Sunday, November 3, 2013

Would it be constitutional for the federal government to ban abortion?

A friend of mine is ardently pro-life. Yesterday, Ron Paul came to our school to give a talk, which was followed by a Q&A session from members of the audience. My friend asked Dr. Paul (who is also pro-life, but believes it should be left up to the states) about his views on abortion, and then posted his reply on Facebook as evidence that liberty cannot exist unless the right to life (as he defines it) is protected. One of his pro-life friends commented that Ron Paul's stance was insufficient, because he rejected federal legislation as a means of implementing pro-life policies, writing:

Pro-Life guy - "I think we should change the culture and the laws on a federal level and a state level, while I think Ron would say let's change the culture and some laws on a state level just not on a federal level. I mean, a
rguably, we shouldn't make contract laws, we should just change hearts and minds and souls and people will follow contracts. Honestly, if it was merely a question of changing hearts, minds, and souls, we wouldn't need any government because everyone would be good moral people. Ultimately, both the culture and the laws must be changed, and certainly they are intertwined."

I replied "
which of the Federal government's enumerated powers, if any, would you claim justifies them to prohibit abortion? If you can't find one, perhaps you could advocate a constitutional amendment, but I highly doubt you'll find a high enough majority to do that. Better get cracking on that hearts and minds stuff."

This is a transcript of the debate that ensued, which covered a wide range of interesting constitutional topics. As always, I've concealed the names of the other participants to protect their privacy. I've distinguished between my friend and the random guy who commented on his thread by calling them "Pro-Life Friend" and "Pro-Life Guy", but for our purposes their ideas were close enough to be considered the same adversary.

Pro-Life Friend: I would argue that the 14th amendment would suffice to grant such a power, coupled with a congressional act defining what constitutes a person. Senator Rand Paul introduced such a bill in March of this year.

Me: That’s a decent argument, but humor me on this analogy.

Imagine Congress were to pass a law which defined the word “commerce” in a way which, while plausible, is by no means obvious. Imagine their definition is more expansive than the one whi
ch generally comes to mind when we hear the word commerce, and that Congress defined it thusly for the purpose of widening their regulatory powers over things we might not historically consider federal matters. Of course, the courts might overrule them and strike these powers down. But even if the courts permitted these laws, wouldn’t this be problematic from the originalist perspective we often agree on in class?

When the people consented to grant the federal government the power to regulate commerce “among the several states”, it is highly dubious that they envisaged that word to include restrictions on growing wheat in their own back yards (see Wickard vs. Filburn, 1942). For the federal government to pass such laws anyway on mere majority support, without clearing the constitutionally mandated threshold for a constitutional amendment that officially clarifies the language, would be to exercise powers to which many citizens never subjected themselves.

So it is with the word person. If I handed someone a pencil, and told them to draw me a person, it’s highly unlikely they would draw me a picture of a fetus – outside the abortion debate, it’s simply not what comes to mind. Whether or not it SHOULD be included in that definition morally is a separate issue from whether the framers MEANT it to be included historically. And in the context of the 14th amendment’s Reconstruction era passage, I find very little evidence that this is the sort of power the people meant to bestow upon the federal government.

I agree with you that Roe vs. Wade is a ridiculous decision. But it is one thing to say the 14th amendment permits the states to ban abortion, and quite another to say it mandates them to do so at Federal behest. In class you often trumpet the advantages of federalism and the importance of the 10th amendment, so I’m sure you see that distinction.
Pro-Life Guy: Not to mention the fact that it is the basic function of the federal government to provide for the common defense and the security of the rights of all our citizens equally. As long as the unborn fall under our definition of "person", they are privileged to all the rights and securities that every other citizen is privileged too. The same argument would apply to any scenario where a human being was being deprived of life without due process under the law, if it was determined that children had the right to euthanize their parents at a certain age, there is perhaps no specific clause within the Constitution (outside the 14th amendment) to prevent that law, the authority is inherent in the language. Any social compact in the social contract theory gives the government the duty to protect the rights of life, liberty, and property of its citizens.

you are correct that providing for the common defense is one of the purposes of the federal government laid out in the constitution's preamble, but Congress can only pursue those objectives by carrying out the specific tasks granted to it. That's the entire purpose of a government with enumerated powers: Congress can provide for the common defense, but it can't do whatever it likes for that purpose, only those activities which are listed in Article I, Section VIII.

