34 years later, abortion ‘rights’ still spurious

Rachel Criswell’s column in Monday’s News (“Roe anniversary is a chance to reflect,” 1/22) praising the merits of Roe v. Wade on the 34th anniversary of its final decision concisely summarized the accomplishments and goals of the thriving movement in favor of broader reproductive rights for women. On the anniversary of such a controversial political event, however, it is important to remember precisely what made the decision so divisive, and why this rupture still reverberates today.

From reading Criswell’s assessment, one might gather that the decades-long abortion- rights movement has merely been an effort to provide women with “safe health care” and the ability to “make healthy choices by themselves.” Such euphemisms, while technically accurate, deceptively obscure what remains a legitimately contentious issue. Opposition to abortion, now often dismissed as a primitive and fanatical quirk, is a position that can follow a fairly logical thought process. On the one hand, prohibiting a woman from destroying a small, young amalgam of cells in her reproductive system, often called “potential human life,” seems to many like a superfluous constraint. On the other hand, babies that have just been born cannot be aborted; that would be murder. So where do babies obtain the right not be killed, and when? Any answer to that question inevitably leads one to apply it to potential human life: When in the existence of a human being does the right not to be killed begin? In an abortion, then, more than one life seems to be involved in some substantive way. It is thus a gross oversimplification to reduce all issues pertaining to abortion to concerns over a “woman’s reproductive health.”

But in discussions of Roe v. Wade, the ethicality of abortion is almost a secondary concern. What is more pertinent is why abortion is a right guaranteed by federal law. This national imprimatur, after all, was the central objective of Roe v. Wade. Specifically, the Supreme Court averred in 1973 that the right to an abortion exists in the amendments to America’s Constitution. But can this really be so? Rather than boiling down the abortion debate to our support or opposition for the procedure itself, we should investigate why precedent was reversed and individual state laws were denied the ability to decide the legality of abortion.

During and after debate over Roe v. Wade, various legal justifications were provided for its conclusion. Before Roe reached the Supreme Court, a district court cited the Ninth Amendment’s reservation of rights to the people. But this amendment seems to make only one assertion: that the presence of a Bill of Rights in the Constitution cannot be used in law to suggest that certain rights do not exist merely because they are not listed in the Bill of Rights. It does not follow from this, however, that non-enumerated rights cannot be curtailed in any way. The Supreme Court’s 7-2 majority duly abandoned this line of reasoning, instead citing the 14th Amendment, which, among other things, guarantees that states will not deny citizens due process or equal protection of the laws. The Roe court drew on the amendment’s clauses to allege the unwritten “right to privacy,” a debatable proposition that had taken shape generations after the amendment’s crafting.

Even if one were to accept that there exists a right to privacy somewhere in the Constitution, it is unclear that this right would necessarily protect abortion. Indeed, abortion is unlike any other health-care procedure: It invariably affects a second human or human-like party. The issue thus becomes one of balance: Is the destruction of a fetus preferable to the injurious effects of an unwanted pregnancy? Any right to “privacy” would appear to have no relevant application. We are back where we started, with an ethical conundrum over when certain kinds of death are sanctioned, and no evident constitutional jurisdiction over the issue. As Supreme Court Justice Antonin Scalia aptly put it, “Nothing in our Federal Constitution deprives the people … of the right to determine whether the consequences of abortion to the fetus and to society outweigh the burden of an unwanted pregnancy on the mother.”

The basic outline I’ve provided above is certainly not original or innovative: To the contrary, in the last 34 years, these arguments have resurfaced time and time again. But as members of a generation born long after Roe v. Wade had become accepted legal precedent, it is easy for us to forget that the now-lauded ruling was once — and by some, still is — viewed as an unfortunate limitation on the rights of states to define “life” for themselves. Scrutiny of the decision suggests that Roe v. Wade was little more than an attempt by seven Supreme Court justices to formulate a dubious justification to cure what they perceived to be a social ill. Given such a tenuous validation for such an important issue, we should not allow debate to die simply with the passage of time. Though there is something to be said for reproductive rights, there’s something to be said for our Constitution, too.

Dan Bleiberg is a sophomore in Trumbull College.

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