Standing is Standing Monday, Oct 27 2008

Since, everyone reads Drudge, I’m not exactly engaging in breaking news by posting this link: Judge tosses lawsuit challenging Obama citizenship.

Like many, I’m sure, I paid some attention to the Obama-is-not-a-natural-born-citizen conspiracy theory, and hoped (while 95% skeptical) that it was true.  Provided it was by legal and ethical means, I was cheering anything that could keep this guy from office, because of his stance on abortion.  But when I heard about the Berg lawsuit challenging his qualifications for office, I immediately wondered how the plaintiff would be able to show standing.  Well, despite my great desire to keep Barack Obama from office, I’ll be the first to admit that the federal court was correct in dismissing the suit.

Under the constitutional requirements for justiciability, in order to have standing to bring suit, a plaintiff must allege (1) an injury that was (2) caused by the defendant’s conduct and (3) for which the court could provide a remedy should it find favorably for the plaintiff.  In addition to these constitutional requirements, the Supreme Court has also articulated a number of prudential requirements, such as that the plaintiff may not assert the rights of others (no “third-party standing”) nor an injury that amounts to a “generalized grievance” shared by all or a large class of citizens.  The “generalized grievance” bar to standing essentially relegates certain matters, for which just about any citizen could allege injury, to the representative branches, where they more properly belong.  For instance, without the “generalized grievance” bar, an objector to the Iraq War could bring suit to challenge the war, alleging an injury in the form of his tax dollars being used to fund what he believes to be an illegal war.  And because any governmental action will involve the expenditure of tax dollars, this would ultimately allow any citizen to bring suit for any governmental action, making the courts arbiters of all governmental decisions, clearly not the design of the Constitution.

The U.S. District Court for the Eastern District of Pennsylvania dismissed Berg’s lawsuit for precisely this reason – namely, that he asserted only a generalized grievance shared by all voters alike who opposed Barack Obama’s candidacy and potential election as President (you can read Judge Surrick’s well-written memorandum and order here).  Does this mean that if, say, there were more solid evidence of Obama’s nonconformity with Article II, Section 1, Clause 4 of the Constitution, that no one could challenge his eligibility for office?  Well, no.  Often, when a case is dismissed under the “generalized grievance” bar, it is an implicit recognition that there is a better plaintiff out there, one who could assert an injury in a more personal, tangible manner.  Who would such a plaintiff be in this case?  John McCain, of course.  So, why hasn’t McCain himself brought such a suit, since he would be far more likely to establish standing?  Probably because, like most conspiracy theories, this one’s a loser.  Oh well.

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The Abortion Missionaries Sunday, Oct 26 2008

[Sorry for the long delay.  Work's been busy lately]

According to The Telegraph, the Dutch “Women on Waves” abortion boat recently docked in Valencia, Spain, where, like modern enlightened missionaries to the backward, superstitious savages, the Dutch “charity” brought abortions to women who otherwise would not receive them under stricter Spanish abortion law.

The boat, run by the Dutch charity Women on Waves, docked in the southeastern port of Valencia on Thursday night, where it will shuttle women seeking abortions 12 miles out to sea in order to escape Spanish jurisdiction and perform the procedure.

The four-day mission is supported by more than 30 Spanish organisations, which hope it will serve to highlight the need for a reform of Spain’s abortion laws.

On Friday morning three women seeking terminations – all less than seven weeks pregnant – boarded the yacht “Menina” and were taken out into international waters before being given an abortion pill.

The article, in my opinion, reinforces three things I have observed about abortion in general, and about the pro-abortion movement in particular.  First, pro-choicers like to point out the fact that the international trend has, and continues to be, toward a more liberal abortion policy.  As poorer and less developed countries progress and modernize, they are more likely to end up legalizing abortion, not the reverse.  Therefore, they contend, a liberal abortion policy is indicative of progress and modernization.

Well, they are correct in that countries’ abortion laws almost inevitably become more liberal over time, and almost never more restrictive.  What they fail to mention, however, is the role already-”developed” countries play in aggressively pushing such a pro-abortion agenda on these developing countries, as well as other more developed countries.

