In Why Abortion is Moral, Elroy writes:
Anti-abortion activists are fond of saying “The only difference between a fetus and a baby is a trip down the birth canal.” This flippant phrase may make for catchy rhetoric, but it doesn’t belie the fact that indeed “location” makes all the difference in the world.
It’s actually quite simple. You cannot have two entities with equal rights occupying one body. One will automatically have veto power over the other – and thus they don’t have equal rights. In the case of a pregnant woman, giving a “right to life” to the potential person in the womb automatically cancels out the mother’s right to Life, Liberty, and the Pursuit of Happiness.
I could not agree more with El’s excellent post.. El lays out the principal human rights argument that is, in my view, unassailable. The concrete issue then becomes a constitutional one. And this is where I find Roe V. Wade so insidious and flatly wrong. My view is that while it is utterly clear that not only is abortion not murder-and is profoundly moral-it is a right reserved to the individual and not a constitutionally guaranteed matter deserving specific federal (or state) action beyond preventing any prohibitions.
The Bill of Rights amended to the U.S. Constitution deals with this (in my view) in no uncertain terms stating, in the 10th Amendment that, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
It is no understatement to point out that all too often the last four words of the 10th seem to be regularly ignored.. In this matter of abortion, I believe it is applicable. It is an inalienable individual right of any woman and, frankly, I can think of few human rights more profound; it is not a power delegated to the United States, per se, and therefore no specific federal right for it ought to be a matter of constitutional contemplation. Ergo, federal funding of abortion is illegal in my view. Moreover, to the extent a state’s constitution deals with it, illegal there too. Abortion is and ought to be an individual matter left only to the woman, her doctor, and any other entity whom she may want to discuss it with… From conception to the delivery room. As a defender of human rights, I draw the line at independence just as El does in his essay.
What would be a constitutional issue, in my view, would be a state prohibiting abortion. Here is where hairs get split. As a jurist, I would argue any state that prohibits abortion would be in violation, ironically, of the 10th Amendment and, more importantly, the general premise of our founding as stated by Jefferson (actually from Locke): “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
What we have here is the proper role of the Supreme Court and a recognition of inalienable human rights. What should be the case is that abortion cannot be specifically guaranteed as a constitutory right, rather the prohibition of it anywhere a limited constitutional matter. A subtle point perhaps, but I believe the founders were brilliant in offering up this clear potentiality; that a matter could be a clear violation of one’s inalienable human rights yet not be a specifically guaranteed right for which federal power, money and effort has a role.
Rather, it is “reserved” to the individual.