With the nomination of John “the whitest name ever” Roberts to the Supreme Court, there is much discussion about the landmark Supreme Court decision in Roe v. Wade. The Pro-Life anti-woman forces are salivating at the chance to roll back the right of a woman to determine her own reproductive future and control her own body.
As a strong advocate of personal privacy and individual liberty, I am staunchly pro-choice. It really comes down this: does anyone have the right to tell someone else what they can do with their own body, so long as that someone isn’t harming another?
Religious people think, “Sure! God tells us what to do with our bodies all the time.” Cut the foreskin off your infant’s body, don’t put pork into your body, don’t put tattoos on your body, don’t touch your penis for pleasure!, don’t touch your vagina for pleasure!, don’t touch anyone else’s penis or vagina for pleasure until we say so, and for Godsakes, never, ever touch someone of the same sex for pleasure.
The rest of us rational people realize that having a foreskin, a pork chop, a tattoo, and masturbating aren’t really affecting anyone else and are private decisions each person should make on their own. And if we can get someone else (male or female as you prefer) to consent to touch our naughty bits, all the better. Government’s job is to protect us from each other, not ourselves.
We can completely understand why someone would not want an abortion. It’s not a decision to take lightly. Giving up a chance at maternity is a huge emotional and spiritual burden, and who knows if the woman will ever get that chance again? It’s her body and she’s got to do what she thinks is right. But it is her body and her future that is on the line and personal sovereignty demands that we let her make her own decision.
“Pro-lifers” would say that it is not her decision and would disagree with my position that there is not someone else being harmed in her decision. But since rational people can’t accept the unscientific, irrational idea that a cluster of subdividing cells is equal to the living breathing woman hosting it, we don’t see that there’s anyone else to be harmed. Pregnancy is the process that gives birth to human life; it is not the human life itself.
As I’ve said numerous times before: the “pro-life” position is tantamount to forcing a woman to breed with a gun to her head. In “pro-life” world, any woman who has sex faces the possibility of being imprisoned if she doesn’t want to be a mother.
Imagine that post-Roe world the “pro-life” people are dreaming about. Life begins at conception and the diploid zygote is legally a full human with all the rights and protections as you and I. First off, how will we identify all these microscopic citizens in order to protect them? Often a pregnant woman doesn’t know she’s pregnant for a few weeks. One solution would be mandatory weekly pregnancy tests for all women from age of first menses to date of menopause.
Why would this be necessary? Well, suppose the woman is late for her period and suspects she’s pregnant. She uses one of those home pregnancy tests and confirms her suspicion. She doesn’t want to be pregnant, so she gets ahold of an RU-486 (morning after) pill, or she ingests a foul cocktail of herbs known since ancient times to induce a miscarriage. How would we know about the murder that just took place?
Speaking of miscarriages, sometimes those just happen naturally on their own. How do we know that the pregnant woman didn’t induce the miscarriage herself, either purposefully or through living an unhealthy lifestyle? Every miscarriage will require a homicide investigation to insure that no murder or voluntary manslaughter took place.
Furthermore, how far will we go to protect the little blastocyst-Americans? We already have precedent for charging mothers with child neglect and abuse when their babies are born drug-addicted. Now that a fetus gets full legal protection like a living child, we don’t have to wait until it is born to start charing mothers with abuse or neglect. Will pregnant women spotted in a tavern be subject to prosecution? How do we insure that the mothers are taking their proper nutrition and exercise? Even the accidental miscarriages could be the result of poor pre-natal care.
Maybe the safest bet is to commit all the women who test positive on their government-mandated weekly pregnancy tests to a special government maternity facility, so we can be sure the fetal citizens have the best shot at life, liberty, and the pursuit of happiness.
Also, we’ll have to do away with the fertility clinics. All of those fertilized eggs are fully protected citizens; we can’t just store them in freezers and throw the extras away, that’s child abuse and murder. You can forget about any embryonic stem-cell research, too.
The underpinnings of the judicial decision behind Roe v. Wade have to do with one basic concept: Does the Constitution allow for an unenumerated right to personal privacy?
The Constitution enumerates, or “spells out”, many rights that we citizens possess. We have a right to free speech, bear arms, worship, assemble, and so on. However, there is no way the Founding Fathers could have enumerated every single right that the people possess — the right to bathe, breathe, eat, read, choose whom to love, etc. — or the Constitution would be as thick as… well, as thick as a Bible.