A few examples come to mind: See, e.g., the following articles:

• Government of Finland Pressures Nicaragua to Legalize Abortion
• Sweden Cuts Aid to Countries that Oppose its Pro-Abortion Stance
• EU Threatens to Withdraw Aid to Nicaragua if Pro-Life Law Remains

The “Women on Waves” project epitomizes this push.  It is not enough for the Dutch to have the liberal abortion policy it has.  No, they must insert themselves into Spanish policy in order to “highlight the need for a reform of Spain’s abortion laws.”  This, in my mind, cuts, at least in part, against the argument that liberalizing abortion is synonymous with progress.  If less developed countries are required to change their abortion law as a condition of accepting aid, or if more developed countries are subject to similar pressure through campaigns such as this, then the fallacy post hoc ergo propter hoc seems pertinent.

Second, the article reinforces the observation that, often, the aim of abortion proponents is not simply to remove governmental abortion restrictions, but to cause the government to actively promote abortion.  Observe the statements of this Spanish gynecologist, quoted in the article:

“Women who want an abortion should be given one without them having to pay for it or seek medical permission,” said Spanish gynaecologist Josep Lluis Carbonell. “We are fighting for a woman’s right to choose and for the same respect to be given to her in Spain as it is already across Europe.”

For many pro-choicers, it is simply not enough that women be given almost carte blanche to abort; moral objectors must also be forced to pay for the murders they find so reprehensible through tax-subsidized abortion.  That should be a cause of grave concern should Barack Obama be elected President.  Assuming, for the sake of argument, that there would be no change in abortion law under an Obama presidency vs. a McCain presidency (e.g., that Roe would not be overturned even by McCain appointees to the Supreme Court), there would still be one major difference between the administrations of the two men.  Under Obama, it is far more likely that federal dollars would be used to subsidize abortion, which would mean our forced subsidization of an act we find abhorrent and murderous.

Finally, despite Spain’s relatively strict exceptions for legal abortion -

Legal terminations are only allowed until the 12th week of pregnancy in cases of rape or until the 22nd week in cases of severe foetal malformation.  But there is no time limit on abortions if there is a risk to the mother’s physical or mental health.

- the “mental health” exception turns out to be, once again, the exception that swallows the rule:

Over the last decade the number of abortions performed in Spain has doubled to 100,000 a year.The vast majority of those are carried out in private clinics after determining an alleged risk to the mother’s mental health, something that opponents say is a blatant abuse of the law.

I recall Obama’s statement defending the mental health exception in which he stated that it is a caricurature to assume that women would get an abortion simply because they had a “bad hair day.”  Obama is, of course, correct.  Women don’t procure abortions simply because they feel blue; many women procure abortions because they simply don’t want that inconvenient life, and purporting “feeling blue” is the legal loophole that allows it.

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Political Affiliations of Ohio Appellate Panel in Roe v. Planned Parenthood Southwest Ohio Region Thursday, Oct 16 2008

I’ve casually noticed a correlation between a judge’s vote on an abortion-related case and his or her political affiliation.  I’ve not yet done an empirical study (although I plan to eventually).

But, in full disclosure, I’ll publicly note that the appellate decision in Roe v. Planned Parenthood Southwest Ohio Region defies this correlation.  The panel judges were

1. Mark P. Painter (author of unanimous opinion)
2. Lee H. Hildebrandt, Jr.
3. Penelope R. Cunningham

And all three are … Republicans.  Now, all three are from Ohio’s 1st Judicial District, which comprises only Hamilton County.  Because all six judges in the 1st Judicial District are Republicans, I wondered if the district were simply so conservative that a judge had to run as a Republican in order to have any chance of winning.  If so, that would mean that these judges’ listed political affiliations might be meaningless.  However, according to voting records, in 2004, Hamilton County voted for Bush over Kerry by only 50.82% to 48.70% - hardly a conservative bastion.

Related Posts:

1. More Information About the Ohio Supreme Court Abortion Records Case
2. This Passes for Objective Journalism?
3. Interesting Abortion Records Case in the Ohio Supreme Court

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More Information About the Ohio Supreme Court Abortion Records Case Monday, Oct 13 2008

I discussed in a previous post the Ohio Supreme Court case currently pending in which parents of a 14-year-old girl, who obtained an abortion without their consent, are suing Planned Parenthood and are asking to view redacted records of the clinic to see whether Planned Parenthood has systematically disregarded parental notification laws.  I managed to find some more official information, for those interested.

• The case number is 2007-1832, and the full case name is John and June Roe, Individually and as parents and next friends of Jane Roe, a minor v. Planned Parenthood Southwest Ohio Region, Roslyn Kade, M.D., and John Does 1-6.
• The opinion for the prior Ohio Court of Appeals decision, which held that these records were not discoverable, may be found here.
• The Appellants’ (parents’) merit brief for the Ohio Supreme Court may be found here.
• The Appellee’s (Planned Parenthood’s) merit brief for the Ohio Supreme Court may be found here.
• Various amicus briefs may be found here.

