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.


The Supreme Courtís 1973 decision in Roe v. Wade, legalizing any abortion before "viability", was refined by its ruling last year in Stenberg v. Carhart, finding against state bans on "partial birth abortion". Both landmark cases were thoroughly supported by legal precedent and based on the highest Constitutional principles. Although they donít go far enough, they do preserve -- to near perfection -- the natural right of every woman to control her own body and pursue happiness without state interference.

The primary fault of the Roe decision was that it failed to apply its legal finding to its remedy. In the majority opinion, Justice Blackmun concludes that the unborn "have never been recognized in the law as persons", but then declined to apply that precedent to the case at hand. Leaving this fundamental issue unsettled effectively preserved a stateís claim to a "compelling interest" in protecting "prenatal life" (conceded in the badly flawed Planned Parenthood v. Casey decision of 1992). The Roe decision may have been politically expedient, but it was neither consistent nor courageous.

The "right to abortion" is not listed anywhere in the Constitution, Bill of Rights or subsequent amendments. Nor need it be.

Critics of Roe commonly fault the courtís "judicial activism" in finding proper legal claims under the "penumbra" of the Constitution. They assert that the finding is equivalent to the rulings of FDRís packed court, finding government rights and powers that are not among those enumerated in the Constitution. In fact, one court's position is the inverse of the other.

The Roe court upholds the broad extension of individual rights in the Constitution, while the rulings of FDRís 1930 court sanctioned the expansion of government powers beyond the Constitution. Every libertarian should applaud the former and condemn the latter.

"All men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity." -- George Mason

Opponents of the Roe decision enjoy scoffing at a word that isnít in common usage. "Penumbra" simply means an "overshadowing" principle. For example, the word "person" is used everywhere in the Constitution to refer to a born person, but never to a fetus. One can therefore infer, even if it isnít explicitly stated, that no "unborn humans" have rights to free speech, to bear arms, or to due process. Reading it any other way simply makes no sense. However, a woman, being certainly a person, has an absolute right to her life, liberty and pursuit of happiness.

Note that "pursuit of happiness" is not a right expressed anywhere in the Constitution, but it certainly is explicit in its precursor, the Declaration of Independence. This original document, and all the other contemporaneous writings of the Founding Fathers, are part and parcel of the "penumbra" of the Constitution. The Bill of Rights includes an unqualified extension of individual rights to ensure that:

"The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." -- Ninth Amendment

Among those are the rights to pursue happiness, enjoy privacy, protect personal health and even dispose of undesirable burdens. It doesn't matter how amused or interested any state government might be in violating those rights, they are logical and direct corollaries of the rights explicitly described in the Constitution.

The founding fathers were leery of itemizing natural rights for fear that a list would be interpreted as a maximum exposition, rather than an acknowledgment of the most evident and necessary rights. The Tenth Amendment reserves any additional powers to the states or to the people, but those are powers to enforce individual rights, not to infringe them with impunity.

There is no such thing as "state rights".

Neither the Constitution, nor libertarian principles, grant any state any rights. States are only granted powers, with the consent of the governed, to protect individual rights. Those who dislike the Roe ruling usually recommend overturning the Supreme Court determination and granting every state the discretion as to whether it will -- or wonít -- protect womenís rights. Such a position is equivalent to granting every state the power to decide whether it will -- or wonít -- ban slavery. We fought a civil war over that issue. "Stateís rights" lost.

Itís regrettable that a civil war was necessary to abolish slavery and it may be preferable to have legislators or even the voters, rather than courts, abolish womb slavery. However, a good and proper court decision is always preferable to foolish and misguided popular laws.

There are many interested "authorities" on the varied wings of the abortion controversy. All of their submissions were considered in the Supreme Courtís Roe ruling. If you can overlook the host of legal citations, the dozen pages of the majority opinion are a clear, readable and fascinating discussion of history, medicine, philosophy and law from Aristotle to modern state legislation. Every conscientious libertarian should read it before finding fault.

The Roe decision takes note of the various religious positions on abortion. The Catholic Church has opposed abortion ever since it became a medical practicality. The papal encyclical Humanae Vitae pleads for respect and compliance of the faithful, but not for legal authority. Other religious organizations have differing biblical and theological teachings on abortion, but none of them implore their faithful to impose their beliefs through law.

The same disparity exists in the medical and legal communities. Since the ancient Hippocratic Oath takes no account of legal issues, only the preservation of life, many physicians find it ethically improper to perform abortions. Biologists, interested mainly in the physical characteristics of homo-sapien anatomy, are happy to suggest a variety of lines for identifying human features during pregnancy. The legal community is practiced in the terminology that supports various legislative viewpoints on the regulation and practice of medical services. Their inconsistency merely reflects the multiple contradictions among state laws.

Elevating "stateís rights" as a legitimate alternative to the Supreme Court ruling is indefensible. As the court observed, the wide disparity among 38 stateís laws was an important motive in applying the provisions of the Fourteenth Amendment, which requires equal treatment and due process. All the states agreed that abortions should not be forbidden in every case and not a single state ventured to define a fetus as a "legal person". Nearly every state made exceptions for pregnancies resulting from rape or incest and those that posed significant health risks to the woman.