The Founders were keenly aware of this limitation and wanted to insure that zealous governments of the future couldn’t trample on basic human rights just because they weren’t specifically mentioned in the Constitution. They wrote the Ninth Amendment to the Constitution to address this possibility:
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” As in basic human rights, as in a right retained by the people, even though the Constitution doesn’t specifically enumerate it.
The Declaration of Independence says “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” Among these, as in “there are many rights that the Creator gives men, these three are just a few of them.”
If privacy and self-sovereignty are not unalienable rights, I don’t know what is.
Furthermore, we can see, as the five justices that decided Roe did, that the Founders did indeed think highly of personal privacy and self-sovereignty. They gave us the First Amendment protecting rights to religion, speech, press, and assembly — matters of private belief and personal self-determination. The Third Amendment prevents the government from intruding on the privacy of our homes. In the Fourth Amendment, they made sure that our persons, houses, papers, and effects could be kept private and secure from intrusion without just cause. In the Fifth Amendment, our privacy is protected by forbidding compulsory testimony against ourselves and our self-sovereignty is protected by requiring due process of law to restrict our liberty. The Fourteenth Amendment protects us from individual states trying to restrict our liberty and requires equal protection for all.
Or we could just try to imagine the mindset of the Founding Fathers, fighting a war of independence against an empire. They fought to overcome the oppression of a king who had denied them self-governance, taxed them without representation, and used force to bend them to his will. They don’t seem like the kind of men who would want a government dictating which private medical procedures a woman and her doctor could choose.
Another phrase you’ll hear regarding John “no, innkeeper, that is my real name” Roberts is “strict construction”. “Pro-lifers” are agog over the idea of “strict construction”. Justice Scalia likes this one and I understand it to mean: the Constitution means exactly and only what was written down in the context of the 18th Century and can never evolve through time with any new understanding or science. I suppose when you believe that humans didn’t evolve, there’s no reason to think political constructs should evolve, either. And to a reactionary bluenose shocked by dirty words, hip-hugger jeans, boys kissing, and rap videos, the 18th Century must look very inviting.
“Strict Construction” assumes that we haven’t learned anything in 229 years. Do you think the Founders would agree with Scalia? I don’t. They put so much work into creating an Amendment process that they knew they wouldn’t have all the answers for every situation that would crop up in the future. They were also careful about their wording, like the “among these” I noted above, or the entire 9th Amendment for that matter. And they were very suspicious about any possibility of their government becoming tyrannical and abrogating the rights of the people.
However, we also must remember that as wise and beneficent as our Founders were, the Constitution was written by rich white landowning slaveowners in a time when non-landowners were 2nd-class citizens, women were 3rd-class citizens, gays were invisible, blacks were enslaved, and genocide and biological warfare were perpetrated against indigenous Americans. Their economies were agrarian, their scientific knowledge was limited, and bleedings and amputations were the height of their medical practice. To say that their 18th Century point-of-view was perfect and inerrant and all that we would need to interpret our 21st Century lives seems foolish at best and incredibly self-serving at worst.
Keep in mind that the “strict construction” Scalia and perhaps Roberts endorse doesn’t just touch on the abortion issue. Other cases of personal sexual behavior have their roots in the idea of an unenumerated right to privacy.
Griswold v. Connecticut determined that the government could not restrict married couples from using birth control, based on the unenumerated right to privacy found in the 1st, 3rd, 4th, & 9th Amendments.
Later, Eisenstadt v. Baird extended the right to birth control to unmarried people, wherein Justice Brennan wrote “If the right of privacy means anything it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision to whether to bear or beget a child.”
And most recently, Lawrence v. Texas held that personal sexual intimacy could not be criminalized between same-sex couples. In the “strict construction” world, none of these decisions would be possible, and nobody would have the right to birth control or to be gay.
So there you have it, a few hundred words describing why I am pro-choice. But I can actually make the argument and a “pro-life” rebuttal with a sentence and a bumper sticker:
The rights of the existing human trump the potentiality of the future human.
–and–
Don’t like abortion? Don’t have one.
“Pro-Life?” Let’s call it what it is: “pro-fetal-life”. There doesn’t seem to be a lot of “pro” for the lives that are poor, enlisted, sick, HIV+, retired, elderly, imprisoned, Arab, or African.
