It's My Body; It's My Right

When we discuss the issue of rights, we need to first distinguish between the natural rights of the individual and legal rights granted by a government.

A natural right is inherent--existing in someone as a permanent and inseparable element or quality. Natural rights are universal (exist in all human beings at all times) and are self-evident (requiring no proof or explanation to be true). They are inalienable--incapable of being withdrawn, surrendered, or transferred.

A legal right (also called an artificial, statutory, or positive right) is one bestowed by a government to its people. It is specific to a culture, time and sitting government; thus, it is subject to change.

Human beings precede governments. Man is social, however, and must interact and contract with other humans within community for sustenance and gain. In doing so, governing structures arise from within a cooperating populace with the intent to protect people's rights as they socialize.

Therefore, the only function of a legitimate civil government should be to protect the already-existing inborn rights of citizens when disputes or threats against these rights occur. But as we know, governments formed by flawed men become centralized centers of expanding greed, deceit, and oppression.

Rather than take full responsibility for self-rule, most people want others to assume that responsibility for them and cover any resulting consequences. Governments become parental, indulging the co-dependent and keeping them dependent on the federal tit.

To keep society's creative individuals and freethinkers dwarfed, the State's parental focus shifts to that of a strict disciplinarian, using stifling rules and regulations to reward compliance and punish self-reliance.

In a society where an individual's inalienable rights to life, liberty, and the pursuit of happiness (property) are protected, there is no need for a complex web of legal rights.

Only the sovereign individual has true rights. Any legal considerations granted to descriptions--race, color, religion, gender, sexual orientation, creed, ethnicity, handicaps, etc.--are privileges that create ill will, artificial classifications, and more problems than they solve.

People with similar distinctions and interests normally associate together. These collectives, recognizing power in numbers, then petition their government for certain rights (privileges and societal powers) because of these shared distinctions.

Inevitably, when a government grants a legal "right" to one group, another collective's place in society suffers, as in the case of affirmative action. Ultimately, the preeminence of individual liberties are diminished and threatened.

The answer does not lie in trying to please everybody with artificially created equality, but in going back to the fundamental, inalienable rights of the INDIVIDUAL as sufficient. A government should refuse to grant legal rights to ANY collective or union of people.

Similarly, we don't have to pass special "hate crime" laws to protect the LGBT community. Our society should recognize that all crimes stem from various forms of hatred. Hate is hate and crime is crime.

Don't single out the LGBT community for special considerations if you're not going to do the same for the elderly who are mugged because they're easy targets or for Down's syndrome girls who are raped. Do you not see the Pandora's Box?

Punish the criminal according to the actual damage inflicted upon the individual and/or his property...not how he thinks.

"A group, as such, has no rights. A man can neither acquire new rights by joining a group nor lose the rights that he does possess. The principle of individual rights is the only moral base of all groups or associations. Any group that does not recognize this principle is not an association, but a gang or a mob . . .

The notion of “collective rights” (the notion that rights belong to groups, not to individuals) means that “rights” belong to some men, but not to others—that some men have the “right” to dispose of others in any manner they please—and that the criterion of such privileged position consists of numerical superiority." --Ayn Rand, The Virtue of Selfishness

That's why inalienable rights are often called negative rights, while legal "rights" are deemed positive. Positive rights permit or oblige action, whereas Negative rights permit or oblige inaction.

In other words, in order for me to exercise my inalienable rights to life, liberty, and the pursuit of happiness (property), no one has to permit or enable me to do so. In fact, they stay out of my way! (The whole purpose of the Constitution and the Bill of Rights is to state what the government CANNOT do as I exercise my natural rights.)

