The Right to an Abortion

I don’t recall which Republican talking heads (many) have argued that the right to an abortion is not mentioned in the Constitution.  It seems like a compelling argument, but it is really a very poor argument against the right to an abortion, and here is why.

The U.S. Constitution consists of two main parts, plus the accumulated decisions of the Supreme Court.  The first part is the Constitution proper, and the second part is the 27 amendments to the Constitution proper.

The U.S. Constitution proper consists of seven “Articles” and roughly 4300 words.

• Article I, the Legislative branch, the Congress, contains 10 sections and 2268 words.
• Article II, the Executive branch, the President, contains 4 sections and 1021 words.
• Article III, the Judicial branch, the Supreme Court, contains 3 sections and 373 words.

While the three branches were to be construed as coequal, the members of the Constitutional Convention clearly intended that the legislative branch, the Congress, had the most power, as is demonstrated by Article I’s primacy, its relative length (half of the entire document and twice the size of the Executive’s Article II) and its level to detail.

• Article IV, States Rights, contains 4 sections and 326 words.
• Article V, Amendment, contains 1 section and 143 words.
• Article VI, random stuff, contains 1 section and 154 words.
• Article VII, Ratification, contains 1 section and 24 words.

The U.S. Constitution proper lays out the founders’ vision of the powers of the new federal government.  There is no mention of individual rights anywhere in the Constitution proper.  A discussion of an individual right would clearly not belong in a catalogue of the new government’s powers.

However, in order to convince several states to ratify the new Constitution, the framers had to make a deal: to include a list of clearly enumerated individual rights.  This list of rights is the first ten amendments to the Constitution proper, our “Bill of Rights.”  All the so-called “rights” in the Bill of Rights took the form of ‘Congress shall NOT regulate the people for this reason or that.’  So, Pro-Life forces argue that there is no amendment that reads:

Congress shall make no law respecting the right of a woman to have an abortion.

This is quite true, there is no such amendment to our Constitution.  However, Amendment IX of the Bill of Rights declares:

The enumeration in the Constitution, of certain rights (the first eight amendments of the Bill of Rights), shall not be construed to deny or disparage others retained by the people.

In other words, there are millions of “rights” of the people that are not specifically “enumerated” in the Constitution.  Perhaps abortion is one of them.

With a single exception – Amendment XVIII, Prohibition – the remaining 17 amendments to the U.S. Constitution added rights and privileges to the people.  No amendment, except for Prohibition, ever subtracted any rights from the people.

“Well, what about the rights of the unborn?”  A careful re-read of the amendments to the Constitution would suggest that persons with “rights” are all adults.  Do children have freedom of religion?  Freedom of the press?  Freedom against self-incrimination?  Freedom to petition the government for a redress of grievances?  If children have no Constitutional “rights,” surely the unborn have even fewer.

“But surely not even a parent has the right to kill his own child.”  But is a fetus, an embryo, a zygote, a blastocyst – a child?  Far from every person, far from even most Americans, believes that a “person” exists from the moment of conception.  And even fewer want to imprison a woman for choosing to abort her own … child.

One thing ought to be clear: there is no changing the mind of a person who believes that a soul is born at the moment of conception.  It is not universally agreed upon, but it is a firm religious belief.  On the other hand, the crime of murder is universally agreed to be a capital crime, a top-of-the-line crime.  Whether an abortion is murder is open to argument.

One last thing: many of our most cherished beliefs were given to us as children, especially religious beliefs.  For many if not most of us, these beliefs are never questioned and last a lifetime.  We need to think more about what we were taught as children, when we had no right of independent belief.

For those of you who live in Red states where abortion is severely limited, if not outlawed entirely, I urge you to read my 2014 piece, Texas After Roe v. Wade, and consider if you would like that to be your state's future.

Addendum: Monday, 06/12/2023

As abortion is always a woman's decision, I believe that men ought to keep quiet about it, or at least not be permitted to legislate about abortion.  But, being a writer, I will have my say, even if I have no desire to make a law about it one way or another, so here goes.

First, when I say that abortion is always a woman's decision, I mean to suggest that when a man and a woman have a disagreement about aborting her pregnancy, the only way that a man's decision will prevail is if he forces his will upon the woman, by some threat or another.  An illegal threat.  If the woman caves in and chooses not to take legal action against the man's threat, that renders it her choice still.  Without a threat of some kind, an illegal threat, when a man and woman disagree about an abortion, it is the ultimately the woman's choice.  

So, if there must be laws governing abortion, I would want a) to prohibit all male legislators from voting on an issue that only affects women, and b) to prohibit all men from participating in any referendum on the issue.  To be candid, I generally do not like any legislation that tells folks, or a subset of folks, what they can and cannot do (the exceptions should be obvious).

With that out of the way, I must say that I am uncomfortable about a woman using abortion as a form of routine birth control, especially if she expects her insurance or the government to pay for it (I consider the morning after pill a form of birth control, not an abortion, as most cases of unprotected sex do not result in a pregnancy, and no one knows whether a sexual act will result in a pregnancy within 24 or 48 or 96 hours).  I do not like the idea of insurance (private or government) covering birth control – for the woman in the form of daily pills, a diaphragm or an IUD and for the man in the form of condoms – as they are affordable and not a serious financial burden on most adults.  However, current law insures birth control for women and men and, as it will in a small way slow down our birth rate, I am OK having taxpayers pay for that end. 

But I am uncomfortable about a woman using abortion as a form of routine birth control, so here's my 2c worth.  Insurance (private or government provided) should pay for the first discretionary abortion, it should pay for half of the second discretionary abortion, and it should not pay at all for further discretionary abortions.  As a matter of fact, I would not be averse to fining or sterilizing or even imprisoning a woman who elects to have more than five (a negotiable number) discretionary abortions.  What do I mean by discretionary?  An abortion is discretionary when the pregnancy is not the result of rape.  When is a pregnancy the result of rape?  When a woman makes a formal complaint with the authorities against the rapist (even if she does not know the identity of the rapist, at least she must co-operate with the police).

Hey, I am a man and I have no (and want no) legal power to make my ideas law, so just speaking my mind.  But I will surely piss off those rigid SOBs who want to control women as they have for millennia, and the women who "love" them and do as they are told.  As for my progressive friends, I will probably piss them off, too.  I guess I'm just an equal opportunity pisser.

Amen!