"if it was determined that children had the right to euthanize their parents at a certain age, there is perhaps no specific clause within the Constitution (outside the 14th amendment) to prevent that law" - exactly, which is why the federal government shouldn't make laws on such matters. The states should. Unless it occurs in a national park or the city of Washington DC, murder itself is a state crime, tried in state courts. If your contention is that abortion is murder, it should be defined at the state level.

"Any social compact in the social contract theory gives the government the duty to protect the rights of life, liberty, and property of its citizens." - Once again, only within the specific powers granted in the compact. If it could exercise any power it liked so long as it were loosely pursuant to those ends, the constitution would be very short, because all it would need to do is say so.

Pro-Life Friend: I've actually been thinking about it more, and the clause "born and naturalized...and subject to the jurisdiction thereof" is now seeming to me problematic for passing such a federal law defining personhood (and thus banning abortion) for the simple reason that it specifies "birth" as a criterion. Perhaps a constitutional amendment would be necessary to justify such a federal law after all.

Me: To be fair, ******, your earlier case is strengthened by the fact that "born or naturalized" is used only as a condition for citizenship, and that of the three subsequent clauses, only the first limits its protections to the "citizen" as opposed to the "person." So if you tried to use the privileges and immunities clause, you're right that would be problematic. But I think the fact they chose to use the word "person" instead of citizen in the equal protection clause could be cited as evidence they wanted equal protection for non-citizen people as well.

Pro-Life Friend: Ah yes, I overlooked that. "nor shall any state deprive any person of life, liberty, or property, without due process of law; " means not only citizens. In other words, you can't murder illegal immigrants or what not, so this also could apply to the unborn if the definition of personhood is clarified in light of modern science. So in that case, I reverse, my reversal. An interesting question to look into would be to ask what the framer's view of when personhood begins, or if they would have even discussed it. I know embryology and the science of fetal development wasn't hammered out yet. But consider: If the framers said all turtles (for example) shall be protected and years later, science led to the realization that some species of frogs were in fact turtles all along, then could those former frogs be protected as turtles? A wierd analogy, but I think *******'s point holds in this regard.

Pro-Life Guy: And yet, we do not operate under the Articles of Confederation nor the 10th Amendment run amok system that Ron Paul suggests. If I asked you to draw a person, it's unlikely you would draw them black, or old, or missing one limb. Does that mean that someone missing a limb is not a person because its not the first thing you draw? The framers did not include blacks in their meaning for person, does that mean that blacks do not have natural rights without the 14th amendment? Are our rights derived from the Constitution or from God? The unborn have a natural right to life as anyone else, the question is whether we chose to recognize that and grant them the same protections as other citizens or not.

Me: you are correct our rights do not come from the constitution, but we are not arguing about whether a fetus has a right to life. We are arguing about the relative broadness of the federal government's constitutional powers. Nor am I even arguing that a fetus is not a person. I'm merely arguing that unlike a black person or a crippled person, it is not obvious or unquestionable that a fetus is a person - as I'm sure you know, there is much heated debate on the subject. Furthermore, I am arguing that in order for any exercise of federal power to be legitimate, the people's consent to the grant of that power must be relatively clear from the constitutional text they cite for their authority. It seems to me the people never clearly consented to the exercise of the Federal power you would subject them to.

Pro-Life Guy: How you define a person though must be a federal responsibility. How can you have a fetus who is a human being with rights and protections in Ohio and when he crosses into Illinois he is no longer a person with rights and protections? Even non-citizens have rights and protections according to the natural law when they are within our borders. This cannot be a state by state issue, any more then slavery could. Stephen Douglas argued for popular sovereignty with slavery, while Lincoln said that it makes slavery a relative preference rather then a moral absolute. Are we to do the same with abortion? Leave it to legal preferential relativity rather then say that it is a moral absolute? Aquinas spoke of when the human was conceived, but I do not think the founders imagined that we would establish murdering your child as a right. I think they would have viewed it as a gross violation of the social contract (the government allowing one citizen to violate the rights of another, the majority persecuting the minority). I ask this, I know that the federal government does not have any murder laws, but would it be unconstitutional if they did?