Positive rights, on the other hand, do not exist prior to some sort of contract. They must be initiated and implemented from an outside source for people to take advantage of them; hence, a law and the taxpayer’s money to enforce it. Those wanting legal rights require powerful people in civil authority to grant them. Individuals, however, inherently possess--from the beginning of their human condition--the superior, resident authority to:

• Life: Everyone is entitled to live.
• Liberty: Everyone is entitled to do anything he or she desires, as long as it doesn't conflict with the first right.
• Estate: Everyone is entitled to own all he or she creates or gain through gift or trade, as long as it doesn't conflict with the first two rights.

Against this backdrop of inborn rights, I remain convinced that in the face of the biological evidence, we have no civilized choice but to acknowledge that the single-cell zygote is already a human being; and therefore, a growing person with inherent rights that should not be denied due to the bearer's location, size, or functional abilities.

The person in the womb has a root capacity for functioning (an already existing nature, which is there from the beginning) that enables active capacity--(actual functioning; a right-now demonstration of the root capacity).

For example, you buy a computer because of certain functions it can perform for you; still, once turned on, the computer must go through a series of progressive steps to reach full capacity to execute those tasks. When did the piece of hardware become a real computer...before or after performing its program?

Biological evidence also proves that the single-cell zygote is pre-programmed and self-contained, taking no tissue or blood from the host. He or she needs no outside permission, direction, or intervention to develop fully in the womb. He simply needs to be left alone. The only thing the embryo needs is room (along the uterine wall) and board (shared nourishment).

Which brings us to our next question: What about the inherent rights of the host (mother)?

Many pregnant women say that carrying an unwanted pregnancy to term is tantamount to slavery. Some also claim the right to self-defense against an intruder, thereby justifying aggression against the fetus. Others claim the unwelcome fetus is parasitical, stealing life from the mother.

These claims are serious to the libertarian, whose philosophy centers on non-aggression and freedom from coercion. One person's inalienable right will never conflict with a true, inalienable right of someone else. Although at first a dispute appears to exist, the simple gathering of facts, clarifying boundaries, and the application of sound reasoning will resolve the matter.

Libertarianism does not address morality in general. It addresses only one category of good versus evil: justice versus injustice, non-aggression versus aggression. To violate another's rights is to be unjust.

Libertarianism's basic principle is the obligation not to violate rights. This non-aggression principle is the foundation, the sine qua non, of a moral society. We owe others non-aggression. People who commit murder, theft, kidnapping, rape, fraud, or fail to pay their just debts are aggressors.

Implicit in the non-aggression principle is the right of defense. We have no obligation to allow others to succeed in attacking us before we react. There is a related principle: no one has a right to negligently or intentionally endanger the innocent and then allow the harm to happen.

If we endanger others without their consent, we incur a positive obligation to prevent the harm. This might be called the non-endangerment principle: you endanger them — you protect them from the harm.

Non-aggression is an ongoing obligation: it is never optional for anyone, even pregnant women. If the non-aggression obligation did not apply, then earning money versus stealing it and consensual sex versus rape would be morally indifferent behaviors.

The obligation not to aggress is pre-political and pre-legal. It does not arise out of contract, agreement, or the law; rather, such devices presuppose this obligation. The obligation would exist even in a state of nature. This is because the obligation comes with our human nature, and we acquire this nature at conception.

Each of us has this obligation regardless of contrary personal opinions, consensus, or laws. We have it whether we wish to obey it or not. We have it even when others are not able to defend themselves. This obligation can neither be created nor destroyed. It is logically necessary to the concepts of liberty and property. (Doris Gordon, "Abortion and Rights: Applying Libertarian Principles Correctly" )

Let's look closely at the argument of fetal aggression using the two exceptions to taking another person's life: self-defense and self-preservation:

I. Abortion is not an exercise of the privilege of self-defense, since the unborn child is not an aggressor.

A. Aggression involves an act of will or an act of negligence. It can never arise from an act that is caused by existential forces beyond an individual's control. i.e., there cannot be aggression if human action, in the sense of purposeful behavior, is not involved at all.

B. The creation of the fertilized egg and its attachment to the uterine wall are not "acts" of the unborn child in the sense of being purposeful. They are the result of existential biological forces independent and beyond the control of the child and brought into play by the combined acts of the father and mother.

