Friday, May 15, 2009
Abortion is one of those topics that just won't go away. It's a favorite rallying cry for the right-wing, along with guns and gays. It's so odd that the corporate elite are stealing the savings, wages, pensions, benefits, holidays, vacation, sick time, healthcare, public education, jobs, hope, future from working people in this country, yet the Republicans are still able to convince at least 20% of the people that their "real" concern should be whether some woman they never met can terminate a pregnancy based on reasons and grounds unknown to them. It's astonishing how easily some people can be manipulated.
Here's the basic truth about abortion: it's a tough issue. Nobody is really going to support the abortion of a 8.5 month old fetus unless the mother is going to die without the abortion. Most rational people would not object to the abortion of a 1-week old fetus. The real dispute comes with everything in-between.
Some people see this only in personal and emotional terms: "I could never have aborted my children. It would have been like killing my children." Other people see it only in impersonal and unemotional terms. Some people see it in religious terms: thou shalt not kill (although they often don't seem to apply that to war or the death penalty).
Everybody's entitled to have their own opinion and to make their own decision about how they would proceed if they were ever in a situation in which they considered having an abortion. Nobody has suggested forced abortions, for example. It should be a personal decision.
What is the legal underpinning to this ridiculous national neverending argument? It's much slimmer than most people realize.
The federal government has extremely limited authority. The Constitution is clear in listing the specific areas in which the federal government is given any authority. For example, the federal government is directed to build and maintain a road (highway) system to connect the states, to create and maintain a postal system, to provide for the common defense against foreign invaders, to enter into treaties with other nations. But there is nothing in the constitution that would give the federal government the authority to ban abortion. So that's an important starting point.
If the federal government has no authority to ban abortion, the question then is whether any State has the authority to ban abortion. The generally accepted view is that the States may regulate and control the provision of healthcare services, as part of the general health and safety responsibility of state government. So, for example, they can require that only medically-trained people can provide abortions. They can require that abortions must be performed in a medical clinic, and not in people's homes, if there are sufficient health and safety reasons to support that requirement.
But what would be the legal grounds for any state or for the federal government to outright ban abortion? That's always been the question.
Women have the right, as citizens, to control their own bodies, which should include the ability to abort a fetus. Women do not "belong" to men, so men (even the biological father) have no ability or legal right to enslave women, tie them down, force them to bear an unwanted child. So it seems clear that the decision belongs solely to the woman, a citizen of this nation who has the natural-right to control her own body.
If the state does not have any obvious legal grounds to prohibit abortion, and the biological father cannot, then who has "standing" to go into court and protest the abortion?
What the right-wing has tried to argue is that a fetus is a "Person" under our Constitution. If a fetus is a "Person," the right-wing argues, then each "Person" is entitled to [Equal] protection by the federal and state government. The fetus, through a legal representative, could petition the court to "protect" it against abortion. That's the theory upon which they have pinned their hopes.
Some states have passed laws saying that if a pregnant woman is murdered, that is a double-homicide. This is primarily intended to serve as a stepping stone to banning abortions. Each time such a new law is passed, saying that assaulting a pregnant woman is a double-assault, for example, it always turns out the backers of the law are the right-wing religious groups whose true goal is to provide a legal underpinning for their ultimate objective of getting a court to rule that a fetus is a Person for all purposes.
But the fact is that the Constitution never in any way acknowledged, considered, or recognized a fetus as a Person, or as anything else. There is nothing in the Constitution (federal or any state) that recognizes any rights at all in a fetus. That is because everybody who is not ideologically blind understands the word "Person" means a born human being, not an un-born human. Fetuses abort all the time, miscarry, are lost, for many reasons, so whether the fetus will or will not ever become a "Person" is uncertain until birth.
If a fetus was a Person, for example, then the Constitution would include the fetus in the count of the population (census) which is used to determine how many Representatives will be allocated to each state. But there is no such mention of a fetus, and for good reason. A fetus is a potential Person and nothing more. In our Constitution, a fetus is not entitled to legal recognition as a "Person" until it is born.
The Supreme Court in Roe vs. Wade used a 1/3, 1/3, 1/3 analysis. During the first 1/3 of a pregnancy, women are free to have abortions, and nobody should interfere. During the second 1/3, there are sufficient medical implications that a state can require, for example, that it be performed only under medically-appropriate conditions (not in a home, for example). During the last 1/3 of the pregnancy, the Supreme Court held that a fetus is "viable," meaning it theoretically could live outside the mother, and that is close enough for it to be considered entitled to protection, so a state can ban what are called late-term abortions.
But what about if the mother's life is in danger, and it's late-term? Who gets to decide? Seven-month pregnant woman who will likely die unless the pregnancy is aborted? For example, her blood pressure sky-rockets and she is at high risk of stroke or death. Who decides? Does the act of getting pregnant make women incompetent, or mean their rights as human beings should be taken away, given over to the government?
How could the government be given the right to condemn women to death if, for example, they start bleeding, and the only way to save their life is to abort the pregnancy? Should the government have the authority to rule that all women in those circumstances must be left to die, that no medical person can help them, stop the bleeding, save their lives, if it would abort the pregnancy? This debate is fundamentally about whether the state has the right to order all women be left to die in a problem late term pregnancy.
Of course feminists believe the anti-abortion rant has nothing to do with pregnancy, and everything to do with the rage of the religious-right who want to punish women for leaving the kitchen and using birth control to decide when to get pregnant, and how many children to have.
Much of the anti-abortion movement is populated by people who have a sincere belief that abortion is murder, and they are entitled to their belief. But much of the anti-abortion movement, and I would say the leaders, are simply men who are in a rage against independent women, and the door-mat women who are trying to get acceptance, protection, maybe even love, from these fanatical men who advocate killing any woman who supports abortion. Like having a crush on O.J.