Life, Liberty, and Abortion
Mississippi has an interesting law on the ballots in next week’s state elections; granting human rights at conception. Amendment 26, up for vote in Mississippi would grant humanity rights at conceptions. This means that as soon as a sperm combines with an egg the same rights granted to you and I are given to the embryo. The obvious purpose in this bill is to make abortion criminal on the same level as murder. If, as Amendment 26 would legislate, human rights are granted at conception it creates complicated legal situations. The obvious implication is that anyone found taking part in an abortion would be implicated in a murder investigation, and subsequently charged. This is the goal of Amendment 26, which is expected to pass comfortably in the deep Christian society of Mississippi.
Granting human rights to an embryo could cause some complicated problems. To start, many believe that this Amendment 26 violates the judicial review of the Roe v. Wade decision, which does not allow a law to regulate abortion prior to completing the first trimester, where the “abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.” however, the Roe v. Wade decision does allow states to regulate abortion as they see necessary after the first trimester is complete.
“The decision leaves the State free to place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those restrictions are tailored to the recognized state interests. The decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention. Up to those points, the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician.”
However, proponents of the law argue that Amendment 26 will not violate the Roe v. Wade decision because it is in regard to the criminalization of abortion. Amendment 26, they opine, does not directly deal with abortion, but with citizenship. If you grant rights to an embryo it is then counted as a human; this being the case, terminating the pregnancy would qualify under law as murder. However, Roe v. Wade does address the issue of citizenship when the ruling reads that the Constitution grants rights to those born in the United States, or those naturalized to the United States. A loose interpretation of the naturalization clause certainly could refer to pregnancy; however, historically the naturalization clause has referred to granting citizenship for immigrants. Moreover, the Amendment 26 supporters could argue that if we give constitutional rights to terrorists, certainly not citizens–naturalized or otherwise, then an embryo is justifiably deserving of these same rights. This is a very valid point; we cannot interpret citizenship rights as we please to fit any piece of legislation, they must be consistent. Either we must grant rights to embryos, or stop granting them to terrorists; we cannot oppose our own law and do both. Furthermore, pregnancy has, as thus far in history, not been a determining factor in citizenship. An American citizen on vacation, though conceiving at home, who experiences an unexpected labor, must go through many legal hoops to have that child granted citizenship to the United States. Likewise, a child conceived in another nation can become a citizen if born in the United States, regardless of a parent’s citizenship. The parent merely needs to be on US territory, whether by vacation or illegal immigration, and the child will be born a citizen. In this interpretation it is difficult to see that Amendment 26 could legally grant citizenship rights an embryo; however, we cannot know until the law is tried in court. On the other hand, the possibility holds that if we give constitutional rights to illegal immigrants, they by nature must be extended to an embryo. Moreover, a direct interpretation of Roe v. Wade states that abortion can be termed illegal passed the first trimester if the state so chooses. It is difficult to say conclusively whether Amendment 26 would stand up in a case of judicial review.
Proponents and opponents of abortion throw around the word “unconstitutional” with the same ease congress has thrown around tax dollars. Those in the pro-choice camp say it is unconstitutional to prevent a woman’s right to make a choice by deeming abortion illegal. Those who side with pro-life state that abortion is murder, and therefore must be illegal. Well, the Constitution says nothing in regards to murder, that law was legislated as law outside our nations guiding document; but the following is a direct quote from the Constitution concerning abortion.
The Constitution says absolutely nothing on the matter. Therefore, those who argue abortion on the terms of constitutionality are critically flawed. A loose interpretation of the 14th Amendment could be seen as a statement against abortion; “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” If citizenship rights are granted to embryotic cells the state would have to give them equal protection under the law, as the Amendment states. The argument could be made that if abortion is legalized the state has legislated to deprive the embryo of life. If embryos were given rights, the state could not make abortion legal because that would be legalizing the termination of a citizen, whether you believe that citizen is alive or not. This would not grant that embryotic citizen due process of law, because there would be no crime in the termination as there would be once the embryo takes its first breath.