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Related Posts:

1. Interesting Abortion Records Case in the Ohio Supreme Court (10/10/08)
2. This Passes for Objective Journalism? (10/11/08)

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Constitutional Challenge to the Oklahoma Pre-Abortion Ultrasound Requirement Sunday, Oct 12 2008

According to the Associated Press, the “Center for Reproductive Rights” filed suit Thursday, challenging the constitutionality of an Oklahoma law that “prohibits a woman from getting an abortion unless she first has an ultrasound and the doctor describes to her what the fetus looks like.”

The ultrasound law is actually just one part the larger (much larger) Oklahoma Freedom of Conscience Act, which has thirteen other abortion-related sections.  There’s some great stuff in that Act, and I’ll try to serialize analyses of the other sections over the next few months.

For now, here’s the pertinent text of the ultrasound section:

B. In order for the woman to make an informed decision, at least one (1) hour prior to a woman having any part of an abortion performed or induced, and prior to the administration of any anesthesia or medication in preparation for the abortion on the woman, the physician who is to perform or induce the abortion, or the certified technician working in conjunction with the physician, shall:

1. Perform an obstetric ultrasound on the pregnant woman, using either a vaginal transducer or an abdominal transducer, whichever would display the embryo or fetus more clearly;

2. Provide a simultaneous explanation of what the ultrasound is depicting;

3. Display the ultrasound images so that the pregnant woman may view them;

4. Provide a medical description of the ultrasound images, which shall include the dimensions of the embryo or fetus, the presence of cardiac activity, if present and viewable, and the presence of external members and internal organs, if present and viewable; and

5. Obtain a written certification from the woman, prior to the abortion, that the requirements of subsection B have been complied with; and

6. Retain a copy of the written certification prescribed by paragraph 5 of this subsection. The certification shall be placed in the medical file of the woman and shall be kept by the abortion provider for a period of not less than seven (7) years. If the woman is a minor, then the certification shall be placed in the medical file of the minor and kept for at least seven (7) years or for five (5) years after the minor reaches the age of majority, whichever is greater.

The provision also makes clear that the woman is not required to actually view the ultrasound:

C. Nothing in this section shall be construed to prevent a pregnant woman from averting her eyes from the ultrasound images required to be provided to and reviewed with her. Neither the physician nor the pregnant woman shall be subject to any penalty if she refuses to look at the presented ultrasound images.

I’ll try to post some analysis of this ultrasound provision in a future post, but for now I’ll just express my surprise that the suit was brought in state, not federal, court.  Surely the action would have fallen under federal jurisdiction, since it involves a federal constitutional question.  And if the plaintiffs were worried about ending up with a conservative trial judge or appellate panel, then the chance of that would seem to be far more likely in conservative Oklahoma (conservative enough to pass the Act over Governor Brad Henry’s veto) where judges are popularly elected.

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This Passes for Objective Journalism? Saturday, Oct 11 2008

Further to the Ohio Supreme Court case I posted on yesterday, Julie Carr Smyth of the Associated Press writes:

Ohio Supreme Court justices appeared skeptical Tuesday that an abortion clinic’s medical records on other patients are relevant to a lawsuit brought by parents of a 14-year-old girl who had an abortion without their consent.

Lawyers for the girl’s family argued that the information they seek is necessary to prove that Planned Parenthood of Cincinnati had a pattern of violating Ohio’s parental consent law and failing to report abuse. The unusual case pits a single plaintiff against the privacy interests of a decade’s worth of patients.

Excuse me?  “The unusual case pits a single plaintiff against the privacy interests of a decade’s worth of patients”?  First of all, as I noted in my last post, the plaintiffs are seeking highly redacted records that contain no identifying information.  I think the “privacy interests” argument is tenous at best.  But could this sentence summarize the case in a more prejudicial manner?

Then there’s this gem at the end of the article:

Abortion rights foes — including Jack Willke, former president of the National Right to Life Committee, Cincinnati-based Citizens for Community Values and Republican members of Ohio’s congressional delegation — have lined up behind the family in the case.

Opposing the release of the records are the American Medical Association and a dozen associations representing domestic violence victims, obstetricians, gynecologists, pediatricians, psychologists and other medical professionals.