The health issues involved in abortion became the grounds for the Supreme Courtís June 2000 Stenberg ruling, which properly elevated the woman's right to make decisions about her own health above any speculative state claims on behalf of the fetus. Justice Sandra Day OíConnor participated in this 6-3 decision, overturning Nebraskaís ban on "partial birth abortion". The primary legal fault of the Nebraska statute was an attempt to ignore the "appropriate medical judgment" of a pregnant woman and her physician.

The decision in favor of Dr. Carhart primarily took Attorney General Stenberg to task for attempting to wiggle out of a legislative oversight: clearly defining the vernacular political phrase "partial birth abortion". Justices Ginsberg and Stevens observed that the vagueness simply served as a "vehicle that legislators have chosen for expressing their hostility" to pre-viability abortion rights.

The court declined to challenge Nebraskaís use of the pernicious phrase describing the fetus as a "living unborn child", instead finding that the description of the medical procedure itself was unconstitutionally vague. In that respect, the court merely postponed the inevitable rewrite of this type of law, which will bring the fundamental issue back to the courtís docket.

At some point, the Supreme Court will be obliged to deal with the fundamental issue of whether there is such a thing as an "unborn child" and whether "potential life" can supersede the obvious rights of a legal person. Granting broad latitude to the womanís "health interest" is inadequate. The court must find that a womanís liberty to pursue her own happiness can never be compromised by the fallacious claims of a non-person. It must forbid, once and for all, any state endorsement of womb slavery.

The only logical alternative is to give every fetus the status of a legal person, and require that abortion be classified is premeditated murder. The only logical position for "pro-lifers" is to advocate capital punishment for any woman who chooses to terminate any pregnancy at any time, including any use of birth control pills which might prevent the implantation of a fertilized embryo. That tiny batch of cells is just as much an "unborn, living, potential human baby" as a fetus. The Fetal Cops will have to keep a close eye on every fertile female!

The implications of this issue extend far beyond abortion, into stem cell research, contraception devices, and even regulations over the course and conduct of romantic relationships. There is virtually no limit to "compelling state interests" when even one womanís liberty can be negotiated into oblivion by state or federal legislatures. The courts must come to the defense of every womanís rights and ban all womb slavery.

William Westmiller

CaRLC Debate Rules & Questions
"Should Abortion be Legal?"
Hudson Pro-Life Argument
Westmiller Pro-Choice Argument
"Should Roe v. Wade be Overturned?"
Hudson Pro-Life Argument
YES: (Pending)
Hudson Pro-Life Rebuttal

Westmiller Rebuttal to YES Argument:

It is not "judicial tyranny" to apply clear constitutional principles to new issues of law. Precedent must begin somewhere and the Supreme Court is obliged to resolve contradictory laws that bear on the individual rights of citizens. It does that in every case it considers and, in the Roe case, found a host of conflicting state laws that only had two things in common:

1. No fetus had ever been granted individual rights;
2. All states refrained from criminal intervention early in pregnancy.

Even in the absence of any other constitutional issues, a clear resolution of the conflicting statutes was both warranted and evident. The majority took the best scientific evidence to update the archaic surmise of "quickening" into a more substantive "viability" standard. In that respect, the Roe ruling was exceedingly judicious, showing a deference to state law, even at the expense of higher legal and constitutional principles.

The most important of these principles is that individual rights are not negotiable, open to compromise, "competition", "balance" or "distribution". No person, no collective, no authority can justly violate the life, liberty or property of any person. Only when we entertain the prospects of granting "rights" to a non-person do we encounter the logical contradictions, fantastic implications and pleas for the oppressive enslavement of real people.

Consider, for a moment, a Supreme Court ruling that the "pro-life" advocates would applaud. "Fetal rights" would not be equal to, but would supersede, every woman's rights: throw out the Equal Protection promised by the 14th Amendment. Enforcement would be impossible without a state "guardianship" of the fetus against even minor distress: throw out the reasonable searches and protection from self-incrimination required by the 5th Amendment. The legal destruction goes on and on, encroaching all the well-established natural rights that persons can justly claim.

The proposition that the Constitution says anything about "fetal rights"; the assertion that there was some established "common law"; the claim that there existed some federal law governing abortion; the concoction of state law consensus on the issue; are all pure fabrication.

The proponents of "fetal rights" might hope to make the case for a constitutional amendment, based on sentiments we all share. Abortion is not a simple amusement. It is a serious and consequential decision for every woman who encounters an unwanted pregnancy. Such difficult decisions are always to be avoided and even legitimate remedies are never easy choices.

We all value the "fruits of the womb" above any other life. We adore and cherish our children, who are no longer "potential people", or "unborn babies", but rather real persons. The best that we could hope for all children is that they would always be delightful bundles of joy, rather than unwanted, neglected and resented burdens imposed on an unwilling mother.

William Westmiller