Yesterday in my Constitutional Law class we finally arrived at the most controversial Supreme Court ruling of the last 50 years: Roe v. Wade. I remember the class going silent when he announced the reading assignment the week before . Why did we go silent? We went silent because we knew blood was going to be shed. We knew after that day some of us would no longer would be friends. We knew passions would boil high, and our voices would be the piercing whistles telling others that we had reached the boiling point.
Well, that’s what I thought would happen. Fortunately (unfortunately?) I was wrong. Indeed, the class was like a normal class except we spent more time talking about morality and less about constitutionality. Before the morality discussion began, the professor polled the class on when abortion is permissible: never, sometimes, or always. Obviously, the sometimes position, the fence sitter position, carried the most votes. About 5 girls (no boys) voted for the always position. Nobody voted for the never position. I found this interesting, and I almost voted for it just to have some fun. However, when he asked for a volunteer to defend the never position, I immediately volunteered. The professor said he’d be “gentle” with me the “sacrificial lamb.” I told him to cut the crap and “Bring. It. On.” See, I think the never position is a more interesting position these days, and I wanted to try out a few arguments I have been mulling over for a while now. The sometimes position is popular and boring. It’s essentially a discussion of when it’s okay to kill the baby. The always position may have an interesting legal argument, but it essentially permits behavior that I think is borderline morally bankrupt (e.g. killing a baby hours away from birth just because the mother wants to go to Paris for a vacation). I’m not sure I can bring myself to believe that our laws allows something that is so appallingly disgusting. Anyway, so I did my best to defend the never position, but the professor, like always, changed the question just before he let me answer, throwing me off of my prepared answer and forcing me to think on my butt (I do better thinking on my feet). I think I did okay, but he forced me into a position where to be consistent I had to say that state legislatures have the power to both completely outlaw or compel abortions. You know, as a guy who likes power decentralized and democratic that position has some appeal to me. The professor also thinks that’s the position one needs to take if one agrees with the dissent of Roe v. Wade.
He also had us read a rather long law review article where the author was making the case that even assuming the fetus is a human being with a right to life, the mother is still under no obligation to keep it to term. Here’s a hypothetical situation that I think gets to the general thrust of the argument. Suppose I lay dying of kidney failure. I will surely die unless I get an immediate transplant from you. You have the only kidney that will save me. Do I or does the state have a right to cut open your body, remove your kidney, and give it to me to preserve my life? It seems the answer is no. You can’t be forced to give me your kidney. Indeed, the state doesn’t take organs out of dead people without permission first. This hypothetical is meant to show that the right to life doesn’t automatically trump the right to bodily autonomy. Therefore, even assuming the unborn child has a right to life it does not immediately follow that the mother cannot have it removed from her body (most likely to its death). The author is clear that there is a distinction between the legal and moral issues. It may be completely legal to deny the kidney but that doesn’t mean it isn’t utterly despicable to do so. Personally, I’m not sure the argument works. In fact, even pro-abortionists in my class seemed skeptical of it. I still haven’t put my finger on why it doesn’t work. I think it might be that in the case of the mother and the unborn child there is an altogether unique and special relationship that forms an obligation which should be embodied in our laws. The author did make another interesting point that a consistent pro-lifer should also be an advocate for Good Samaritan laws.