Vox Libertatis
columnist: Nick Sheedy

Topic: Abortion
The “Pro-Life” and “Pro-Choice” position on abortion

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My personal perspective on the issues surrounding abortion. (My first Nolan Chart Article. Please tell me what you think!)

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by Nick Sheedy
(Libertarian)
Thursday, December 13, 2007

Abortion has never been a hot-button issue for me. Sure, I have my opinions, and I am comfortable with them, but I've never been passionate about getting other people to see things as I do on this issue. And so the purpose of this article is more to offer my perspective rather than to try to persuade anyone else over to my way of thinking. Some of these positions I never hear emphasized, and so I hope you will consider my thoughts.

When I tell people that I consider myself both "Pro-Life" and "Pro-Choice", they usually smirk, as though they think I'm trying to be silly. But the fact is, my position is just that--although I may differ from other self-described pro-choicers about when the important choice is made.

A woman has a right to control her own body

Many pro-abortion proponents press the issue that a woman has a right to do with her body what she wants. And I wholeheartedly agree. But I feel compelled to point out that, while dependent on the mother, an unborn child is not part of a woman's body. From the time of conception, a fetus has its very own DNA, distinct from either parent. From that moment, it is a separate and unique individual. I believe that this fact is more important that the viability test, in which abortion has been considered to be acceptable as long as the fetus was not viably capable of physically living outside the womb.

But is an unborn child a person, in a legal sense? In places like England, a baby is not considered to be alive (or a person with legal standing) until it takes a breath. In the United States, the question is less settled. The viability issue (when the fetus is able to live on its own outside the womb) has become the prevailing test when it comes to the courts, but it has inherent flaws. Try to answer these questions: 

• Is even a healthy newborn baby really capable of living on its own? (A baby may breathe and suckle by instinct, but she cannot feed herself, care for herself, and she is completely dependent on another person.)
• What about a child who requires an incubator, ventilator or blood transfusions to live? Is she really not a person until she no longer need such assistance? (If a weak or sickly baby were born and every effort was made to keep him or her alive, but the child died, it might be an obvious conclusion that the child was not "viable."  If that were the case, then the viability position would dictate that such a child was never really a person, in a legal sense, and would have bever enjoyed any rights as a person, even after it was out of the womb and physically independent of the mother.)
• Moreover, what about adults who are physically incapable of living independently, or without serious medical assistance (e.g. a breathing apparatus, a dialysis machine, etc.)? Are they not viable human beings?

When the choice is made, and equality under the law

Another point that bothers me in the abortion debate is the insistence that only a woman has a right to choose. I find this troubling, because I've always understood that it takes two to tango. When a woman becomes pregnant, the father of the child is held legally and financially responsible for the child, starting with prenatal care (hence, from the time of conception). In enforciong his responsibilities, it is presumed that if a man is in fact the father of a child, he consented to sexual intercourse, and must be held responsible for that choice. (In Sweden, the consensual aspect of paternal responsibility was even skewed when a lesbian couple, who had a child through artificial insemination, successfully sued in court to force the sperm-bank donor who otherwise thought he had been anonymous to pay child support for the child!) Moreover, a father has certain rights as a parent, which he cannot be denied without due process of law. His rights and responsibilities are based on the simple fact of paternity. But, between the time of conception and birth, only the father's responsibilities are enforced, while he is allowed practically no rights--and his parental rights may be totally extinguished if the mother chooses to terminate the pregnancy.

So when is the all-important and legally binding choice made? It seems that, for men, the "point of no return" is the moment of conception. I fail to grasp why a woman should not be held to the same standard. Considering the U.S. concept of equality under the law, I find it very strange that when two consenting adults engage in sexual intercourse, a man should be held liable for his actions at the moment a child was conceived, but that a woman might have months to mull it over.

A father is held legally responsible for a child from the time the child is conceived, but he has no choice in the matter after that, and no parental rights until after the child is born? I would think that a mother should be held to the same standard.  On the other hand, it could be argued that the law might be applied equally if both parents had the same rights during pregnancy.  It might even be argued that the father and the mother enjoy an equal individual right to end a pregnancy at will.  I must ask at this point: what is the difference between a man choosing to end a pregnancy, and a woman choosing to end a pregnancy--with or without the other's consent? If each parent really enjoys equal rights and responsibilities, it would be no different.  I doubt that is a legitimate position since the consequence would be that a man could force an unwilling woman to abort thier unborn child, which would be unthinkable. But this is a legitimate line of reasoning if the abortion issue really is about a parent's right to terminate a pregnancy.

Instead, I say that a baby is the natural consequence of sexual intercourse, and I believe that the choice between consenting adults to engage in sexual intercourse is the choice that shoud be binding. For this reason, I believe that the moment of conception should be the point of no return for both men and women when it comes to both parents equally enjoying their parental rights and responsibilities.