C. Since the unborn child cannot rationally be held responsible for its own creation, it cannot rationally be held to have committed aggression by coming into -- indeed, being brought into existence. Aggression implies responsibility; and no human being is responsible for his own creation.

D. Since the unborn child is not and cannot be an aggressor, the mother cannot invoke the privilege of self-defense against its continued existence in the one place in which, at that stage in its development as a human being, it is both logically and biologically appropriate for it to be. (Note: Whether the father in a rape situation is guilty of aggression is another matter. In any event, his guilt cannot rationally be imputed to the child.)

II. Abortion is not an exercise of the privilege of self-preservation, since, in the usual case, the mother's life is not endangered by the pregnancy.

A. A privilege of self-preservation arises only in those situations in which the lives of two or more equally innocent persons are in jeopardy, and not all of them can be saved.

B. Pregnancy is not such a situation in the normal case. Were it so in extraordinary cases, the mother would have a privilege to defend her own life through abortion, or to choose to give up her life to save the child (assuming this could be done medically). In such a situation, neither the state nor even the father of the child would have any right or privilege to interfere with the mother's decision.

(Note: Pregnancy complications that threaten the mother's life are extremely rare and continue to decrease with medical advances. The statistics often reported by various organizations in this category primarily reflect such mental health "issues" of the mother as depression, anxiety, and stress--all permissible reasons in the United States for late--term abortions.)

III. In sum, since abortion does not come within the two recognized exceptions to the right to life, and is inconsistent with the right as far as the unborn child is concerned, abortion must itself be a form of aggression repugnant to libertarian principles. (Dr. Edwin Vieira, Jr., "If the Unborn Child is a Person Entitled to Rights, Abortion is Aggression”)

Unwanted, prenatal children have been compared to burglars climbing into windows. Who can possibly believe that the mother is the innocent victim of a crime?

As much as truth rains on our parades, vaginal sex always carries a risk for conception and pregnancy--even among the most careful participants.  NO contraceptive is 100% effective 100% of the time--even when consistently used.

Even the birth control pill’s high rate of effectiveness (but not absolute) can be compromised by the use of antibiotics, anti-seizure and anti-fungal medications, as well as  OTC herbal supplement St. John's Wort. (Source)

The Guttmacher Institute reports that nine out of ten women having abortions claim to use birth control, but confess they do not use it as prescribed.

Overall, 58% of the women having abortions claim a contraceptive failure; 31% had used a method in the past but were not using one during the month in which they conceived, and 11% had never used any method.

The majority of the women among the 42% who were not using a contraceptive method when they became pregnant had most recently relied on either the pill or the condom. Fifty-three percent of prior pill users and 76% of prior condom users became pregnant within three months of stopping use.

By the way, we're not talking about the contraceptive bungling of naive teens. Most women (56%) having abortions are between the ages of 20-24. They are legal adults in an information-saturated country whose government has poured billions of dollars into comprehensive sex education in public schools for years--along with free condom, pills, and instructions--all surrounded by a sexually driven culture whose exploits can be accessed with ease 24/7. In other words, there is no excuse for negligence.

But let's get back to the uterine burglar analogy:

Trespass implies an unjustified interference with the rights of another. It implies some volition on the part of the accused: the "invader" acted intentionally, recklessly, or negligently, and could have avoided the "invasion." Mere presence on another's property, absent more supporting evidence, is insufficient to prove volition.

Who among us could have chosen not to begin life or not to inhabit our mother's body when conceived?

Inhabiting the mother's body is a byproduct of the parents' volitional act, not the child's. What the prenatal child does, she does by necessity. This necessity is also a byproduct of the parents' volitional act.

Conception and pregnancy are foreseeable consequences of even careful sex. By causing children to be, parents also cause them to need support--it's a package deal. When parents mutually enable their sperm and ova to join, the parents are not enslaved -- they've volunteered.

This may put the needs of a parent and child in conflict, but it creates no clash of rights between them. This is because parents owe children support.

Feeding our own children is not merely something we ought to do under morality; it's what we owe them under justice. Parental obligation is not a special obligation, in that acting justly towards everyone else is a universal obligation. Parental obligation does not arise out of contract or because a tort or other injustice was committed. The obligation is, basically, the obligation to avoid injustice in the first place.

Our unalienable rights to life, liberty, and property, can be boiled down to one central unalienable right: to be free from aggression, the initiation of force or fraud. With this right comes the unalienable (i.e., non-optional) obligation not to aggress.

Non-aggression is a negative obligation -- do not hit first. Yet because of it, we can incur positive obligations. For example, we don't aggress by entering contracts; yet, by doing so, we can incur debts. We also can incur debts apart from contract or harming others.

We do this by threatening harm, by endangering others without their consent. If harm results, we not only caused the danger, we caused the harm and initiated force. Since we have no right to initiate force, we have no right to endanger others and then let harm befall them. The principle is: If you endanger them, you owe them protection from harm.

The kind and degree of preventative care we must take depends upon the kind and degree of the risk we've imposed on others. For example, when we drive a car, at the minimum, we must stay alert and drive carefully. Our right of defense gives us the right to prevent drunk drivers from using the road.

Causing a child to be is not, in itself, endangerment (it's a normal, natural fact of life), because the very fact of pregnancy automatically protects the child against the possible dangers of an unsupportive environment. But by conceiving a child, parents give themselves a life-or-death power over her, and they do this without her consent.

If parents intentionally or negligently use their power to put her in harm's way (let her starve, say), they cause the danger. If the child gets harmed, they caused the harm. They initiated force and violated the child's rights. (Doris Gordon, "Comments on Why the Prenatal Child Has the Right under Individual liberty to be in the Mother's Womb")

I would suggest that the general libertarian principle is that when you impose something on someone else without his or her consent, and at your free will, then, yes, you are obligated.

You do incur particular obligations to that particular individual, whether it's somebody that you ran down with your car or whether it's a kid that you brought into the world without their consent. (John Walker, "Why Parental Obligation?")

Again, if the rights of the fetus are inalienable, they will not transgress the true rights of the mother. Inherent rights may interfere with preferences, but never another's rights. Is the fetus legally the property of the mother?

It is a biological fact that the embryo is a human being with 46 chromosomes. Attaching at a suitable place along the uterine wall of his host, the embryo simply grows. There is an exchange of oxygen, nourishment, gases, hormones, and fetal wastes between the separate blood vessels of the mother and fetus. This is accomplished through a remarkable filter that allows for transfers without any mingling of blood.

Remember our premise that two natural rights cannot conflict:

In the early stages of a woman's pregnancy, her body emits a hormone that prevents her immune system from attacking the zygote as a foreign body before he can further develop and build his own protective barrier (placenta).

Her immune system is also proactive in preparing the uterine lining to cope with the inflammation associated with implantation. Interestingly, this hormone, cortocotrophin, is the "master" hormone that commands the body's response to stress. (Source: "Stress Hormone Prevents Mother from Rejecting Embryo" )

Any other foreign body in the host would trip alarms that would rush white blood cells from the immune system to devour the invading organism. But the fetus also emits the same hormone in his distinct immune system to keep Him from rejecting the host and his own developing organs!

Until now, the fetal and infant immune system had been thought to be simply an immature form of the adult system, one that responds differently because of a lack of exposure to immune threats from the environment. The new research has unveiled an entirely different immune system in the fetus at mid-term that is derived from a completely different set of stem cells than the adult system.

"In the fetus, we found that there is an immune system whose job it is to teach the fetus to be tolerant of everything it sees, including its mother and its own organs," said Joseph M. McCune, MD, PhD, a professor in the UCSF Division of Experimental Medicine who is a co-senior author on the paper. "After birth, a new immune system arises from a different stem cell that instead has the job of fighting everything foreign."

The team previously had discovered that fetal immune systems are highly tolerant of cells foreign to their own bodies and hypothesized that this prevented fetuses from rejecting their mothers' cells during pregnancy and from rejecting their own organs as they develop.

The adult immune system, by contrast, is programmed to attack anything it considers "other," which allows the body to fight off infection, but also causes it to reject transplanted organs.

"The adult immune system's typical role is to see something foreign and to respond by attacking and getting rid of it. The fetal system was thought in the past to fail to 'see' those threats, because it didn't respond to them," said Jeff E. Mold, first author on the paper and a postdoctoral fellow in the McCune laboratory.

"What we found is that these fetal immune cells are highly prone to 'seeing' something foreign, but instead of attacking it, they allow the fetus to tolerate it."

The previous studies attributed this tolerance at least in part to the extremely high percentage of "regulatory T cells"- those cells that provoke a tolerant response -- in the fetal immune system. At mid-term, fetuses have roughly three times the frequency of regulatory T cells as newborns or adults, the research found. (Source: "Human Fetal Immune System Arises from Entirely Different Source than Adult Immune System" )

If the embryo is indeed a "burglar", then the mother's body immediately opens all doors and windows as he approaches!

In addition, unlike a tumor, the embryo is not just a growing mass of his mother's cells.  His DNA is unique. He builds himself and his habitat with his own cells.

Therefore, his body, as well as the placenta, is HIS property. The fetus and his belongings are lodging temporarily within a womb that not only prepared itself for his arrival, but offers room and board for nine months.

Let us honestly acknowledge the biological facts, and reason correctly in regards to the personhood of the fetus and the weight this truth must carry in society. How we treat other human beings--regardless of their size, location, appearance, and current functionality--defines the quality of our humanity and the legacy we'll leave to future generations.

Although we do not live for others, responsible members of a healthy society live in consideration of their neighbors. At times, this respect will surely conflict with our preferences and plans, but never our true rights and those of another. And this is the distinction of a great people.

I don't have to like you to uphold your rights as a human being. I don't have to agree with you to defend your right to life, liberty, and pursuit of happiness. Despite expected deviations among imperfect humans, most people embrace the Golden Rule (the ethic of reciprocity) as the maxim of a healthy, flourishing society. Whereas the principle of the Golden Rule predates New Testament, times, most people recognize it as a teaching of Jesus:

"Therefore all things whatsoever ye would that men should do to you, do ye even so to them" (Matthew 7:12, see also Luke 6:31). The common English phrasing is "Do unto others as you would have them do unto you".

This rule of life embodies two forms:

A person should treat others in a manner he or she wants to be treated.
A person should not treat others in ways he or she would not like to be treated (also called the Silver Rule)

We look at failing economies and crime rates as evidence of a declining society, but these are  just two cascading effects from a singular cause--how people in that society treated each other as members of the larger, human community--particularly the most vulnerable among them.

I once saw a bumper sticker that said,
"I owe, I owe, so off to work I go."
It was a fun way of complaining about having to drag one's body
to work in order to make the car payments.

And it also taught a fundamental truth:

The right to control one's own body doesn't justify
the failure to pay one's debts.

Doris Gordon, "Abortion, Choice, and Libertarian Principles"



I encourage you to visit the following sites for pro-life voices that are being heard in diverse communities. You may not be aware of these organizations.