Could Smyth not have simply used the terms “abortion foes” or “pro-life advocates”?  The term “[a]bortion rights,” it seems to me, pretty clearly takes a position on what is, after all, a hotly contested issue.  I’d prefer to come to my own conclusion without your subtle help, Ms. Smyth.  Please, just the facts, ma’am.  Couple that with people who are “foes” of these putative “rights,” and it’s pretty clear who the bad guys are here.

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Interesting Abortion Records Case in the Ohio Supreme Court Friday, Oct 10 2008

According to the Cincinnati Enquirer, this week the Ohio Supreme Court heard oral arguments in a case in which plaintiffs are seeking limited access to Planned Parenthood’s records on women who come there for abortions.

The lawsuit involves a 14-year-old girl from St. Bernard, “Jane Roe,” who got an abortion in March 2004. The father was her 21-year-old soccer coach.

The girl’s parents are seeking punitive damages against Planned Parenthood of Southwest Ohio for failing to report suspected child abuse. The parents appealed their case to the state’s highest court to obtain statistics and other patients’ medical records that they think will support their complaint.

Their daughter got an abortion and a sexually transmitted disease, yet her relationship with the coach continued several more weeks, according to her parents’ attorneys. The parents allege Planned Parenthood failed to obtain their consent for the abortion.

In other words, a 14-year-old obtained an abortion at a Planned Parenthood center.  Yet, the parents alleged, PP failed to obtain their consent before performing the abortion, as required by law.  PP also failed to report suspected child abuse, since the girl was obviously a minor.  Now, the parents are suing PP and, to bolster their case, want access to PP’s records in order to show a systemic pattern of failing to protect minors seeking abortions.  Planned Parenthood, of course, objects that the information would be irrelevant and that granting such access would violate the privacy rights of the women (or girls) to whom the records pertain.  The parents contend that no one’s privacy would be comprised, as they need only three pieces of information for each abortion: (1) the girl’s age, (2) whether she had a sexually transmitted disease, and (3) whether she entered the clinic pregnant.  All other information, including names, would be redacted.

I haven’t had a chance to read the appellate or amicus briefs yet, but I simply fail to understand how obtaining this information would compromise anyone’s privacy.  There would be no identifying information on the records.  None.  I also suspect that Planned Parenthood is fighting this tooth and nail because their records likely would show that they have not abided by the law with respect to minors.  In fact, I have heard story after story about Planned Parenthood’s exploiting young girls in this way.

Of course, I desire for this blog to be factual and accurate, and therefore must concede that I don’t have any empirical evidence (at this point) for this belief, only anecdotal.  But that only begs the question: how can empirical evidence be assembled to show systemic illegality when Planned Parenthood and other organizations invariably pull out the heavy legal artillery whenever information is requested of them?  And not only for suits like this.  Planned Parenthood has fought similarly to invalidate laws that require abortion centers to report only the most basic of abortion statistics.  See, e.g., Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 976-77 (discussing a Pennsylvania law, challenged by Planned Parenthood that required each abortion facility that received state funds to file quarterly reports stating the total number of abortions performed, broken down by trimester).

I would like to see a victory for the plaintiffs in this case, but, I admit, I’m not too confident.

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The Freedom of Choice Act Thursday, Oct 9 2008

In 2007, speaking to the Planned Parenthood Action Fund, Barack Obama, that great uniter of opposing viewpoints, who vacuously claimed that we could all agree on wanting to reduce the number of abortions, vowed that the first thing he’d do as President would be to sign the “Freedom of Choice Act.”  What is the Freedom of Choice Act (FOCA)?  It’s a law – actually, just a bill right now – that would almost completely wipe out abortion restrictions in all 50 states.

The actual teeth in the bill may be found in section 5, which reads:

(a) STATEMENT OF POLICY- It is the policy of the United States that every woman has the fundamental right to choose to bear a child, to terminate a pregnancy prior to fetal viability, or to terminate a pregnancy after fetal viability when necessary to protect the life or health of the woman.

(b) PROHIBITION OF INTERFERENCE- A government may not–

(1) deny or interfere with a woman’s right to choose–

(A) to bear a child;

(B) to terminate a pregnancy prior to viability; or

(C) to terminate a pregnancy after viability where termination is necessary to protect the life or health of the woman; or

(2) discriminate against the exercise of the rights set forth in paragraph (1) in the regulation or provision of benefits, facilities, services, or information.

