Abortion as a Libertarian Issue
"Should Roe v. Wade be Overturned?"

The following is the argument of the pro-choice side
of an on-line debate hosted by the Republican Liberty Caucus.
See the CaRLC info or May 2001 Archive for debate details.


Roe v. Wade must be overturned so that America can once more become "a nation of laws, not of men." Regardless of one’s personal opinion about the merits of legalized abortion, judicial tyranny should be condemned by every libertarian. If judges, particularly life-tenured Supreme Court Justices, are not bound by the Constitution, then our dearest freedoms hang by the weakest thread of judicial whim.

Roe v. Wade was not an ordinary Supreme Court decision by any means. It was not a logical extension of well-established court precedent, nor was it a scholarly interpretation of constitutional law. In fact, the text of the Constitution and the weight of precedent at that time reserved this delicate matter to the states respectively, or to the people. English common law and the laws of all thirteen colonies had treated abortion as a crime, at least after quickening, when pregnancies could be confirmed by rudimentary observation. However, state laws had continued to evolve as they will in a democracy, and many states had fairly broad abortion statutes that sought to balance the competing rights of mothers and children. But when Roe v. Wade came along, democracy and compromise was prohibited; the rights of unborn children were extinguished by judicial fiat. This case was the ultimate example of judicial activism: the majority of the Supreme Court overturned federal law and the laws of every single state, without one scrap of textual support in the United States Constitution. From that moment on, abortion policy would be set only by majority vote of the Supreme Court, with no appeal possible.

"Pro-choice" advocates should take the time to read Justice Byron White’s stinging dissent in Roe v. Wade: "The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally dissentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court."

Just as the Dred Scott decision denied even the citizenship of African Americans and denied them access to the federal courts, the Roe v. Wade decision denied the humanity of unborn children and prevented the courts from considering their interests. Libertarians should naturally wonder who among us might be next to be written out of all Constitutional protection by the Supreme Court. The 5th and 14th Amendments no longer guarantee that no one shall be "deprived of life, liberty, or property, without due process of law." At best, those amendments now only apply to whichever persons the unelected Supreme Court Justices might deem worthy of protection. As with the Dred Scott decision, the consequences of Roe v. Wade have had a lasting and negative impact on our nation.

Those who feel strongly that unborn children have no rights that our society should balance against the mothers’ rights — nor even interests that we should consider before their lives are brutally destroyed — would be better served by an amendment to the United States Constitution that explicitly established the absolute right to an abortion. The problem with rights established by judicial whim alone is that they can be undone by a change of whims or by a change in the composition of the Supreme Court. The permanent legal protection of the right to abortion can only come about by a constitutional amendment. Furthermore, the process of ratifying such an amendment would help the country reach more of a consensus on the issue and this consensus would bring stability to the issue.

It may not be possible to reach a nationwide consensus on the abortion issue in the foreseeable future, but our republic does not require consensus on such issues. Our federal system was designed to deal with such controversial issues by the most reasonable means possible: democracy, exercised at the state and local level. The overturning of Roe v. Wade would allow each state to set its own laws and procedures for abortions, just as they did prior to that disastrous decision. Just as some states exist without the death penalty, gambling, income taxes, property taxes, or the licensing of geologists, some states would certainly ban abortions. Other states would certainly encourage abortions and offer taxpayers’ money to pay for them. With varying laws in fifty states and five territories, Americans could experiment with different solutions to the issues posed by abortion. In each state, democracy would force discussion, education, and compromise on the issue. In the majority of the states, the initiative process would allow ordinary citizens to express themselves and cast meaningful votes on the issue. Instead of supporting political parties and presidential candidates based on the ill-founded hope that they might have some influence over the Supreme Court on this issue, ordinary people could register their opinions directly.

Allowing Americans to vote on the abortion issue directly would produce a revolution in American politics by itself. Millions of Americans who have found themselves slavishly supporting candidates and parties over that single issue would be liberated by the ability to separate that issue from all the other issues that affect our lives. In many states, including California, the initiative process would dramatically reduce the impact of abortion on party politics and it might produce a complete realignment of the voters. By itself, this might not be a principled reason to overturn Roe v. Wade, but it would certainly have a major impact on the advancement of other principles in the long term.

Furthermore, it cannot be denied, and in fact it should be loudly lamented, that Roe v. Wade has lessened respect for the value of human life. Although even abortion proponents do not advocate abortion as a substitute for the use of birth control, the widespread availability of abortion services has discouraged the use of birth control and encouraged irresponsible sexual behavior. This has led indirectly to the epidemic spread of sexually transmitted diseases and the explosion in the ranks of unwed and ill-prepared mothers. Since any pregnant woman can obtain an abortion in states like California, it should not surprise us that so many fathers treat the resulting children as the mother’s problem. If human reproduction is entirely the woman’s prerogative, then fairness and market economics seem to suggest that women should individually bear the full cost of the choices they make individually in this regard. This result does not seem in the best interests of the unborn child, but until Roe v. Wade is overturned, no one is legally bound to consider those interests.

Thomas Hudson

RLC Debate Rules & Questions
"Should Abortion be Legal?"
"Should Roe v. Wade be Overturned?"
Westmiller Pro-Choice Argument
Westmiller Pro-Choice Rebuttal

Hudson Rebuttal to NO Argument: