How Killing Became a “Right”

Nearly three decades ago, the U.S. Supreme Court ruled that abortion is constitutionally protected. Ostensibly libertarian, the ruling was actually one of the most tyrannical acts in American history.

What greater power can the state claim than the power to redefine human life itself — to withdraw protection from an entire category of human beings? And what greater power could the Federal Government usurp than the power of the individual states to protect innocent life from violent death?

The pro-abortion movement has been consistent only in its inconsistency. It began by agreeing with its opponents that abortion was wrong, but arguing that abortion, when banned by law, “happens anyway” and could be better regulated — made “safe” — if legalized. Of course this could be said of any crime: murder, burglary, and incest, though banned by law, “happen anyway.” Should they too be legalized?

Later the pro-abortion propaganda apparat took a new position: that when life begins is a “religious” question, beyond the competence of the state to decide. Oddly enough, my Darwinian public-school biology teachers used to answer the question without consulting their Bibles: life began at conception. Frog life, bovine life, human life. But in those days nobody had any axes to grind, so nobody denied or evaded the obvious. “When does life begin?” became a mystery only with the emergence of a political interest in killing the unborn.

Still later, the pro-abortion — alias “pro-choice” — crowd decided that abortion, far from being a necessary evil, was a positive good, which the state should not only tolerate but support, encourage, subsidize, maximize. Taxpayers should be forced to pay for abortions. They should have no more “choice” than the child.

How did the pro-abortion position evolve from the necessary evil position to the positive good position? Easy. The Court arbitrarily ruled that the U.S. Constitution shelters abortion. Did the Court cite any passage in the Constitution saying so? No. Did it find any evidence that the Framers hoped to protect abortion? No. Did it name any justice of the Court, even the most liberal, who had ever claimed constitutional protection for abortion before 1973? No. It merely discovered, all of a sudden, that the abortion laws of all 50 states had been violating the Constitution all along, even when nobody suspected it.

This fantastic ruling generated a new debate about the “original intent” of the Constitution. Liberals argued that “original intent” didn’t matter or was unknowable anyway. The Constitution didn’t have a single fixed meaning; it “evolved” over time. Any interpretation was bound to be more or less “subjective” — yet somehow the Court’s subjective rulings had the binding force of law.

This amounted to saying that the Constitution means whatever today’s liberal interpreters choose to say it means. If that were so, there would be no point in having a written constitution, or for that matter any written law. We would be defenseless against legal sophistry, especially the sophistry of self-aggrandizing power. That’s the perfect prescription for tyranny, the opposite of the rule of law.

Anti-abortion forces thought they had a winning issue when they raised the subject of the agony the aborted child may suffer, as rendered visible in films of aborted fetuses. The pro-abortion crowd replied — when they didn’t just ignore the question — that nobody really knew whether abortion caused pain. But when the issue of late-term (or “partial-birth”) abortion emerged, it transpired that they didn’t care at all whether a fully developed baby suffered when its skull was crushed and evacuated.

The Court agreed. It had originally made quibbling distinctions among first, second, and third trimesters of pregnancy, holding that a state might protect a child in the third trimester, when it had achieved “viability” and was capable of living outside the womb. But now the viability pretext was discarded. Killing the unborn was constitutionally protected at every stage between conception and live birth.

Right from the start, the pro-abortion movement has been defined by shifting arguments, fallacies, evasions, lame excuses, and utter bad faith. The Court has not only acted as part of that movement, but has been its greatest asset, sparing it the need for persuasion by imposing its arbitrary will on the entire United States — and in the name of the Constitution it actually despises.

Joseph Sobran