THE LIBERTARIAN ENTERPRISE
Number 172, May 6, 2002
Overturn Roe: YES! (Closing)
by W. James Antle III
Exclusive to TLE
Even many constitutionalists who favor legal abortion have indicated their belief that Roe is bad constitutional law. Mr. Westmiller's contention that it is in fact inextricably tied to the Constitution's underlying principles is based on his belief that there is a natural right to abortion, a presupposition I obviously reject.
Libertarians differ on abortion based on whether they believe abortion laws or abortion itself constitute initiatory violence and there can be no natural right to commit initiatory violence against another human being. These arguments have already been fleshed out here and may be again in the future, but for this discussion it should be adequate to state that if abortion is an act of initiatory violence, its prohibition is not "slavery" and does not violate the Thirteenth Amendment.
Similarly, if one regards the "fetal cops," totalitarian inspections of pregnant women and the concept that fetal rights should somehow supersede women's rights as imaginary bogeymen used as a distraction, it is also clear that there is no constitutional violation.
Mr. Westmiller would instead have an unelected body mandate a one- size-fits-all national solution to an issue about which the Constitution is silent and there isn't consensus even among libertarians. The Constitution was explicitly amended to prohibit slavery within the states. The Supreme Court offered a "strict construction of the Constitution's racial flaws" rather than applied "the penumbra of equal rights for every human being" in Dred Scott precisely because there was rampant disagreement over whether black slaves were human beings, or if they were human whether they were persons or citizens with rights the rest of society had any obligation to respect. (Incidentally, the Constitution's original "three-fifths" clause was intended to limit Southern slaveholders' political power by preventing them from counting their slaves when congressional representation was being determined, and did not apply to free blacks.)
Libertarians on both sides of the abortion debate should be willing to have these same questions decided with respect to fetuses. Are they merely potential life like sperm or somatic cells that can be used in cloning, or as complete physical organisms in their own right are they human beings with at least a right not to be electively destroyed? This is not a question for the federal judiciary nor is there a scintilla of evidence that the Framers truly intended it to be.
State governments may no more violate individual rights than the federal government, but this again begs the question of whether there is in fact a right to abortion. There is adequate disagreement over this point to heed the dictates of constitutional federalism and bring this debate closer to the people for them to conduct out in the open. Overturning Roe will not end the abortion debate; it will simply allow it to continue on more honestly constitutional terms.
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