Me: Whether something is legal says nothing about whether it is moral. Permitting each state to set its own moral standards says nothing about which set of moral standards is preferable. There may well be a moral absolute, and some states may well be violating it. But seeing as nobody can agree on what that moral absolute is, and each side thinks the other is the one violating it, federalism maximizes the number of people who are able to get their way. As it applies to your example, the actual, natural, God-given rights of a fetus/woman would not change when that fetus/woman crosses state boundaries, even if the state's recognition and protection of those rights did. In that case, one or both of the states may be morally wrong. Lincoln said that slavery was an absolute moral wrong no matter where it took place, but even he didn't believe he had the constitutional power to abolish it during peacetime. The Emancipation Proclamation was only justified as a temporary wartime measure, and when the war ended it did indeed require a constitutional amendment to make it illegal.

Pro-Life Guy: To that point, I would argue that it is fairly evident in the Constitution (especially in light and context of the Declaration of Independence and the context of social compact theory of Locke) that the government is being granted the right to defend life and liberty, not without limit, but certainly violations against common law. Common law applications such as laws against murder or rape, do not need to be spelled out, they are inherent social compact rights. I think it is evident that a fetus is a person, when someone is pregnant, people don't ask "how is the fetus doing?" or "what is the fetus going to be?" or "is it a person or not"? This question is certainly not relative (based on whether the woman wants the child or not) and there is no scientific evidence that the fetus is not a person, but there is plenty that it is. The only people who deny their personage are those attempting to rationalize abortion. Abortion is not founded on a belief that they are not people, the belief that they are not people is founded on abortion. Their natural right to life is protected under the Constitution in context and I would argue that passing a law banning abortion is perfectly justified by a natural law based government (which I would argue was the founder's intent)

Me: ******* says "it is fairly evident...that the government is being granted the right to defend...violations against common law", and that these violations "do not need to be spelled out." - I think this is the heart of our disagreement. I strongly believe that the federal government cannot do anything besides what is spelled out for it to do in the constitution, because that document is the only source of their authority - the only thing that gives congressmen any more power than you or I. To answer your earlier question, no: outside the military and the oceans and what happens on federally owned lands, I don't think prosecuting murders is a federal prerogative.

Instead, it is a state prerogative, because the states are another matter entirely. Their powers are not enumerated, and according to the 10th amendment, they can do pretty much whatever they like so long as it's not expressly prohibited. This is why what you call "common law violations" like murder and rape are defined and prosecuted and enforced at the state level, often with varying legal standards and punishment across state borders. The morality of the death penalty may be a moral absolute, but not everyone agrees on that, so some states use it and others don't. So it was with abortion until Roe vs. Wade. Even if it's obvious that the defining and defending natural rights was a primary purpose of government, it doesn't answer the question of WHICH government. Thankfully, the constitution does.

"Their natural right to life is protected under the Constitution in context and I would argue that passing a law banning abortion is perfectly justified by a natural law based government (which I would argue was the founder's intent)." - You say this as if everyone agrees on what "a natural law based government" consists of. But pro-choice advocates can cite natural law every bit as much as you can; women are naturally endowed with the property of their own body and the liberty to do with it as they please to the extent that they don't harm others. There is not even a remote consensus about at which point a fetus becomes someone else's body, instead of a part of their own. The framers were not naive enough to believe that the application of natural law was self explanatory, which is why they didn't write a constitution that just said "the federal government can do whatever is necessary to defend natural law." The states would have balked at such a constitution, because they didn't want to be bound by the interpretations of non-residents. So instead, the framers wrote a limited grant of power which specifies precisely what the federal government can and can't do, and left the remainder of the governing decisions to the states, knowing full well that some states might interpret our natural rights differently than others.

Pro-Life Guy: I think this may be at the heart of textualist versus contextualist. While I am going to attempt to find textual evidence to support an abortion ban, I would also say this. The reason the founders avoided any language to be placed in the Constitution about the authority of defining a human person has a couple of different reasons. The first is that they did believe that over time the state's would step up and protect human rights such as in the slavery case. They were proved wrong and it has become evident that a state government can easily become just as tyrannical as any federal government if not more so (New York for example). Secondly, because I believe it is evident both in the federalist papers and simply reading through Social Compact thinkers that certain premises are taken for granted. The primary premise is that men are endowed with inalienable rights to life, liberty, and property and the primary function of government is to protect those rights. Lincoln has a beautiful piece called the golden apple and the silver frame that is a quick five minute read and I think puts the situation correctly. The Declaration of Independence/our principles are the picture of the golden apple and our constitution is the silver frame. The silver frame exists not for its own sake, but for the sake of the golden apple. Thee constitution exists not for its own sake, but for the sake of the principles that it protects. The fundamental principle guiding our entire American thought is that we are endowed with the natural rights to life, liberty and property. If the Constitution is failing to protect these things, the Constitution is failing as is our government. Our government's prerogative is to protect our lives, our liberty, and our property.

