I came across another blog here at blogspot in which the author asked individuals to provide justifications for their positions on abortion. I took him up on that challenge. Below is an edited version of what I wrote. I'll have some more comments after the quote. You can find the originals here.
First, it is important to understand that rights are not intrinsic in anything. It is certainly possible to have a democratic government that doesn't recognize any broad conception of rights. Take a look at ancient Athens.While we live in a democracy that recognizes rights, there are no such things as natural rights.
“Rights" are a shorthand for talking about legal positions and legal enforceability. When someone says they have a right to free speech that means the government is legally limited in the actions it may take regarding an individual’s speech. When someone says they have a right to life, that means that they cannot be deprived of their life without due process of law--and the only process sufficient is a murder (or treason) trial conducted under specific fair procedural requirements.
Those are just examples, but the point is that natural rights don't exist. Rights are dependent on the existence of a government willing to enforce them.
Second, abortion presents a conflict of rights. On one hand, we have a woman who has a constitutionally protected right to liberty in both the 5th and the 14th Amendments. On the other hand, we have a fertilized egg, an embryo, a fetus, or what may be a human life at any other stage of gestational development. Our government, through the Constitution was instituted to protect both liberty and life. In order to deprive someone of liberty it must be shown that government has a compelling interest in the goal for which it is depriving a person of liberty.
While some people may want the courts to decide when in course of human development a fetus becomes a person, that is not what is at issue in Roe and the Supreme Court’s other abortion decisions. The question is when does the state have a compelling interest in protecting the life of a fetus. Can we honestly say that government has a compelling interest at the time of conception?
I do not see any rational way to get to that point. A zygote or even a fertilized egg may be alive, though like Justice Blackmun I am unable to make that determination when so many people disagree. Even if it is 'alive,' how does that simple fact demand that it is protected in the same way a 5 year old child, or a 30 year old man, or a 70 year old woman is protected?
It is not even terribly likely that the fertilized egg will make it on its own. A lot of them just don't survive. Given the uncertainty, is it really true that the state has a compelling interest in ensuring that it remains alive?
Certainly, the life of a fetus becomes a compelling concern for the state at some point in the development of the child. I personally cannot imagine a rational distinction between a newborn infant and the same child still in the womb five minutes earlier. That is a matter of chance at most. The challenge is to determine at what point between these two extremes the government may begin to regulate abortion in order to protect the life of the fetus.
In the early stages of a pregnancy, a woman's liberty is a actual compelling interest while the life of a fetus or a zygote is only potential until it is recognizably similar to all those persons that we actually protect. This liberty interest is not small.
Consider simply that the statute at issue in Roe was designed to put the full force of the state's criminal law to work against doctors who performed abortions and women who had them. The government was not just going to tell them to stop; it was going to take them out of their houses and communities and place them in prisons. There is no clearer deprivation of liberty than this.
There is a second aspect of liberty at issue in the abortion debate—possibly a more serious problem. Banning abortion in effect uses the full power of the state to force women to undergo the strain and labor of pregnancy, of childbirth, and forces them to spend time, money, and effort until the child is fully grown and can fend for himself. This isn’t to be underestimated.
The liberty concerns here are enormous. The concern for the life of a fetus cannot immediately match the liberty concern at conception. Over time, as it develops into infant, the government’s concern for its life also develops. Thus, the point is not that a woman’s liberty in her pregnancy is unlimited—it can’t be—but neither can the state forcibly deprive her of that liberty until the concern for the child is compelling.
That is the correct balance. Early in a pregnancy, when there is nothing more than a fertilized egg, the state shouldn’t be able to regulate women from having abortions.
The only thing I have to add is that my position is almost exclusively derived from arguments made by Justice Blackmun in Roe v. Wade. It is worth a read, and everyone should really think through it to decide where, if at all, it was wrongly decided. That is why this post is entitled "Rethinking Abortion." It's rethinking it, but only in order to bring to the fore the arguments that already exist.
I personally believe Roe does strike the right balance. Under Roe some abortions are permissible, even for any reason such as emergency contraception. It takes seriously a woman's decision to become pregnant or not--and in doing so takes seriously the scope of what is at stake in a pregnancy. A woman cannot simply have a child. Pregnancy takes time and effort and money and support. If a woman thinks she cannot support a child, or cannot bear the costs and sacrifices of a pregnancy, then it may be the best decision for her not to have the child.
Let me finish by noting the conflict between that concern and parental notification statutes. Here in Texas, a minor must either notify her parents of her intent to have an abortion or, under very strict circumstances, can ask the courts to grant permission without parental notification. The judicial by-pass can only be trigger if the girl demonstrates that she is sufficiently mature and has considered all her choices.
On the face of it, that sounds like it might be acceptable. Unfortunately, a lot of these girls are 13 or 14 years old. There is no way that they can possibly be mature enough, especially in Texas. In one case here, a dissenting judge argued that the minor should not be granted a judicial by-pass to the parental notification requirement on the grounds that she was not mature enough to have an abortion. He reasoned that her immaturity was evidenced by her decision not to tell her parents.
If we are serious about the liberty of the woman being restricted by the burdens of pregnancy and child rearing, we must recognize that those burdens are bigger for younger girls. Teenage pregnancies can be so destructive to a girl's life. I don't think we want the government forcing children to have children. Let these girls decide to terminate their pregnancies so that they have the same chances at a normal life as everyone else.
Parental notification statutes should be subject to a higher scrutiny.
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