I remember an incident a few years ago when I was dining with some friends. I announced at the table that I felt that Roe vs. Wade should be overturned. One of my friends had a look of dismay about her (especially since I was a card-carrying member of the ACLU) and immediately started to attack that assertion. The incident was a bit amusing, but it also illustrates a certain lack of understanding about the issue. Unfortunately, I never got a chance to fully defend and explain my position, as we were close to finishing dinner and leaving, and the bustle of the college dining hall did not provide an ideal environment for such a discussion, so I let it slide.
The Alito hearings last week has prompted me to revisit this issue, and I think that I should lay out in detail what I meant when I said that Roe vs. Wade should be overturned and also elaborate on why I feel that overturning Roe vs. Wade would be good for the country and for abortion itself.
A little background
Years ago, when I was still in high school, I was an unquestioning supporter of abortion. I believed very firmly that it is not the government's place to regulate what people do medically. Today, I still hold the view that government should not meddle with medical affairs, and I applaud the recent Supreme Court decision in favor of assisted suicide. So why would I advocate an overturn of Roe vs. Wade? As an unwavering supporter of abortion in high school, I tuned out most of what the pro-life people threw at me. It was easy to dismiss them as irrational and being on the fringe, but that did not quite fit, as there were pro-lifers who were rational people and who I respected. This intrigued me, so I tuned in a little and it quickly became clear why the entire abortion debate is so intractable...
The trump card
For the sake of argument, let us say that an embryo/fetus is alive and is a legal person in the eyes of the law. If so, then, like everyone else living under our system of law, this entity is entitled to the protection of law. The problem with the abortion debate is that, for the most part, the pro-choice side does not seem to grasp what exactly this assertion means. I was discussing the Alito hearings with Carl last week, and he said that people who do not believe in abortion should just avoid having one and let everyone else decide for themselves. This is a perfect illustration of what I mean by the failure of most abortion supporters to grasp the full implications of the assertion made at the start of this paragraph. If abortion is labeled as murder, then it does not make much sense to tell people to decide for themselves if they should have one or not. A serial killer cannot claim that people who believe in killing people should have the right to go about doing so. I have heard many abortion supporters say that pro-lifers should just go about minding their own business, but if a serial killer hits a town, do the people of that town instruct the police to ignore it and to mind their own business? The pro-choice claim that a woman holds the rights to her own body is somewhat more convincing, but it, too, runs into problems. For example, parents hold the rights to their own property and resources. Yet, if they withhold those resources by choice from their child such that it results in the child dying, they would be charged with criminal negligence. In this particular example, you have the conflict of two rights: the right to control your own property and resources and the right of a person to not be deprived of life, and most people would agree that the latter trumps the former. Likewise, I think that many pro-choice advocates would agree that the right to bodily sovereignty trumps is trumped by the right to the life of a born child (assuming there are no health risks at play that could potentially jeopardize life, in which case it becomes an issue of right to life vs. right to life).
Peeling back the onion: the real issue at stake
In reality, while a large number of people are comfortable with saying "mind your own business" when it comes to the issue of abortion, there are very few who would say that if it was a serial killer, even though both are classified as "murder". The discrepancy is that while virtually everyone would agree that a grown person killing another grown person without provocation (i.e., not in self-defense) is murder, many people do not believe that killing an embryo is murder (hence my emphasis on "born child" in my final example), bringing us to the first sentence of my previous paragraph, "For the sake of argument..." The whole discourse about murder is hinged on the assertion that an embryo should be granted legal status as a person. Ultimately, this is a question of when life begins. Nothing else matters. Arguments about privacy, about minding one's own business, about bodily sovereignty, etc. are all irrelevant and empty if it is held that the thing in question is a life and thus a legal person and not just a cluster of cells.
Thus, the real issue that needs to be argued is not whether people should have rights to their own bodies (I believe that they should) or whether people should have a right to privacy (I believe that they should) or whether people should mind their own business and leave others alone (I believe that they should), but instead, the real issue is where do we draw the line between life and non-life, because all other issues are secondary if murder is involved.
Take a look at pro-choice bumper stickers and the signs held at pro-choice rallies. What do they say? For the most part, these signs say things along the lines of "uphold Roe vs. Wade", "hands off my body", "keep abortion legal", etc. Very few actually address the real issue that is at hand. Perhaps it is because pro-choice advocates believe that the issue of when life starts is a personal one and thus they will leave the pro-lifers to believe what they want as long as the pro-lifers leave them alone. But this is not possible because whoever believes that an embryo is a legal person simply cannot leave the issue alone. This also has an effect of creating problems of understanding and dialogue between the two sides. Pro-choice advocates are frustrated with the stubborn inability of the other side to leave the issue alone, and pro-life advocates are frustrated with the other side's inability to grasp the heart of the issue (and the subsequent inability to appreciate the pro-life perspective).