Me: "The fundamental principle guiding our entire American thought is that we are endowed with the natural rights to life, liberty and property. If the Constitution is failing to protect these things, the Constitution is failing as is our government."

I a
gree with this. Where we disagree is what to do if the Constitution is failing. I say we should set about fixing the constitution. You appear to be saying we should ignore the framework of enumerated powers, and grant Congress the power to do almost anything that a majority feels will protect our ill-defined rights.

Pro-Life Friend: What did the framers of the 14th amendment mean by "person"---that is the question. And can the word "person" be expanded in light of science and the philosophy of the Declaration (life, liberty and pursuit of happiness) implicit in the amendment's drafting--so that the the framers' approval of protections of fetal life could be seen as implicit?

Me: ****** 
asks "can the word "person" be expanded in light of science and the philosophy of the Declaration (life, liberty and pursuit of happiness) implicit in its drafting."

No. To alter the terms of a contract after it was signed, without reaffirming the consent of the other party, is to bind the other party by something they never agreed to. Also, scientists may define life differently than philosophers or political theorists even in the modern era, to say nothing of what the word meant in the 1800's.

Pro-Life Guy: Andrew, they are going to define the terms as they so choose their way, and we will define them the right way. We have to stand by our conviction that our stance on natural law and life is true and theirs is untrue. Simply the fact that they are able to redefine the terms and try to twist them into ways they are not meant to be twisted does not make our position any weaker. Stay the course, fight the good fight, finish the race.

Pro-Life Gal, heretofore unheard from in the debate: I am too tired tonight to wade through these arguments tonight, but I feel like I need to point out one obvious point. Ron Paul and others like him tell us that if we truly want to end abortion we need to change the culture. Historically, that is not so. Whether we are talking about the English slave trade, American slavery, or the Civil Rights movement, societal attitudes changed after laws were passed protecting human rights. And on a very pragmatic level, legal=moral for the vast majority of Americans who are not Hopkins students (and maybe some of them as well.) Finally, I would like to ask Paul, just what percentage of the population would we need to become committed anti-abortionists before the legislatures would pass laws? 51%? 78% ? 99%? I guess there are some people with slave ancestors who are pretty glad that abolitionists didn't wait to change the opinions of the whole population before slavery became illegal.

Me: **** brings up an interesting and important point, but I ultimately I think her view is historically wrongheaded and morally dangerous. I wrote a full blog post on just this issue a couple years ago, which you can read here:
. If you're too lazy to read the whole thing, I will include relevant excerpts below.

First, as for why it's historically wrong. The way that slavery became illegal was through a constitutional amendment, which by necessity had to be ratified by a certain percentage of the people's representatives. That portion was higher than 51%, and attaining that level of support did indeed require a deep cultural shift in opinion on the issue of slavery. This shift predated the legal change, and took many decades to build. Abolitionists were once radical, but by the time the 13th amendment passed, their ideas were mainstream. It's true, of course, that they were not unanimous or universal, and that these views continued to liberalize after the law was passed. But the cultural shift began long before that, and there's little evidence that the change in law accelerated that trend. Many more minds were changed by nonviolent persuasion, through books like Uncle Tom's Cabin and the speeches of Frederick Douglass and the dispute about the expansion of slavery into new territories, than by legally mandated opinion.

The same occurred with the Civil Rights Act. I don't think people became less racist because the law told them racism was bad. I think the law changed after enough minds had already changed alongside it, and that those minds would have continued to change whether the law codified those ideals or not.

Meanwhile, other shifts in popular opinion did not keep growing, and were eventually reversed. As I wrote in my blog, "for every lasting shift in society’s moral consensus, there’s been another temporary fluctuation that didn’t last. Take prohibition, or the Know-Nothing Party, or the Trail of Tears, or Jim Crow laws, or the Mexican-American War, or the Japanese Internment camps, etc. Today, we recognize these acts as blunders that were terribly unfair, but at the time they occurred each received some degree of popular support."

