AND GENERALLY AGREE with St. Ann Coulter, but even she nods upon occasion. (And I’m at considerable risk of embarrassment here, since she’s a lawyer and I’m not.) BUT…
But. In her current column, she engages in what I see as a common fallacy when she asserts that, because there is no right to abortion mentioned in the Constitution, ipso facto abortion is not a right. And she’s not alone. Conservatives all over the map do it. I believe they are mistaken, factually and strategically, both.
First, as a matter of fact, the Ninth Amendment renders the “It’s not in there” argument moot. You do, as a matter of law, have the right to Life, Liberty, and the Pursuit of Happiness, even though those items are not mentioned in the Bill of Rights, or anywhere in the Constitution. As a matter of fact, since the assertion of those rights was inserted in the Declaration of Independence by at least some of the same folk who framed the Constitution, (I believe Jefferson was the only author of the former who didn’t participate in forming the latter), one could even argue without putting too much strain on logic that it would be a matter of original intent. The framers did, after all, hold Them Truths to be Self-Evident, then went on to encode in law that other Rights Held by We the (Little) People … well, they count for something.
Now, one can argue that abortion isn’t properly a right. That is, you may say access to any medical procedure is a matter of right, but the performance of some of them might eventuate in the abridgement of the rights of some third party, and they are therefore subject to sanction. Nor does the right of access transfer status as a right to the procedure we label with the term “abortion.” It can’t. THAT would require the enslavement of the medical practitioners capable of performing the procedure and the theft of the required materials. Which is why I say that you can’t have a right to something that requires somebody give it to you. Access is not possession or performance. You have a right to free movement — limited by private property boundaries and the speed of your feet. You don’t have a right to a car. You have a right to buy one, if you have the money, but that’s as far as it goes. For someone to avail themselves of more than access to any medical procedure calls for contractual agreements and the exchange of compensation of some nature — whether the arrangement is strictly commercial or otherwise. This falls entirely outside of the nature of rights.
Therefor, to argue about rights to abortion is to engage in sophistry. And THIS is where I believe those opposed to the practice should begin their arguments against it, not by claiming that rights not enumerated in the Constitution do not exist.
In fact, I believe a far stronger argument against abortion relies on the existence of unenumerated rights, including most particularly the right to life — most fundamental of all rights — and inhering to any individual human being. If an object is alive and it is human, then it is a human life, with rights inherent to it, and the ending of it for whatever reason under whatever pretext is wrong in the first place.
Since common law assumes personhood descends like a mantle on a being sometime at or after birth, this would seem to militate against rights being extended to the unborn, and this is the nub of the argument. The prolife crowd claims that, as science has advanced, and medicine has improved to the point where we know that a child in the womb is self-aware long before birth, and that extremely premature newborns can survive against incredible odds, the definition of what makes a person — in particular, when the mantle of personhood settles upon an individual — must needs meet redefinition. And THAT is where the discussion should center. That is to say, as a matter of fact, if not of law, a person is a person a good deal before birth, and the law needs to recognize that.
The rabidly pro-abortion Left refuses to engage on those grounds, perhaps sensing that they would lose the argument if it were to eventuate. That doesn’t stop those opposed to the practice from moving abortion’s Overton window in that direction.
And, I believe, it must start with those In the Right desisting from arguing on the specious grounds that, because abortion is not enumerated, it cannot be a right.
Cross-posted at Eternity Road.