Patriotslog supports the only true constitutional interpretation on abortion; that being at states discretion. The 10th Amendment in its entirety states, “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.” because abortion is legislated nowhere in the Constitution, this Amendment tells us the decision on abortion should be dealt with by each state individually. The Constitution is clear that state legislators have to right to make abortion laws for their states, but patriotslog affirms that each state ought to have their own popular vote on the matter. The people can decide without violating the Roe v. Wade decision because the states can make legislation concerning the matter “as the period of pregnancy lengthens.” I find it curious, if I may digress momentarily, that those who overwhelmingly oppose abortion–conservatives–also overwhelmingly support the death penalty; conversely, those who overwhelmingly support abortion–liberals–also overwhelmingly oppose the death penalty. The reasoning for these views however, is logical despite the apparent hypocrisy. For liberals, life is sacred, but life is defined only after birth. Once a human takes its first breath that child has a right to live. For conservatives, the principal of justice is valued equally with the sanctity of life. This is largely a religious belief–not that that makes it any less valid or true–stemming from the belief that we all must answer for our actions, a very constitutional belief in itself. A fetus or embryo cannot make decisions, and cannot speak for or defend itself; therefore, it is unjust to terminate it. Convicts on death row have made their choices, and society has deemed them unfit for society. If this is the case it is then unjust to have society, whom the convict has allegedly committed atrocities against, support their life day after day in prison. For these logical reasons, patriotslog supports the state vote on abortion. Even though an embryo or fetus has done nothing wrong, if society deems that potential child unwanted or unfit for society, it can follow that society should not have to support that potential child through public school, civil liberties enforcement, defense, etc. However, the counter argument can be made that if society must support illegal immigrants with these privileges, why would it not support an unwanted child? Whether you agree with abortion or not, the legal stance on the matter is to let the people choose. Of course this still opens the possibility that if a neighboring state allows abortion, one could cross state lines–as many do now–and obtain an abortion. There will never be any way to guarantee abortion never happens, if it were voted to be illegal, the same way you cannot guarantee murder or any other crime would never happen, but at the least we could have clear and definitive legislation regarding the matter.
If Amendment 26 is passed the new legalities of the law are unclear. If a fetus or embryo would be considered a human, and therefore be given rights under the law it could create some serious legal implications. Clearly abortion would be murder, but by the law the “morning after pill” would also be considered murder because the child would already be conceived. If a mother drinks or smokes before she knows she is pregnant can she be charged with child abuse or neglect? An aggressive interpretation of the law could even deem a miscarriage as manslaughter. Aside from criminal aspects there are still many questions. If an embryo is considered human how are they counted in a census? Is pregnancy tax deductible because of a dependent? Airlines may require two tickets for a pregnant mother to fly. Families with malicious intent or a history of miscarriage could theoretically take out large life insurance policies on the embryo, resulting in massive payouts for the child not having a full and healthy birth. Could there be custody battles over the embryo? If the mother was unfit does a father have a right to choose another woman to carry the baby? Should we spend tax dollars to research if such a procedure could be possible? If the mother does smoke or drink, the state child services could presumably take the embryo away for abuse, using the same procedure a custody battle would hypothetically require. Adoption could also be complicated. Does one have to go through the adoption process to undergo in vitro fertilization? Seeing that we have no known cases for freezing live citizens, would freezing the embryo in order to preserve it for IVF be legal? The questions and complexities of Amendment 26 are as intricate as they are lengthy. Considering all these possibilities under the law seems to deface the credibility of the Amendment. These could all be legislated against; however, any skilled lawyer could still find holes with which to take advantage of this bill.
Here are the facts on abortion: it is impossible to have a child without conception and a subsequent pregnancy; therefore, terminating a pregnancy does terminate a life, even if you believe that life has not yet begun. There is an average of nearly 1.5 million abortions every year in the U.S.; far more than any number of soldiers killed in any war. The heart of a fetus begins beating at 5 weeks into the pregnancy. On the other hand, an embryo cannot truly “live”, as in possess independent life, until very late in the pregnancy. A fetus in premature birth as late as 6 months very rarely lives. A newborn infant can live independent of its mother, the way a fetus cannot. For these reasons it is difficult–though not automatically incorrect–to legislate when life begins. At conception obviously opens up many potential problems. You could rule that life begins with a heartbeat, but having a heart beat does not mean that child could live independent of their mother. You could rule at the point a fetus could safely be born, but the fetus clearly has full functioning life–kicking, moving, digestion, circulation, etc.–well before it could safely live if born.
Life, citizenship, and abortion are difficult to legislate and normalize. Each person has varying views on what is right, what is wrong, and whether or not right or wrong should even be considered in the discussion. Of course there ought to be exceptions to any abortion law protecting the mother from pregnancies which may be fatal to her, or result from rape or incest. However, it then seems inconsistent to allow these abortions, but no others. Because no one person can claim to know the perfect specifics to legislate abortion, and because every person has a different idea of what “perfect” even is, abortion cannot be easily passed as a law one way or another. This is why abortion should be left to the decision of the people. A state’s vote is the only way to constitutionally decide anything on abortion. Because this is such a complicated issue, whether you agree with Amendment 26 or not, Mississippi is taking the correct road on abortion; let the people decide where abortion is legal and where it is criminal, where life begins and where it should be protected by citizenship.
4 November, 2011
Posted on November 6, 2011, in Constitutional Law, Patriotslog Articles and tagged abortion, amendment 26, citizenship, Constitution, election, immigration, Mississippi, parenthood, pro choice, pro life, rights, roe, roe v wade, supreme court, wade. Bookmark the permalink. 1 Comment.