If there's any lesson from those disasters, it's that basing policy off the brief whims of a fickle majority is unwise. The native Americans and Japanese-Americans probably did wish that politicians had waited for a greater and more lasting consensus before springing into action.

Now for why Jody's view is morally dangerous. Perhaps it is an overstatement to say that Jody's mindset is the essence of everything that's wrong with government...but I'm gonna say it anyway. Hers is the idea that might makes right; the notion that if she and I have a difference in opinion on some moral issue, she is justified in forcibly imposing her will on me through the middle man of government. This unwillingness to live and let live is the definition of intolerance, and it is the antithesis of individual liberty and personal choice. From taxes and wealth redistribution on the left, to abortion and gay marriage on the right, each party attempts to make the entire world comply with their highly subjective moral code, and the result is that everyone ends up oppressing everyone else. The government is not an omnipresent moral arbiter; it is merely an opinion with a gun. The sooner Americans realize that, the freer they will be.

Morally, I don't have an answer for what level of consensus justifies government action in the abstract. But practically, I think the constitutionally stipulated levels for passing a constitutional amendment are a good start.

Pro-Life Friend: A lot's going on here for sure, and can't respond to all of it over facebook in a timely manner, but let me just go ahead and quote Justice Blackmun from the Roe v Wade decision (you've seen this I'm sure):

"The appellee and certain amici argue that the fetus is a ‘person’ within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the (Fourteenth) Amendment."

I disagree that the framers had to have the direct intention of included fetuses for the language to be inclusive of them. The meaning of personhood is an abstract category of individuals with the natural inherent capacity to give rise to human functions, whether or not those functions are ever attained in which we can discover the particulars that fit the mold over time. Science and common sense can help us realize when it is that we are dealing with a person by letting us know when we are dealing with a human being, because for rights to be truly innate and God-given, humanity and personhood must go hand in hand, not based on arbitrary lines of size, level of development, environment, or dependency. The framers did not have to include the Inuit peoples as persons even though the Inuits may not have been known to them to exist. And fetuses, whether they were acknowledged as persons by the founders given their current scientific knowledge is irrelevant to whether the amendment allows for federal action in defense of preventing the taking of innocent human life in the womb.

What I find morally dangerous is not people who want to put an end to the killing of the unborn, like Jody or myself, through the passing of all laws possible (at the federal and state level) to do whatever we can to stop the killing and build a consensus as soon as possible within the constraints of the law of course. I agree laws must have something behind them in terms of consensus, but I don't think that should stop prolife politicians in Washington from gettting creative. But I think Ron Paul dilutes the urgency with which the pro-life issue talking about it being a purely state issue (after Roe v Wade made it federal), and when the Congress has power right now to pass laws that can build a culture of life and cripple the abortion industry especially through defunding groups that indirectly get federal funds for abortion like Planned Parenthood. After all Wilberforce passed indirect national laws to end slavery in England so quickly, as part of his building of a consensus against slavery. I think there's a lot pro-lifers can learn from the successes and failures of the slavery abolitionists. "Justice too long delayed is justice denied." " -MLK

Me: You say all "individuals with the natural inherent capacity to give rise to human functions" are persons. Who decided that? You?

"I think Ron Paul dilutes the urgency with which the pro-life issue by suggesting that it should be a purely state issue, when the feds have power to pass laws that can build a culture of life and cripple the abortion industry." - Even if the feds did have that power, and even if legislation can "build a culture" instead of vice-versa, and even if making something illegal did cripple the industry instead of just pushing it undergroud (a la the drug war), that doesn't mean that's how the power would actually be used in practice. Enabling federal legislation on the issue would also enable federal legislation legalizing all abortions in all states, regardless of trimester, overruling any objections by any conservative state. Considering the national mood on social conservatism in general right now, that strikes me as much more likely than a universal ban. Be careful what you wish for.

Under Ron Paul's system, some states could ban abortion even in the absence of national consensus, whereas currently none can. From a consequentialist pro-life perspective, that should be viewed as an improvement.

Pro-Life Guy: One thing in defense of ****, when its a question of defending someone's rights, there is a might element where I may have to use my might in order to protect the right of another human being from someone. 51% is not a magic number where suddenly there is consensus and justification for law.

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