Is an abortion ban constitutional?

2006.03.08 — Government | Law | Abortion | by Barton Castor

This is part two of a two-part series. Be sure to read part 1: "The slow and painful death of abortion"

Any discussion of when and how to ban abortion assumes that a ban of any type is constitutional. But is it? First, remember that the federal government has a constitutional jurisdiction largely limited to matters of interstate commerce and national defense—very narrow boundaries that have got it in dutch with the Supreme Court a number of times in the past. The attempted federal ban on IDX ("partial-birth") abortion is on thin ice and probably can only be justified by simply asserting that a near-term fetus is a person protected by the Constitution—groundwork carefully laid with Laci and Conner's Law, which gave personhood to unborn babies by making violence against a pregnant woman into two separate crimes. States, however, can write any legislation they want that does not directly contravene their own constitutions or the United States Constitution or impinge on the rights of other states.

Any law that doesn't allow for abortion when the life of the would-be mother is endangered is on thin ice. It makes sense that the life of the mother must take precedence over any right to life we give to her unborn child in the same way that doctors get to decide which conjoined twin gets the larger share of the liver. Besides, if the mother dies late in the pregnancy, what chance does the baby have? But... is there really a constitutional basis for a right that affirms this? Not really.

In fact, it is exceedingly hard to find any right in the Constitution that allows a woman to kill an unborn child any more than she can kill a child that has just been born. The 24th week compromise is a legal smokescreen of convenience. There is no significant legal difference between a fetus that can live outside its mother's womb and a fetus that can almost live outside its mother's womb any more than there is a legal difference between Stephen Hawking and Stephen Colbert. Stephen Hawking's brain works fine; it doesn't matter that his body is a twisted mess of biology.

Yes, I just used Stephen Colbert in my example in hopes of attracting that white hot Colbert Report viewership from Google.

Legal differences can only be found in mental competency (which is why I didn't make my comparison between Stephen Hawking and George W Bush). There clearly is a difference between a fetus with a functioning brain and an embryo with a mass of neurons. A corpse has a mass of neurons that are much better developed than a 9-week-old embryo's, but it has no rights (or virtually no rights—you can't, for example, leave it out on the back porch).

Even a cursory glance at other laws that govern private behavior such as prostitution should make it obvious that states are well within their constitutional boundaries to outlaw abortion—at any stage and for any reason. After all, there's no legal loophole that allows a woman to have sex for money if her life is at risk. No laws have that; it's ridiculous to imagine that an abortion law must have it, even if we think it's sensible.

The conservative judges Bush has appointed to the court know all this, plus they have no sympathy for women who don't want the children they are carrying any more than they have sympathy for men who don't want children they have fathered. Tough luck, they'll say, the Constitution doesn't have an escape clause. You have obligations to fulfill.

If Americans want any kind of abortion or assisted suicide rights, it may be necessary to pass an amendment to the Constitution that defines a human being as having rights only when he or she has brain function. That could serve the purposes of pro-choice advocates and death-with-dignity advocates simultaneously. But without it, these groups are legally on very thin ice when they fight laws they don't like.

After having won the fundamental argument, pro-lifers might be ready to give in on the idea that an embryo is somehow legally a person. But don't bet on it. The abortion debate is about morality as much as it is about logic and legality.

My deep suspicion is that the most ardent and strident pro-lifers hate abortion not because they consider all life precious (they don't seem to hate capital punishment or warfare) but because they consider an unwanted pregnancy evidence of sin: sex without the purpose of pregnancy. This is the Vatican's point of view. Sex is for procreating only, so even birth control, let alone abortion, is sinful. And there's no amount of logic that can sway that kind of thinking.

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