Copyright 2003, by Mark Edward Vande Pol
Like so many political battles that never seem to get resolved, Right to Life versus Reproductive Rights to Abortion is a pair of dishonest answers to the wrong question.
A “Right to Life” is an impossibility, if only because immortality is not a condition that can be guaranteed by the State. Indeed, quite the contrary: police shoot to kill and armies fight wars wherein the loss of even innocent life is sanctioned as “collateral damage.” Such takings of human life are obviously not murders. Conservatives claiming a “right to life,” as a euphemism for banning abortion, in fact desire Constitutional protection of fetuses from legally sanctioned death. So perhaps we would be more honest to call it that.
Yet even if we did, how would the State prosecute a murder case in an instance where mere fasting, physical rigor, or failure to follow a doctor's orders could cause a spontaneous abortion? Considering all the technical means now or soon available, one would almost have to put a pregnant mother in restraints to prevent her from killing her unwanted baby. Even if we could outlaw RU-486, the drug war has been so spectacularly unsuccessful that a ban is unlikely to prevent its use. Between simple miscarriage and abortion’s more grizzly forms there is too much graduation of circumstance for a Constitutional Amendment to be both comprehensive and enforceable. It won't work.
On the other hand, a "Reproductive Right to Abortion" starts out as an oxymoron and graduates to signal hypocrisy. Liberals invent all sorts of sterile terms in order to dance around the insane notion that killing a growing human fetus with its own unique DNA isn’t taking a distinct human life. Nobody but an idiot would argue that it isn’t.
Which brings us to the Roe v. Wade. Besides the obvious concern over the Federal government interfering with State regulation of medical practice, for Justice Blackmun to distinguish the legal treatment of a fetus by its gestational age was plainly silly. Aldous Huxley certainly understood that an artificial womb would soon be possible early as the 1930s and clearly spelled out the disastrous consequences of government control over human life and death. Roe should be overturned on all those bases, if only as an example of the need for better Supreme Court Justices.
That our rights are God-given is what holds them superior to the limited powers the people granted to the United States, not the other way around. It is that Constitutional guarantee to protect the rights of every citizen that includes those unable to exercise their own, whether the insane, the aged, or the injured. However, the Constitution does not acknowledge the rights of citizenship in the unborn (indeed quite the contrary).
To Amend the Constitution to include the unborn as natural persons, would give government the power to act as their adversary whenever their interests compete with other citizens, namely their parents. If government can take that control, doesn't that render the unborn child a ward of the state? Do you want the government to decide what is in the “interest” of an unborn baby? What if that included certain “improvements”? Isn’t that a serious risk when such protections don't accomplish much of anything to prevent abortion?
There is just no way to design an enforceable “Right not to be Aborted Amendment” that would not also put the existing rights of citizens in jeopardy. From a standpoint of enforceable law, is an insoluble problem. Neither would such a Constitutional Amendment ever pass the Congress or be ratified by the states without vocal support by a large majority of the people. Such does not exist.
Still, Roe v Wade must be overturned if only for legal reasons. Then what?
The beauty of the federal system is that we would then have 50 sets of working trials with which to improve regulation of medical practice concerning all issues related to the unborn. It improves our chances of getting it right just as it did in the case of welfare reform. It also demonstrates that the conservative preference for federalism (versus socialist command and control) motivates better solutions in a competitive marketplace of legal and administrative ideas.
Some will argue that State laws governing medical practice offer little protection for fetuses because people simply could go to another State to obtain an abortion (just as they could cross national boundaries were abortion totally banned). Federal laws can outlaw crossing state lines to obtain an abortion with heavy penalties for fraud. If you don't think the Congress would pass such legislation, what makes you think they would ever pass a Constitutional Amendment?
Outlawing all abortion would also bring this country back to traumatic proceedings that made criminals out of young teens who were innocent victims of rape or incest, forcing them to risk their lives bearing a child. Many of those who oppose abortion make exceptions for such cases, thus one can hardly call a “right to life” a universal principle. Which brings us to that “larger question” in the title of this article.
The issues surrounding abortion are almost identical to a host of other medical issues where technology has provided us with a set of complex, time sensitive choices, where no matter what path is selected, the competing life and death interests of human beings are at issue:
As technology progresses, there will be ever more cases presenting difficult choices about who lives and who dies. If our society has made such a mess of such a simple procedure as abortion, think of the ethical dilemmas new medical research is producing at a rate that is wildly outstripping our legal and political institutions. It will soon be possible to extend all life indefinitely. It won't be cheap. To make that choice means that somebody, somewhere in the world, could have had food, basic medicines, protection, or shelter. It's a fact that begs the moral question: “Verily I say unto you, Inasmuch as ye did it not to one of the least of these, ye did it not to me. ”
We don't have any choice but to make decisions about who lives and who dies. It sucks, but it is a fact of life.
The commonality among these medical issues broadens the decades-long legal battle over abortion into a discussion of how to develop the legal, moral, and administrative systems by which to help people make the tough decisions about their lives and loved ones that come with our rapidly expanding technical ability to manipulate the entire human life cycle.
By now it should be obvious that the existing court system is the last place to be making such decisions. The issues are too variable, the outcomes too uncertain, too technical, and too urgent for that system to render just decisions. They involve the patient, the physician, and disinterested sources of legal, technical, and ethical expertise, as well as the representative of the insurance pool that pays for the procedure or its alternatives. Because of their time-sensitive nature, the appeals process must necessarily be very limited. Such courts might be convened within hospitals or electronically.
Combining these life and death issues not only puts the issue of abortion in the context in which it belongs, it broadens the number of interest groups who suddenly realize that they too have a stake in issues of life and death beyond mere sexual convenience.
So when conservative candidates for public office are confronted with questions on abortion, it works to their advantage to point out the need to transform the decision-making processes by which to manage artificial manipulation of life and death. Such a response highlights the compassion, discipline, and clarity characteristic of conservatives as critical to bringing productive solutions to vexing moral dilemmas.
