The Constitution is NOT Silent on Abortion

David Limbaugh makes an interesting point on the issue of judicial appointments, which is heating up quickly. In his blog entry on the Arlen Specter controversy, he makes an interesting Constitutionalist argument. "As the Constitution is inarguably silent on the subject of abortion by any stretch, and provides for no federal right of privacy, constitutionalist justices would never have usurped the states' authority over the question of abortion."

The issue of whether abortion should be legal at all depends on whether a fetus is a human life. If a fetus is a human life, abortion is murder; if the fetus is not, then abortion is simply a surgical procedure. So Limbaugh is, at best, leaving it up to individual states to define what a human life is. No matter which side of the abortion debate you are on, that is clearly an unsatisfactory position. Either some states will permit murder or some states will enslave women to something in their bodies that is not a human life. As for the Constitution itself, the first clause of the fourteenth amendment clearly states, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Though this clause refers to birth, this is only a requirement for citizenship and has no bearing on the question of abortion: the clause later says, "nor shall any State deprive any person of life, liberty, or property, without due process of law." So the Constitution, though it does not explicitly say "abortion," it not quite "silent" on the issue. This states' rights argument ends up, depending on what abortion is, either permitting some states to deprive persons (fetuses) of life or depriving pregnant women of liberty.

Our Federal system of government permits states to make their own laws, so long as these laws do not endanger individual rights. In addition to not solving the legal dilemma of abortion, states' rights arguments that ignore the fourteenth amendment of the Constitution threaten to undercut all other individual rights.

Most revealingly, the above states' rights argument comes from an advocate of a federal amendment defining marriage! Why not also an amendment banning abortion? I think the answer to this question might explain the inconsistent approach: what's the easiest way to have Christian values codified into law? I suspect that a slim majority of Americans would not favor a constitutional ban on abortion while a marriage amendment would enjoy popular support. On the latter, David Brooks makes an interesting point (though it IS based on exit polling): "Majorities oppose gay marriage, but in the exit polls Tuesday, 25 percent of the voters supported gay marriage and 35 percent of voters supported civil unions. There is a big middle on gay rights issues, as there is on most social issues." On the marriage amendment, Mark Steyn does the best job of explaining why, despite a tolerance for civil unions, such an amendment might pass, "They're not going to have marriage redefined by four Massachusetts judges and a couple of activist mayors. That doesn't make them Bush theo-zombies marching in lockstep to the gay lynching, just freeborn citizens asserting their right to dissent from today's established church - the stifling coercive theology of political correctness enforced by a secular episcopate." There is a strong dislike of the smugness and condescension of the Left, which I share, among the American public. But a rebellion against one orthodoxy is not the embrace of another. Many Americans, myself included, uphold traditional values like honesty and hard work without necessarily being religious zealots.

The question, "What constitutes a human life?" is central to the question of whether abortion should be legal. Either a fetus is a person or it is not. If a fetus is a person, its very life has no business being left up to individual states. If a fetus is not a person, then a woman's ability to plan when she has children should not be abridged by the states.

I deliberately leave aside where I stand on the question of whether a fetus is a person, because no matter what, a government that buys Limbaugh's argument will end up trampling someone's rights.

-- CAV