BY AIMEE BEDOY & STEVEN OETJEN
A quandary of major proportions faces our nation in this day and age. It could be a matter of life and death for countless persons -- we cannot truly be sure. This paper seeks to examine abortion through the lens of Constitutional law, science, and justice, and lastly to apply these faculties to the Pain Capable Unborn Child Protection Act recently passed in Nebraska. In brief, our recommendation is always to stand for justice and ultimately the natural rights of all persons.
BACKGROUND
The U.S. Constitution, Justice, Personhood and Abortion Law
Abortion & Present Constitutional Law
As law currently stands within the United States, the ability to procure an abortion is a constitutional right, which should not be impeded by an "undue burden." In Planned Parenthood v. Casey, the Supreme Court disseminated a decision which stated as law that "the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State" [1] is a result of Roe's "essential holding" of the right to abortion. According to this statement, provided that new State laws which may place restrictions on the abortion procedure did not provide an "undue interference from the State," they would be constitutional.
The existing allocation of constitutional rights according to judicial decisions regards the woman's right to choose abortion as "central to personal dignity and autonomy," and views it as a matter of "the highest privacy and the most personal nature." [2] However, the Supreme Court also claimed in Akron v. Akron Center for Reproductive Health, Inc. that "the State possesses compelling interests in the protection of potential human life . . . throughout pregnancy." [3] Constitutionally, we are asked to draw the line between the value of potential human life and the value of a woman's so-called right to choose to terminate her pregnancy.
The Constitution & Societal Pressures and Mores
The Court in Roe v. Wade made a claim to ignorance as regards fetal life, and weighed historical belief against the not entirely fully formed beliefs of various modern groups. [4] In this case, our Constitution was interpreted to be a relative compass defined by popular voice, and utilitarian meter based on assigned cultural value. This is not the foundation of the U.S. Constitution -- contrariwise, it is to represent a moral, objective justice that may be unpopular (i.e. banning slavery through the 13th Amendment), but claims truth and righteousness as federal mandate. Yet in the cases of Roe v. Wade and Planned Parenthood v. Casey, the decisions of the courts could not claim to be "grounded truly in principle, not as compromises with social and political pressures having, as such, no bearing on the principled choices that the Court is obliged to make." [5] The laws that states can use to restrict abortion may not place an "undue burden" [6] on women -- however, there is no measure for what consists of an "undue burden" and this policy may deem void those laws which may significantly decrease the amount of abortions, for any reason. These decisions were based on contemporary and societal persuasion, and were given the power of law that easily condone and encourage abortion.
If truth and morality are claimed as part of the Constitutional mandate, what may have been voted on state by state has become a matter of national importance through Roe v. Wade. Though states may attack the Roe decision and the right to abortion little by little through State impositions, "Roe's mandate for abortion on demand . . . rendered compromise impossible for the future, and required the entire issue to be resolved uniformly, at the national level." [7] States may be allowed to add restrictions through political law, but given that the right to abortion was made federally and not locally, the debate has become one of absolutes. But the only real absolute truth in the matter is that which is outlined in the Constitution: the responsibility of the federal government is to protect the life, liberty, and property of all persons. If the government is to protect these rights of persons, there must be a definition of personhood.
Constitutional Law & Personhood
In reality, according to the U.S. Constitution, "personhood" has yet to be defined according to any specific factors. Citizenship is granted to "all persons born or naturalized in the United States," but no State shall "deprive any person of life, liberty, or property without due process of law" (emphasis added). [8] Citizen and person seem to be two different ideas. Though many rights are afforded and protected by the U.S. government to all persons based on the Constitution, personhood is not defined by age, place, gender, or race; neither is it articulated by development, dependency, sexual orientation, creed, or size.
In order to more clearly delineate who is afforded all of the rights granted to persons, and therefore have a totally just Constitutional law on abortion, we as a nation must define personhood. Some specific interpretation must be done that would define this concept according to a great number of categories. This process must be undertaken at a national level; if different states define personhood differently, we may very well be violating the rights of true persons while defining them as "others" in an attempt to negate their personhood. This would be a great injustice.
Justice & Abortion Law
Justice can be divided into natural rights and positive rights. Natural rights are those which are due to persons by their very nature, such as life and liberty. Positive rights are those which are granted to individuals based on agreement or consent. A legislature can formulate positive rights by agreement, and these have their place so long as they do not violate natural rights. Thus, different states can justly make different laws as long as none of the laws allow the violation of natural rights.
Regarding abortion, the positive right guaranteed by the Constitution is the right to privacy. Different laws can exist justly in different states as long as they protect this right to privacy without violating any natural rights. States are free to regulate privacy in abortion in different ways, as is fitting for different regions. If a state law preserves the positive right of privacy in such a way that it fails to protect a natural right, however, it is unjust. The agreement of a legislature cannot make such a law truly just.
The justice of an action considers not only the relation to its agent, but also to others affected. The justice of abortion laws is not only dependent on the privacy of the woman involved in the abortion, but also on the natural rights of other persons. Harm against any other person's natural rights is an injustice that a positive right cannot justly supersede.
Personhood as a Binary Condition
Personhood is a binary condition: either you are a person or you are not a person. While no claim is being made here to know whether the unborn are truly persons, if justice, personhood, and Constitutional law are to be viewed through another lens, consider the case of historical slavery laws in our own country.