Feminists for Life

Secular Pro Life

Pro-Life Alliance of Gays and Lesbians

Democrats for Life

Libertarians for Life

National Black Pro Life Union

Hispanic Americans for Life

Latinos for Life

Roe v. Wade, the Constitution, and Back Alley Abortions

 

Norma McCorvey never wanted an abortion — she was seeking a divorce from her husband — but young, pro-abortion feminist attorney Sarah Weddington used McCorvey’s case as a means of attempting to overturn Texas’ law, making most abortions illegal. Weddington took the case all the way to the Supreme Court, which invalidated every pro-life state law in the nation protecting unborn children. But most Americans don’t know that McCorvey, who was “pro-choice” on abortion at the time, is now a pro-life advocate. She is dedicated to reversing the Supreme Court case that bears her fictitious name, Jane Roe. (Lifenews.com)

Some people refer to the "legalization" of abortion in 1973 in the Supreme Court decision of Roe v. Wade. The statement is misleading. Roe v. Wade DIDN'T legalize abortion procedures in the United States. Women were already obtaining legal abortions in the early stages of pregnancy in some states, citing rape, incest, danger to their health or damage to the fetus. A few other states had similar exceptions. By 1970, New York, Alaska, Washington, and Hawaii were offering unrestricted abortions.

What DID occur because of the 1973 court decision was a federal mandate forbidding the rest of the states from outlawing abortions during the first twenty-four weeks of pregnancy.

It also forced them to allow mental and physical exceptions for abortion during the last twelve weeks of pregnancy, including questionable definitions for mental illness during an unwanted pregnancy (such as depression). Subsequent decisions by the court however, have said that states could not prohibit abortion at any time for any reason.

Although many conservatives want stricter federal abortion laws in the United States, such a measure would be just as unconstitutional as the previous Roe v Wade decision. What the Supreme Court rendered in 1973 was flagrantly unconstitutional! I believe this stems from many Americans sadly believing the government grants their rights.The main part of the Constitution simply establishes the framework for the federal government and its three parts, defines their respective duties, and establishes what the federal government can do and what the states can do.

None of that has anything at all to do with individual rights or with social issues.

“The Bill of Rights, which is a set of amendments added after ratification to reassure opponents of the Constitution that the new government would not usurp their rights, simply forbids the new federal government from abusing or abridging already-existing rights.

“The right to free speech and all others existed prior to the Constitution and the Bill of Rights. The language of the First Amendment tells what the intent was: "Congress shall pass no law."

“The Second Amendment did not grant people the right to keep and bear arms. They already had and continue to have that right. It simply says the already-existing right cannot be abridged. You can't abridge something that doesn't exist.” (Charley Reese, We are Revolutionaries)

If you believe that your rights come from your government, then you must also concede that the government can take them away.

“The government, by granting a "right" to abortion to a woman for almost any reason, could do it only by guaranteeing the destruction of preborn human beings. In other words, government did not expand rights; it deprived one group of humans a right to continue living in the process of permitting another group of humans the choice of not carrying their pregnancies to term. “(William L. Anderson, On the Anniversary of Roe V. Wade)

The US Supreme Court claims that the Constitution contains a "penumbra" of rights. The word penumbra means "something that covers, surrounds, or obscures". Supposedly, a hidden "right" to abortion was emanating out of this constitutional cauldron that only the Supreme Court had special powers to find. In 1973, the Court brought it forth and gave substance to shadow.

They awkwardly hinged their decision on the Fourteenth Amendment's Due Process Clause, cleverly spinning a misleading notion of a constitutional "Right to Privacy":

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

First, there is no mention of the word "privacy". But it does clearly state that the States shall not deprive ANY person of life, liberty or property without due process.

In the case of Roe v. Wade, the Court favored the stronger over the weaker, the bigger bully over the defenseless...even to the point of refusing to address the personhood of the younger and his rights. And all in the name of the aggressor's right to privacy? Is this justice?

Then, if we use the Court's own "stretched" interpretation, doesn't a fetus deserve to be left alone in privacy to grow and develop, considering he did not ask to be born, but came into being as a result of the FREE choices (albeit, reckless and perhaps uninformed) of his mother and father?

As a libertarian, I value my privacy and do not want the government prying or interfering into how I choose to live my life. But if, in the enjoyment of my privacy, I harm other individuals, use them against their consent to further my pleasure, or coerce others into my pleasures who do not have fully informed consciences, such as children or the mentally impaired, then I am an aggressor!