It is thus my belief that the first step to resolving the abortion controversy is for the pro-choice movement to open its eyes, see what this issue is really about, and to engage the debate over this very narrow issue of where the line should be drawn between life and non-life--or to put it another way, how we should define "life" in our society.
Roe vs. Wade and the judicial entanglement
The issue of how we should define "life" in our society is a political and social issue. It is not a judicial one. How is the legal definition of "life" a constitutional issue? When the Supreme Court makes rulings that clarify legal definitions, they do so in accordance to the spirit and intent (or their interpretation thereof) of the law. But on what basis should the Court make such a ruling about what a life is?
If Roe vs. Wade is overturned, then it will free the issue of abortion from the judiciary and send it back into the political realm so that the people can decide on it; the Court is not the ideal place for political battles. Furthermore, it would be the first step in undoing the damage that Roe vs. Wade has done to the judiciary.
Damage to the judiciary? Abortion has become such a hot-button issue that when the Supreme Court is mentioned, many people will think about abortion. Just look at the Alito hearings. Despite the many issues that come up before the Court, from issues of federalism to issues of legislative and executive power, the single issue that received more time and attention at the hearings than any other was abortion. I would imagine that there are many Americans who have made up their minds about Alito based primarily on abortion. The extraordinary amount of time devoted to pressing the abortion issue during the Alito confirmation hearings was frightening. To be sure, other important issues such as executive power were aired as well, but for one single issue (and one that probably will not directly affect the country as a whole in the long run--abortion simply does not carry the same kind of substantive weight like the colorful spectrum of various federalism issues) to receive what seemed to be at least a quarter of the time is remarkable.
The political cost of entanglement
While I do not think that abortion is substantial enough to change the country directly, it has become capable of affecting the country very substantially indirectly through its debate. There are Supreme Court nominees who are put onto the Court partly because of what they feel about abortion (if abortion was not an issue, do you think that Miers would have been nominated?). We now have confirmation hearings that sacrifice time that could have been used for substantial issues for a grilling about abortions (do you think that Alito would have the kind of support that he has if abortion was not such a major issue?). We now have people who would otherwise be Democrats voting Republican simply because of abortion (and thus voting for other policies that they otherwise would not have supported). There are people who support Bush primarily because of abortion (would he have been elected if abortion was never an issue?). The research that I did for my IB essay about the religious right as a political bloc in the United States reveals that galvanizing people around a few emotional issues such as abortion is one of their major sources of power and appeal.
I feel that the entanglement of abortion in our political system has been extremely harmful. It has diverted our attention from important issues and it has also served as a vehicle upon which other unrelated issues may ride (e.g., if someone who opposes war but who feels strongly about abortion voted for Bush). In the judiciary, it has eroded the precious political insulation that protects the judicial branch. There was a time when justices were selected for their qualifications and not for how they would vote one or two issues, and while there are many Supreme Court decisions have contributed to this erosion, abortion has certainly contributed more than its fair share in recent years.
The ideal solution
Overturning Roe vs. Wade would be a step in the right direction. By repudiating that decision and throwing the issue back into the political arena, it will free the Court from the issue (as long as it does not issue a judgment that affirms the exact opposite of Roe vs. Wade).
It is also important to divorce the issue from the standard political process. Ideally, the issue of how "life" should be defined should be presented as some sort of referendum to the population at large, which would free politicians and lawmakers from being associated with the issue. I believe that such decisions made directly by the people would also be more acceptable, as they can no longer blame biased courts or irresponsible lawmakers. This kind of clarity in definition would also settle other issues such as stem cell research.
Finally, I believe that a decision such as this should be made at the State level. There is no reason for the federal government to be involved, and because how people view the definition of life is largely cultural, it is a perfect example of something that should be left to the States.
It is my personal belief that life begins when the mind is capable of self-awareness, which would probably put it some time before birth, but past the earlier stages. It is my hope that if (and that is a big if) this debate finally settles down and zeros in on this key issue, that people would draw the line at somewhere around that point. The pro-choice movement has been complacent and relatively dormant for the past few decades thanks to Roe vs. Wade (studies suggest that pro-choice people outnumber pro-life people, so I imagine that their lower profile is due to silence), and an overturn would probably restart the debate in earnest, which is something that I think would be healthy for the country and which I would look forward to. In the end, if a decision is made by the people and not be the Court or by politicians, I would be happy to live with that decision, regardless of what it may be.
Does anyone else find it ironic that liberals who clamour for animal rights and who push for certain legal rights to be extended to them are also the ones who oppose the extension of legal rights to embryos? I always found that to be a bit funny. ;)
This entry was edited on 2006/01/19 at 21:54:23 GMT -0500.