrepentant abortion enthusiast should, at some point, back away from the political posturing and grapple with the perverse reality that they are celebrating the slaughter of human children.
I wish that nobody was having abortions, and that there was never a situation in anybody’s life where abortion seemed like the best way out of the dire circumstances. I wish that nobody took the procedure lightly, and that nobody else dismissed all women who’ve been through it as having taken it lightly.
For many women, it must seem like the best option at the time. For many women, it must still seem like the right choice years later. I am unwilling to say that 100% of women and doctors who have or perform abortions should go to jail. I’m even unwilling to say that 100% of women shouldn’t have abortions. It’s a fallen world; crippled by sin. We are all put into situations we cannot measure up to.
That said, if we set aside the moral considerations from the legal ones, what we really need to ask is – when are we sure we need to put somebody in jail? The entirety of government is concerned with when to threaten to put someone in jail, and when to make good on that threat. So that’s really what we’re talking about, and I just don’t get very excited about it.
For the near term future, I don’t think abortion laws should change much. I think restrictions like consent requirements, and funding source limits, and restrictions on types of procedures are all fine, and could apply to practitioners via the threat of revocation of licensure. I don’t like occupational licensure, but that’s the tool we have and use for this sort of thing. Basically, society is going to continue to set some rules on how abortions get done, and if doctors don’t abide by the rules, they can go practice medicine elsewhere. I think that’s probably enough.
This isn’t a satisfying answer, since pro-lifers want fewer abortions and pro-choicers want fewer restrictions. I’m not satisfied either, since I said at the outset that this was a conflict of self-ownership rights between two people, and I still don’t know how to resolve that today.
What I really want is a way out of this mess. What I want is an answer that preserves the self-ownership rights of both parties, and which removes the conflict, and which removes the polarization in society over the issue. What I want is something that shows that the dichotomy – either the mother has all the rights or the baby has all the rights – is false.
We’ll talk about that in the final installment.