If you like porn, that's your business. However, you lose your "right" to privacy when you force my child against his will to participate in it or look at pornography. Your freedom ends when your actions harm another person.

When plantation owners invoked their legal "right" to do as they privately pleased with their black property, was it proper for citizens to side with them?

Although legal at the time, owning and abusing imported black Africans was immoral. Abolitionists worked tirelessly to raise awareness and the conscience of the American people that led to a significant overruling by the Supreme Court of the infamous Dred Scott Decision, and then to the eventual end of slavery in this country.

I used to teach high school courses at a private, Christian school. The students were consistently horrified to learn that people of African descent imported to this country for slavery were once legally deemed "chattel" (property), and therefore were not citizens (legal persons) with any Constitutional protections. Slaves could not sue in court, nor could they be taken away from their owners without due process.

I often wonder if one day, future generations in America will also find it hard to believe that we gave protective rights to a host of animals from eagles to whales, but none to developing human beings!

“Abortion involves the deliberate, terminal removal of a defenseless human being from its property (the fetal membranes are part of the zygote's cells; it takes no tissue or blood from the host), and the destructive dislodging of the fetus and his property from the womb--a place he "entered" not by request, but by the free will actions of the host.

“Thus, is the fetus really the property of the host or a temporary guest who comes for room and board? Does a landlord own a renter? Should a renter ever be denied due process?

“That's why pro-choicers fight so hard against acknowledging the personhood of the fetus, despite the embryological evidence. If we granted these little human beings the status of legal personhood, then everything would change. It did for slavery!

“Second, the United States Supreme Court is supposed to be restricted by the Constitution to interpret existing laws, not "discover" new ones.

“It (Roe v. Wade) was a flawed decision, not because it legalized abortion, but because it usurped the authority of 50 state legislatures. Far too many judges, both federal and state, have taken it upon themselves to legislate rather than rule on existing law.

“It's important to understand the difference between legislatures and courts. All of the moral and philosophical decisions are the province of legislatures. It is in the legislature that the will of the people expresses itself.

“Courts properly have no legislative function. Their function is to look at a written law and see if it applies to a particular case. In the case of the Supreme Court, it is supposed to decide if any law conforms to the U.S. Constitution.

“The Constitution is dead silent on abortion and on practically every other moral and philosophical issue.

“It was a charter authorized by the sovereign states for a federal government with limited powers. All you have to do is read the document, and you can plainly see it is simply about the structure of government and the powers assigned to the various components.

“Prior to Roe v. Wade, the question of abortion had been left properly to the 50 states. It was legal is some states, not in others. What the Supreme Court did, without a shred of basis in the Constitution, was to declare its exclusive right to decide the issue for all 50 states!

 “The excuse was that prohibiting abortion was an invasion of privacy and that the right of privacy is in the "penumbra" of the Constitution. That's 200 percent baloney. The Constitution makes no mention of privacy! The closest it comes is saying that homes may be searched and private papers seized if due process of law is followed. That certainly is not a broad grant of privacy.

“And if prohibiting the murder of an infant in the womb is a violation of a woman's right to privacy, why is it not a violation of her right to privacy to prohibit her murder of other children? Indeed, following the illogic of that court, the whole criminal code is a violation of people's right to privacy.” (Charley Reese, Judges and Solons)

In the '60s, an 1879 law still on the books in Connecticut forbid any use of contraception or the assisting of anyone seeking contraception. It had not been enforced for years, and women were easily getting contraceptives over the counter in the state as "feminine hygiene" products.

The law was challenged and first came before the Supreme Court in the 1961 case, Poe v. Ullman, where a doctor and his patients claimed they were denied their Due Process rights under the Fourteenth Amendment. Citing that the law had not been enforced in many years, the Court dismissed the case on the ground that the plaintiffs lacked sufficient standing to sue.

