But the right to abortion is constitutionally protected!
First of all, even if that statement were unequivocally true, it would not undermine the pro-life position, since the pro-life position is about what public policy should be, not about what public policy is. The Constitution sanctioned the denial of personhood status to slaves for the first several decades of this country’s existence. This fact served as an argument to amend the Constitution, not as an argument for the moral permissibility of slavery.
Second of all, abortion is nowhere mentioned in the Constitution. In fact, do you know what the supposed right to abortion, which the court found in Roe v. Wade, is based on? It’s the statement that you have a right not to have your house searched by the police without a warrant. Seriously. That’s the closest thing to a right to abortion in the Constitution. The logic was that this statement, along with certain others whose relevance is even murkier, kind of implies1 the existence of a more general right to privacy, and therefore, since abortion is a private decision between a woman and her doctor, abortion is a constitutionally protected right.
Let’s talk about this. Even supposing that the aforementioned passage is referencing a more general right to privacy, one would have to conclude that the only aspect of this ethereal “right to privacy” actually protected by the Constitution is the right not to have your house searched by the police without a warrant—certainly not a right to abortion.
But let’s even suppose that there is an explicit right to privacy in the Constitution. Still, the intellectual leap to a right to abortion is a preposterous stretch unless you assume a priori that an unborn child is not a person. Because, if he is, then using privacy to justify abortion’s legality would allow privacy to justify the legality of literally any action under the sun. If the fetus is a person, then to say that abortion should be legal because it is “just a private decision between a woman and her doctor” is exactly analogous to saying, “Robbing the bank should be legal because it is just a private decision between the thief and his accomplice.”2 Of course, robbing the bank isn’t a private decision because it affects a third, non-consenting party—the people whose money gets stolen. Similarly, if the unborn child is a person, then abortion isn’t a private decision between a woman and her doctor, because the person adversely affected isn’t involved in the decision. So the key question is whether the unborn child is a person.
The ironic thing is that the Court might have mustered some semblance of a sound argument had it proceeded to hold that fetuses are not persons. It would have been wrong, but its reasoning would at least have been halfway respectable. Instead, the Court begged the question. Justice Blackmun wrote that the Court had no way of deciding whether or not an unborn child was a person to be protected by law, and then, in an incredible leap of illogic, declared that an unborn child could not be protected by law—a conclusion warranted only if one assumed a certain answer to the very question on which the Court professed to be agnostic.
The central question, of course, was the personhood of the fetus (the 14th Amendment grants persons an explicit right not to be killed unless convicted of a capital crime). Even Blackmun admitted as much. Let’s suppose for sake of argument that the Court, as it claimed, had no standard for defining the beginning of personhood. The logical response would have been to have left that decision to the voters—the same way that the Court is supposed to allow every other issue on which it is not empowered to decide to be dictated by the democratic process. Rather, in one fell swoop that left legal scholars from across the spectrum of jurisprudence baffled, the court overturned the popularly imposed laws in the vast majority of states because it couldn’t decide whether or not it ought to.3
“Penumbras” and “emanations,” to use the Court’s immortal terminology, is the way of expressing it in legalese. This reasoning was actually laid out in an earlier case, Griswold v. Connecticut (1965), and cited in Roe as the basis for the decision. ↩
Incidentally, Roe v. Wade permitted state regulation of certain late abortions unless the woman’s health required it (where were these details found in the Constitution, which the Court was merely supposed to be interpreting?). However, in a subsequent case (Doe v. Bolten), “health” was defined as just about anything, with the result that today abortion is available on demand throughout all nine months of pregnancy. ↩