by Ken Emanuelson
Next time you see your favorite pro-choicer, bring up the subject of abortion and time how long it takes him to use the words "a woman's body," "privacy," or "choice." This is America. We believe in these sorts of things, don't we? I know I'm damn fond of the first one. The other two are pretty cool, too, aren't they? Aren't these the things we should be for? Isn't that what America is all about - freedom, privacy, and unrestrained female bodies? Sure it is; but abortion, like everything else in the world, just isn't that simple. No single factor trumps every other, in every case. We don't let mama leave her rugrats home alone while she runs off to Vegas for two weeks, now do we? Why not? If we get involved, aren't we trampling on her freedom? Isn't that her choice? Isn't it her right to do with her body as she pleases? In a word, "no" - mama's rights are limited by her responsibility to take care of her little spawn. Every right is limited by corresponding responsibilities. We accept this argument when her kid is one month old. Does the argument hold if the kid is still in the womb?
Are fetuses people? Do unborn children have a right to life? Beats the hell out of me. Quite frankly, I just don't know. Don't get me wrong, folks - this ain't out of apathy. I've thought about this abortion thing long and hard, and I really don't think there's a "right" answer. If you tell me you know the right answer, I'll challenge you to prove it to me and I'm sure you'll give it your best shot. I've learned from experience that after a few hours, the net result of all this will be that I'll require stitches.
I don't know the answer. You don't know the answer. God might know the answer, but he ain't talking. I'm not going to waste precious ink and the limited space I have here trying to explain to you how you don't know the answer. Just trust me. Really. Yeah, I know what you're thinking: "Another self-important amoral nihilist-deconstructionist armchair philosopher telling us there's no objective right and wrong, no truth, no real knowledge, ya-da, ya-da, ya-da." That ain't me. There may be an objective right and wrong answer to the question of whether an unborn child should be a "person" in the legal sense. I don't know. You don't know. No one knows, not Andrea Dworkin, nor the Pope, nor Gloria Steinem, nor Dear Abby, nor Beyondo, nor the Supreme Court.
Unfortunately, on this, as with most of the rest of the big questions of life, the universe, and everything, the nation's highest court PRETENDS to know the right answer, like William Rehnquist has this huge, secret book stashed in the closet, titled "EVERYTHING YOU EVER WANTED TO KNOW ABOUT LIFE, THE UNIVERSE, AND EVERYTHING, BUT WERE AFRAID TO ASK." (For the record, there's a great science fiction book by Douglas Adams titled "Life, the Universe, and Everything," but unless the court finds itself adjudicating a dispute involving time-traveling nightclubs or triple-breasted space whores, I doubt it'd be of much help.)
Maybe the justices have a special unabridged copy of 'Dianetics' by L. Ron Hubbard. Is homosexual sodomy a constitutional right? p.1265. Is naked lap-dancing protected by the First Amendment? p.874. Maybe they use a ouija board: "Okay, we're getting an answer, here, looks like 'L,' yeah, okay, 'O,' 'N,' 'G,' good, good, 'D,' 'O,' 'N,' . . . dammit, Clarence, gimme that pointer!!!" Maybe they flip a coin, or use a Magic Eight Ball, or they call the Psychic Friends Network. Who the hell knows? All we do know is that the majority is, without fail, thoroughly convinced that whatever nonsense they've just conjured up is fresh from the lips of God Almighty. Whatever the nine old sages come up with, the rest of us--all 280 million of us--have to live with it, like it or not. This is what's known as "constitutional democracy" (Greek for "rule by nine old lawyers in robes.")
In Roe v. Wade, the landmark case on the legal status of the unborn, Justice Blackmun, writing for the majority, explained the difficulty of the court's position: "When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus [as to when life begins,] the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer." Of course, the court turned around a few paragraphs later and not only speculated, but conclusively decided, the question of 'when life begins' for the purposes of law. The court decided conclusively that "the word 'person,' as used in [the Constitution] does not include the unborn. . . . the unborn have never been recognized in the law as persons in the whole sense." Well, there you have it! So much for not speculating. Life, in the legal sense, begins at birth.
Blackmun's argument was as follows: (1) in the past, some legal systems outlawed abortion and some didn't; therefore, since some legal systems didn't, (2) this means that there has been no universally recognized right to life prior to birth, and (3) who are WE to create one from thin air? If this makes sense to you, you have a bright future as a constitutional scholar. My more logical readers will realize that Blackmun was answering a question that really wasn't asked, i.e.: is the government REQUIRED to protect unborn children? He asked the question and found (and I think properly) in the negative. I don't think there's any reasonable case to be made that the Constitution, as drafted, was intended to mandate anti-abortion laws. But again, that question wasn't presented. The question that Blackmun and his colleagues were called upon to answer was: CAN a state government bestow rights upon unborn children?
It's a well-accepted principle of constitutional law that a state can protect individual rights more strongly than the U.S. Constitution. In Roe, the State of Texas wasn't asking the court to CREATE a right to life for unborn children; they were only asking the court not to ABOLISH the rights the legislature had created. As the highest court of the State of New York had explained one year before, "The Constitution does not confer or require legal personality for the unborn; the Legislature may, or it may do something less, and provide some protection far short of conferring legal personality. . . . It is human, if only because it may not be characterized as not human, and it is unquestionably alive." (Byrn v. New York City Health & Hosps. Corp., 1972)
The question 'who's entitled to rights?' has come before the Supreme Court on more than one occasion. Justice John Marshall, in deciding whether American Indians had any rights, explained that "they are not citizens in the ordinary sense of that term, since they are destitute of the most essential rights which belong to that character. They are of that class who are said by jurists not to be citizens, but perpetual inhabitants with diminutive rights. The statutes of Virginia, and of all the other colonies, and of the United States, treat them as an inferior race of people, without the privileges of citizens, and under the perpetual protection and pupilage of the government." (Johnson v. M'Intosh)
Later, in Dred Scott v. Sanford, Justice Roger Taney, discussing whether free black Americans had any rights under the Constitution, explained that "they are not included, and were not intended to be included, under the word 'citizens' in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them."
Less than sixty years ago, Walter Buch, the Supreme Judge of the Nazi Party of Germany, declared that "[t]he National Socialist has recognized [that] the Jew is not a human being." He was echoing the sentiment of Adolf Hitler, who had earlier declared: "The Jews are undoubtedly a race, but not human." In so doing, Hitler was laying the groundwork for the "final solution," first social and legal--and then physical--death for millions of European Jews. Killing human beings is wrong; killing non-humans and non-persons is not. Were John Marshall and Roger Taney wrong to decide that Indians and free black men like Dred Scott had no rights?
Were Hitler and Judge Buch right about the Jews? Was Harry Blackmun correct to decide that Baby Roe could have no rights? Luckily for her, Baby Roe was born before Justice Blackmun got his decision finished. But what about the 40 million unborn children that haven't been so lucky? I don't know whether Baby Roe deserved to live, but I do know that Harry Blackmun doesn't know either. The difference is that he's willing to play God with his opinions, and I'm not.
There's no consensus among the states, in the general populace or in the academy, as to who's entitled to legal protection and who's not. There are only two ways to settle a dispute like this - break out the guns or head to the polling booths. Fight it out tooth and nail, and let the chips fall where they may. When the court, in its infinite wisdom, takes it upon itself to solve the world's problems from atop the ivory tower, it short-circuits the vigorous public debate vital to peaceful resolution of a society's tough questions. Who is Harry Blackmun to decide the issue for us? He's not a God, and he's not a seer. He's only a lawyer, and only a man, and--in my humble opinion--not a particularly stellar example of either.