Wednesday, February 11, 2009

Why Abortion is Legal And Why It Shouldn’t Be

(Printed in the PDN, Saturday, October 25, 2008)

A famous local talk show host recently shared his distaste for the topic of Abortion. I agree with him. The word “abortion” scrapes on the brain like the proverbial fingernails on a chalkboard.

Distasteful or not, abortion is in the news and is likely to remain in the news at least until Bill 374, the Partial Birth Abortion Ban Act of 2008 comes to a vote.

Nationally of course, abortion is always in the news, especially with the current election where, on this issue, there is a very clear line between the two presidential candidates. Obama made that line even clearer when in the 3rd debate he declared: “Roe v Wade probably does hang in the balance.”

However, abortion is never a topic in a local election. As a matter of fact it is almost never a topic at all. Recently, it reared its distasteful head when tax payers paid for an “attorney general approved” abortion for a DOC inmate, a story that made news for all of about 24 hours. Prior to that, the last time abortion was an issue was in 1990 when Guam passed a short lived anti-abortion law.

But as long as abortion is in the news and the bill is under review, perhaps now would be a good time to take a clear-eyed look at what it is, why it is legal, and why it is controversial.

First, let us clarify that for the present discussion, the term “abortion” refers to the voluntary termination of a pregnancy (versus miscarriage – involuntary).

Next we must establish what it is that we are terminating. Whether we call “it” a zygote, an embryo, a fetus, or a child, the “it” is a human simply because the “it” can’t be a monkey, a dog, or an ear of corn. (Some argue the legality of the “human” label, but here “human” is simply a biological designation.)

The fact that the “it” is alive is self-evident or else there would be no need to terminate “it”. The next question is can human life be terminated legally.

Yes it can. Our society allows for the conditional killing of human beings. Those conditions traditionally have been associated with either personal self-defense or social self-defense (as in the case of capital punishment or war). We also allow for the killing of innocent human beings when the death of the innocent person is not intended such as in an accident.

But in Roe v Wade, the Supreme Court had to find new grounds to justify the killing of a human in the womb since self-defense and “accident” wouldn’t work. Justice Harry Blackmun “found” his reasons in the Fourteenth Amendment.

Most people are familiar with the “right of privacy”, but another and less familiar reason was Blackmun’s argument that the word “person”, as used in the Fourteenth Amendment, does not include the unborn. The Court bought it and Roe v Wade became the law of the land.

So why don’t the pro-lifers just sit down and shut up? Because the Supreme Court has been wrong before. Anybody recall Dred Scott?

The crux of the issue and the fuel that drives the debate is that Roe is bad law for the simple reason that the Fourteenth Amendment doesn’t address personhood at all. The Amendment is concerned with defining “citizen” and not “person”. Blackmun had to extract a definition for personhood from the words “…all persons born or naturalized in the United States, and subject to the jurisdiction thereof…”

The wording “all persons born” actually suggests that being born is something an already existing person undergoes and not an event that makes them a person. However, Blackmun and the Court decided for the latter.

The pro-life lobby believes that Roe v Wade was a bad decision, just like the Supreme Court declaration that Dred Scott was Irene Emerson’s personal property and not a free man was a bad decision.

There were those who wanted Scott and his abolitionist supporters to sit down and shut up too. They didn’t. The Scott decision would be overturned. But the Civil War would come first.

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