THE LIBERTARIAN ENTERPRISE
Number 170, April 22, 2002
REMEMBER 9/11? REMEMBER 4/19!
Overturn Roe? NO!" (Opening)
by William Westmiller
Exclusive to TLE
The Supreme Court's 1973 Roe v. Wade (1) decision to legalize abortion before "viability" was refined by its 2000 ruling in Stenberg v. Carhart (2), finding against state bans on "partial birth abortions". Both landmark cases were thoroughly supported by legal precedent and based on the highest Constitutional principles. Although they don't go far enough, they do preserve the natural right of every woman to control her own body and pursue happiness with little state interference.
The primary fault of the Roe decision was that it failed to apply its primary legal finding to its final decision. In the majority opinion, Justice Blackmun concludes that the unborn "have never been recognized in the law as persons", but the ignored that precedent. Instead, it left this fundamental issue unsettled, preserving a state's claim to some "compelling interest" in protecting "prenatal life". The Roe decision was judicially expedient, but not courageous.
Critics of Roe will fault the court's judicial activism, in that it found legal rights under the "penumbra" of the Constitution. The "right to an abortion" is not listed anywhere in the Constitution, the Bill of Rights or any subsequent amendments; nor need it be.
The word "person" is used everywhere in the Constitution to refer to a born person, but never to a fetus. One can't even imagine "unborn people" as having rights to free speech, to bear arms, due process or equal treatment under the law. It simply makes no sense.
The entire context of the Declaration of Independence and the Preamble to the Constitution enunciate the "overshadowing principle" ("penumbra") of a government limited to the defense of every person's right to life, liberty, and property. Among those implied rights are the freedom to pursue happiness, enjoy privacy, protect personal health and even dispose of undesirable burdens. The Tenth Amendment does reserve powers to the states, but only those powers required to protect individual rights, not to infringe them with impunity. No matter how amused or interested any state government might be, the federal courts are obliged to overturn any law that infringes those individual rights. The courts properly forbade slavery. They should also forbid womb slavery.
There were many interested "authorities" on the varied wings of the abortion argument, all fully considered in the Supreme Court's ruling. The dozen pages of the majority opinion are a clear, readable and fascinating discussion of history, medicine, philosophy and law, from Aristotle to modern state legislation. Every conscientious libertarian should read the text before finding fault.
In its ruling, the court observed a wide disparity among the laws of 38 states and was obliged to apply the equal treatment and due process clauses of the Fourteenth Amendment. At the time, all states agreed that some abortions should be allowed and not a single state ventured to define a fetus as a "legal person". Nearly every state made exceptions for pregnancies resulting from rape or incest and those that posed health risks. So, the court was left with two alternative resolutions: scientific or theologic.
What they discovered was a nexus between the two viewpoints. Religions had historically and almost universally identified "quickening" as the "ensoulment" of the fetus. That arbitrary event corresponded well with the scientific "viability" factor, which identified an approximate time when a fetus might survive outside the womb. The court applied decades of precedent respecting personal "autonomy" (independent existence) as a basis for consolidating all of these perspectives into a majority finding. The court was wrong in opting for convenience, but it was right in deferring to a woman's autonomy over state government dictates regarding her pregnancy.
The Stenberg ruling properly elevated the woman's right to make decisions about her own health above any speculative state claims on behalf of the fetus. The sole female justice, Sandra Day O'Connor, participated in that historic decision, overturning Nebraska's ban on "partial birth abortion". However, the court again declined to challenge Nebraska's use of the pernicious phrase "living unborn child," instead finding that the law had merely stepped to hard on the woman's discretion. In that respect, the court merely postponed the inevitable challenge to "fetal right" laws.
The implications of recognizing "unborn children" extend far beyond abortion, into stem cell research, contraception devices, and even regulations over the course and conduct of romantic relationships. There is virtually no limit to "compelling state interests" when even one woman's liberty can be negotiated into oblivion by state or federal legislatures. Rather than overturn Roe or Stenberg, the court must speak forcefully, by affirming that a fetus is not a person and denying any "state right" to impose slavery on blacks, or pregnant females.