(c) CIVIL ACTION- An individual aggrieved by a violation of this section may obtain appropriate relief (including relief against a government) in a civil action.

First of all, you have to commend Barbara Boxer and other sponsors of the bill for aiming to protect the right of women to bear children. It’s about time we did something about all those compulsory sterilization and maximum offspring laws out there.

But seriously, the bill aims to accomplish essentially four things:

1. It’s trying to liberalize the right to pre-viability abortions in some way.  I’m tempted to say that it aims to remove any and all obstacles to pre-viability abortions – e.g., waiting periods, informed consent, parental notification, etc. – but it says that states cannot “deny or interfere” with this right.  I suppose one could make an argument that some of these restrictions don’t rise to the level of “interfere[nce].”  Still, if “interfere[nce]” means nothing more than an “undue burden,” then the law would accomplish nothing beyond what the Supreme Court has already held with respect to how much states may burden the right to abortion.  And if there’s anything we can be pretty sure of with respect to this bill’s sponsors, it’s that they want to go much further than the Supreme Court has in liberalizing abortion.  So, probably the best take is that the bill’s sponsors aim to remove any and all obstacles to abortion in this provision, even though the wording may be slightly (and only slightly) ambiguous on this point.
2. It aims to reverse the Supreme Court’s decision in Gonzales v. Carhart, which upheld a partial-birth abortion restriction that did not make an exception for the “health” of the mother.  This law would either prevent states from enacting partial-birth abortion restrictions, or it would so neuter them as to make them ineffective.
3. It seeks to reverse a series of Supreme Court decisions holding that government may choose to fund childbirth but not abortion.  The law would mandate that if any state provides state subsidies for childbirth (and all states do), it would also have to provide subsidies for abortion.
4. It seeks to create a federal cause of action so that if one suspects that a state is not perfectly conforming to the law (e.g., not providing “sufficient” subsidies for abortion), one can initiate a civil suit against the state (provided one has standing and, I presume, the suit is not for money damages, which would be prohibited by the Eleventh Amendment).

There’s a lot to talk about with respect to the FOCA.  But, for now, I’ll just post the text of the Senate Bill (there is a similar House Bill) and point out the pertinent provisions.

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The “Biden Fallacy” Monday, Oct 6 2008

Probably most of us are familiar by now with Obama’s infamous (and cowardly) response—”answering that… is above my pay grade”—to the question, “At what point does a human baby get rights in your view?”

According to a recent story in the Associated Press (OK, not so recent; I just now got around to finishing this post, after starting it weeks ago), Joe Biden, in an attempt to walk the tight-rope of appeasing people on both sides of the abortion issue, made a nearly perfect invocation of what I will now call the “Biden Fallacy.”

Asked a similar question, Biden answered,

I’m prepared as a matter of faith to accept that life begins at the moment of conception. But that is my judgment.  For me to impose that judgment on everyone else who is equally and maybe even more devout than I am seems to me is inappropriate in a pluralistic society.

The problem with this line of reasoning is that it mistakes a sufficient condition for a necessary condition.  For many people, their faith is the guiding principle for why they oppose abortion.  Their faith alone gives rise to their position on abortion, and for that reason it is a sufficient condition for a pro-life stance.  But it is certainly not a necessary condition.  One can have a pro-life stance for a number of different reasons.

Take Allen Atheist, for instance.  Perhaps Allen is a microbiologist who opposes abortion because he is convinced from a scientific standpoint that life begins at conception.  Or, perhaps Allen is a member of PETA, whose staunch animal rights activism has led him to the conclusion that human fetuses are also deserving of protection.  Or, perhaps Allen is a member of the NAACP who, while not believing that life begins at conception, is disturbed by the disproportionate number of black children aborted, and sees the only solution as banning abortion altogether.  Or, perhaps Allen is an environmentalist who believes that the world is undergoing massive, catastrophic cooling, and the only thing that can save the planet is billions of more people daily exhaling carbon dioxide.  In other words, there can be any number of sufficient reasons for a person to oppose abortion.   One need not derive his position from religion.  It may be a sufficient condition, but it is by no means a necessary condition.

That is where Biden confuses the matter, either intentionally or unintentionally.  Biden would have us think that simply because one can come to a pro-life position based on religious belief, one must have that religious belief to be pro-life.  As though the only reason one would oppose abortion is out of religious committment, and as though, in order for government to protect unborn life, it would have to impose a religious viewpoint on others.  Not quite, Joe.