A fundamental legal flaw

Unfortunately, the biggest legal blunder of Roe v. Wade and other similar abortion court cases is the idea that this is a Federal issue. In Roe, the Supreme Court interpreted the U.S. Constitution to protect a person's right to privacy, and it followed up on this rationale that the decision to have a baby or not is a very private issue, and is therefore protected by the Federal Constitution. This has been stretched into the position that a woman has a fundamental right to terminate a pregnancy at will, and since the right is protected by the U.S. Constitution, it nullifies any state statutes to the contrary.

The fact of the matter is, the issue was (and should still be) fundamentally a question of what powers a State may legitimately exercise in protecting the life of an unborn child.  This is a question that should be left up to each State Legislature, and may be subject to review by a state courts, but has no place in the federal arena. The powers either to establish the right to abortion on demand, or prohibit abortions is simply not given to any branch of the Federal government.  Moreover, the protection of human life is an inherent authority and obligation of a State.

Minors, abortion and privacy 

I think it is a no-brainer that on-demand abortions should be prohibited for a minor without her parents' consent. A school nurse can't give a 17 year-old an aspirin unless a parent has consented in writing. Would any concerned parent not object to someone performing any other elective surgery on their child without consent, or even notification? I fail to comprehend how anyone could defend the practice of performing abortions on minors without consent of a parent, or a court.

Moreover, the idea that even children somehow have a fundamental right to choose to have abortions is inconsistent with other valid state statutes that address issues of minors and sex. Statutory rape laws (which are state statutes, and not federally classified) define the age when a person is legally capable of sexual consent. How could it be that a child of 14, 15 or 16 is incapable of making a lawful decision to engage in sex, but that they then could be capable of making the decision to terminate a pregnancy? This rationale is inconsistent. I say that if a child is not legally capable of consenting to engage in sex, it would be preposterous to believe that the child has a legal right to choose to deal with the natural consequences of sex.

Sure, a parent might be upset with a minor who becomes pregnant, and the minor would probably want to avoid that confrontation.  That is understandable.  But that is no justification for excluding a parent from exercising their parental rights.  If that were so, then a parent's rights would be void in the shadow of their child's right to privacy.

At this point, it is very important to emphasize that the U.S. Supreme court based its decision in Roe v. Wade on the opinion that a woman’s right to make such a choice was grounded in a fundamental right to privacy.  It would be very strange to say that a parent is lawfully responsible for a child's welfare and can be held legally responsible for that child’s actions, but that child has some right to act secretively and completely independent of their parent(s). If that were true, a parent would have no authority to breach their child’s privacy! But this is not so.

A minor does not have the same right to privacy as an adult, and a parent has an exclusive right to be involved in every aspect of their child's otherwise private life. It must follow (even under Roe) that, since a minor does not enjoy an unfettered or fundamental right to privacy, a minor cannot possibly enjoy an unfettered or fundamental right to obtain an abortion.

Conclusion

I do not think that the abortion issue is fundamentally about a woman's right to choose or her right to privacy. Trying to address it as a personal right, I find that some serious issues go unanswered: men and women could be held liable for different choices at different times, leading to an unequal application of the rights and responsibilities prescribed by law; a child who is not legally capable of consenting to engage in sexual intercourse could have a right to demand an abortion; and if a child has a right to choose to have an abortion, it would only be an extension of their right to privacy—this has far reaching consequences to say that a child’s right to privacy outweighs a parent's rights and responsibilities.

Given my position above, that a baby is the natural consequence of sexual intercourse, and the choice between consenting adults to engage in sexual intercourse is the choice that shoud be binding to establish both parents' rights and responsibilities, it follows that abortion might only be allowed, as a right, if both parents consented.  Otherwise, it could only be allowed in cases of rape and incest (instances whereby consent can not or should not have been given), or if the mother's life is in danger (which is essentially a matter of self-defense).

But I believe that the abortion question is fundamentally not about a parents' rights, but rather about when life begins. I do not think it matters at all what method might be employed—a surgical or invasive procedure, or simply swallowing a pill.  Nor do I think it matters if the life of an unborn child's life is terminated a few hours after conception, or just moments before a baby's head is free and clear from the mother's body. When we understand that a fetus has its own unique DNA, distinct from either parent, and begins growing immediately, the only conclusion I can reach is that a fetus is a unique and special individual, is not part of a woman's body, and that human life begins at conception.

As a matter of politics in the United States, I believe that addressing the abortion issue at the Federal level (in Congress, the courts or any federal agency) is a mistake. This is fundamentally a question about a State exercising its legitimate powers. The State has the authority and an inherent obligation to protect human life. Under each States' constitution, and according the each States' legislature and courts, the exercise of this power and the recognition of an individual rights and the definition of when life begins may differ. But because the issue has become so divisive in our country, I believe that community standards will be better considered and honored if the issue is left to States to address. This may not suit some people on either end of the issue, but in a Federal Republic, it is the best solution.

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2007 Nick Sheedy, all rights reserved.
Published: Thursday, December 13, 2007
Last modified: Thursday, December 13, 2007

The views expressed in this article are those of Nick Sheedy only and do not represent the views of Nolan Chart, LLC or its affiliates. Nick Sheedy is solely responsible for the contents of this article and is not an employee or otherwise affiliated with Nolan Chart, LLC in his/her role as a columnist.

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