People attending a pro-choice rally

While the nation awaits the final deci­sion of the Supreme Court on the issue of abor­tion, some inter­est­ing ques­tions arise from that poten­tial decision.

Justice Alito, the appar­ent lead author of the upcom­ing deci­sion stat­ed, “The Constitution makes no ref­er­ence to abor­tion, and no such right is implic­it­ly pro­tect­ed by any con­sti­tu­tion­al provision.” 

Part of that state­ment is cer­tain­ly true but the Constitution also makes no spe­cif­ic men­tion of a great many rights that we now take for grant­ed: the right to get mar­ried, the right to have chil­dren, the right to have sex, the right to own prop­er­ty, the right to cross state lines, and on and on.  If we rely strict­ly on rights enu­mer­at­ed in the body of the Constitution (as strict con­struc­tion­ists like Alito and Thomas appar­ent­ly believe), how easy would it be for the gov­ern­ment to sim­ply ignore all the oth­er rights of which we take advantage?

The orig­i­nal Roe v. Wade deci­sion was ruled essen­tial­ly on the right to pri­va­cy, even though no such spe­cif­ic right is stat­ed in the Constitution.  However, Amendment IV says: “The right of the peo­ple to be secure in their per­sons, hous­es, papers, and effects, against unrea­son­able search­es and seizures shall not be vio­lat­ed…”  Is it not arguable that remov­ing the right of an indi­vid­ual to make a deci­sion regard­ing their own health and wel­fare and with­out affect­ing the same of any oth­er indi­vid­ual, is a seizure of that right?

And if, as pre­dict­ed, the court rul­ing leaves the actu­al con­trol of abor­tion rights up to the states, and the states sub­se­quent­ly decide that indi­vid­u­als may not access abor­ti­fa­cients by any means, is that not then a vio­la­tion of inter­state com­merce laws?  What if a state rules that its cit­i­zens may not legal­ly trav­el to anoth­er state in order to obtain abor­tion ser­vices?  A slip­pery slope indeed.

And if revo­ca­tion of the Roe v. Wade rul­ing allows states to fur­ther define how they will reg­u­late abor­tion, should not the states then be allowed to make their own rul­ings about the right to bear arms?  Could not a state declare that only cer­tain types of arms may be owned by indi­vid­u­als?  Could a state deter­mine that it was nec­es­sary for a gun own­er to obtain lia­bil­i­ty insur­ance in order to own it, just as states reg­u­late insur­ance require­ments for dri­ving a car? 

There are already laws in vir­tu­al­ly every state that pro­hib­it per­sons below a cer­tain age from pur­chas­ing a firearm and these laws have been accept­ed as not vio­lat­ing the intent of the Second Amendment.  What if a state says you can’t pur­chase a firearm unless you’re six­ty-five?  Can states deter­mine what types of firearms may be owned?

If strict con­struc­tion­ists believe that the found­ing fathers got every­thing right at the begin­ning, why don’t they also believe that the Second Amendment, adopt­ed in 1791, should apply only to the types of arms that were then avail­able, main­ly flint­locks?  After all, all the sub­se­quent amend­ments to the Constitution demon­strate that the orig­i­nal doc­u­ment was essen­tial­ly flawed.

It is so easy for those not fac­ing the prospect of hav­ing an abor­tion to ascribe the deci­sion as one of self­ish­ness or uncar­ing and those who take such a posi­tion absolute­ly have no con­cept of the ter­ri­ble deci­sions fac­ing women who are forced, by what­ev­er cir­cum­stances, to face that choice.

Or per­haps a state could more nar­row­ly inter­pret the Constitution’s Second Amendment (as the courts have con­sis­tent­ly refused to do) and decide that only mili­tia mem­bers have gun own­er­ship rights.  How many gun own­ers would retain their weapons if they were required to under­go peri­od­ic train­ing as mili­tia and be sub­ject to a call to ser­vice at any time much as the National Guard is?

Maybe the issue of abor­tion will nev­er be set­tled, at least to the sat­is­fac­tion of everyone.

It is so easy for those not fac­ing the prospect of hav­ing an abor­tion to ascribe the deci­sion as one of self­ish­ness or uncar­ing and those who take such a posi­tion absolute­ly have no con­cept of the ter­ri­ble deci­sions fac­ing women who are forced, by what­ev­er cir­cum­stances, to face that choice.

Perhaps Pete Buttigieg’s response to a loaded ques­tion about late-term abor­tions sums it up best.  He not­ed that late-term abor­tions rep­re­sent only about 1% of preg­nan­cies and added: “Let’s put our­selves in the shoes of a woman in that sit­u­a­tion.  If it’s that late in your preg­nan­cy that means almost by def­i­n­i­tion, you’ve been expect­ing to car­ry it to term.  We’re talk­ing about women who have per­haps cho­sen a name, who have pur­chased a crib.  Families that then get the most dev­as­tat­ing med­ical news of their life­time.  Something about the health or life of the moth­er that forces them to make an impos­si­ble, unthink­able choice… As hor­ri­ble as that choice is, that woman, that fam­i­ly, may seek spir­i­tu­al guid­ance, they may seek med­ical guid­ance, but that deci­sion is not going to be made any bet­ter, med­ical­ly or moral­ly, because the gov­ern­ment is dic­tat­ing how that deci­sion should be made.”

So, while it’s true that the Constitution does not specif­i­cal­ly men­tion pro­tec­tion of the right to choose an abor­tion, it is also true that in 1787 abor­tions were not ille­gal as were a great many things that occur now, and it’s time to quit using strict con­struc­tion­ism as an excuse for address­ing this issue.

  • Chuck Witt

    Chuck is a retired archi­tect, a for­mer news­pa­per colum­nist, and a life­long res­i­dent of Winchester.