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What is the Abortion Right? Monday, Oct 6 2008

What does it mean to have the right, constitutional or otherwise, to have an abortion?  Where does that right come from, and how far does it extend?  This is a question that has intrigued me as I have studied the Supreme Court’s abortion jurisprudence and as I have read various arguments coming out of the pro-choice camp.  The answer to that question has been anything but clear.

Take, for instance, the implications of the Born-Alive Infants Protection Acts (BAIPAs), both federal and state, which I have discussed at length.  If the right to have an abortion means nothing more than the right to end an unwanted pregnancy, then doing everything possible to save the life of the fetus/infant, once he is out of the mother’s body, does not impinge upon that right.  For that matter, there should be no constitutional problem with, say, a law that required that the fetus/infant be delivered intact and living for every abortion and that all reasonable measures be extended to save the life of the delivered child.  And, if technology were so advanced that an unborn child, at any stage of development, could be safely transplanted from her mother’s womb into an incubator in which she could fully develop (think Brave New World), then that too would seem to not affect the abortion right.

However, as opposition to the BAIPAs intimates, many do not regard the abortion right as simply the right to end an unwanted pregnancy.  Instead, they view the abortion right as, or extending to, the broader right not to beget a child at all – i.e., the right not to reproduce.  Under this view, it would not be enough if a conceived embryo or a more developed fetus could be safely and easily removed from his mother’s body and brought to term elsewhere.  The problem is that the child would be born at all.

Is that the abortion right?  Well, once again, the Supreme Court has been anything but clear.  As anyone who has studied constitutional law knows, Roe v. Wade did not simply spring from nowhere.  Roe was  preceded by a string of cases that first established the modern “right to privacy” as the right to use contraception (and, in one case, the right not to be compulsorily sterilized).  And that right to contraception was predicated upon a right to choose not to have children if one didn’t want to have children.  That, in and of itself, is not necessarily objectionable.  As an entirely abstract matter, people should have a right to choose not to have children.

The issue, however, becomes how far that right not to reproduce extends.  At one extreme, we can all agree that the state should not be able to force anyone to have children  – e.g., by mandating sex and pregnancy.  In the middle, is the question of whether, if people make the private decision to have sex, they have a right to prevent conception by using contra-ception.  Although some people do not believe in this right, often for religious reasons, I think most people are willing to agree to disagree.  There haven’t exactly been marches in the streets protesting non-abortifacient contraceptives.  But at the other extreme, many people contend that the right not to reproduce covers not only the right to avoid conception, but the right to undo conception.

That is why the Roe opinion’s citation of previous contraception decisions should raise an eyebrow.  Observe.

Several decisions of this Court make clear that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. Loving v. Virginia, 388 U.S. 1, 12; Griswold v. Connecticut, supra; Pierce v. Society of Sisters, supra; Meyer v. Nebraska, supra. See also Prince v. Massachusetts, 321 U.S. 158, 166; Skinner v. Oklahoma, 316 U.S. 535, 541.  As recently as last Term, in Eisenstadt v. Baird, 405 U.S. 438, 453, we recognized “the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” That right necessarily includes the right of a woman to decide whether or not to terminate her pregnancy. “Certainly the interests of a woman in giving of her physical and emotional self during pregnancy and the interests that will be affected throughout her life by the birth and raising of a child are of a far greater degree of significance and personal intimacy than the right to send a child to private school protected in Pierce v. Society of Sisters, 268 U.S. 510 (1925), or the right to teach a foreign language protected in Meyer v. Nebraska, 262 U.S. 390 (1923).” Abele v. Markle, 351 F.Supp. 224, 227 (Conn. 1972).

Roe v. Wade, 410 U.S. 113, 169-170 (1973).

The Roe Court could have just said, “A woman has a constitutional right to end a pregnancy.”  That would have logically followed from the Court’s extended discussion about the health risks involved in carrying a child to term and the Roe trimester framework that grew out of those health risks.  But the decision to ground the right to abortion in the right not “to bear or beget a child” has disturbing implications.  If that right extends throughout pregnancy, then to simply safely remove the child from the mother’s body is not enough; the child must also die.  If that right extends beyond pregnancy, then at least some type of right to infanticide must necessarily exist as well.

Power often inheres in ambiguity.  A government agency whose powers are loosely and unclearly defined will almost certainly resolve every ambiguity in favor of greater power for itself.  Likewise, we cannot expect to curtail the “abortion right” until we first clearly define what it is, and most importantly, what it is not.

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