Next, Estelle Griswold, the Director of the Planned Parenthood League of Connecticut, opened a birth control clinic in New Haven to dispense contraceptives. This "hanging out a sign" was designed to challenge the law.

Griswold and C. Lee Buxton, a physician who served as the Medical Director of the League, were arrested and charged with providing contraceptive information, devices, and drugs to a married Connecticut couple.

They appealed their conviction to the Supreme Court, citing the law violated the Fourteenth Amendment. This time, the Supreme Court agreed. Remember the "penumbra of rights and emanations" hocus-pocus?

In a gigantic leap of circus-like judicial activism, the judges in Griswold vs. Connecticut "discovered" guarantees in the First Amendment, the Third Amendment, the Fourth Amendment, the Fifth Amendment, and the Ninth Amendment that emanated a “zone of privacy" that begged to come out into the light of law.  This zone, they insisted, protects the right to privacy in the marriage relationship.

A later case established the right of unmarried people to contraception and opened the door to expanding the definition--on a federal level--of what is included in a person's privacy. It thereby set the judicial stage for Roe V. Wade. (source: Griswold vs. Connecticut)

Even one of the dissenting judges in the Griswold case, Potter Stewart, agreed that the Connecticut law was "silly", but not a matter for the US Supreme Court to take up because it was NOT a constitutional issue:

“Since 1879, Connecticut has had on its books a law which forbids the use of contraceptives by anyone. I think this is an uncommonly silly law. As a practical matter, the law is obviously unenforceable, except in the oblique context of the present case. As a philosophical matter, I believe the use of contraceptives in the relationship of marriage should be left to personal and private choice, based upon each individual's moral, ethical, and religious beliefs.

“As a matter of social policy, I think professional counsel about methods of birth control should be available to all, so that each individual's choice can be meaningfully made. But we are not asked in this case to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the United States Constitution. And that I cannot do.” (Griswold vs. Connecticut)

From a 1965 Time Magazine article: "All these emanations failed to impress dissenting Justice Potter Stewart, who could find no constitutional infringements whatever in the law. In what conceivable way, asked he, did Connecticut's birth-control law violate the Third Amendment ban against quartering soldiers in private homes? How could a federal court use the Ninth Amendment to take away rights assigned to the people's elected state representatives?

Stewart's solution? Let Connecticut citizens persuade their legislature to repeal the law!

Indeed, by the time of Griswold vs. Connecticut, the birth control pill was already available in some states to physicians. After the Griswold case, contraceptives became available to married women in 1965 and to unmarried women in 1972

The point is this: the birth control pill was bringing about the revolution in contraceptive use and we DID NOT need the federal government's interference!

THE PEOPLE--the citizens in each state--would have pressured for reform in community standards that would have eventually changed their laws...changes made by the state legislatures, not the federal government!

I don't fault Estelle Griswold for opening a clinic and challenging the law. However, I regret she did not keep her fight inside Connecticut. That makes me suspicious as to the entire political agenda of Planned Parenthood from the beginning. Federal mandates translate into federal funding with our tax dollars (which they now receive in the millions) to not only offer contraceptives and counseling, but also abortion services nationwide.

What will the national landscape look like if Roe v. Wade is ever overturned?  Each state will regain power to constitutionally regulate the abortion industry within its borders. A few states would probably ban abortions, but most would retain the freedoms worded within the Roe decision for first trimester abortions and, more than likely, put tougher restrictions on second and third trimester abortions, which would vary from state to state. Still, others would have very liberal laws.

Therefore, a woman with an unwanted pregnancy can travel to a nearby city or state that offers the abortion services she wants during any stage of pregnancy. The couple in Griswold could have done the same thing, but they were being "guided" (used is a better word) by Planned Parenthood's legal team. Women would NOT be forced to revert to "back alley "abortions, nor would they be arrested as criminals.

Mary Calderone, (former Medical Director of Planned Parenthood) and Nancy Howell Lee (a pro-choice researcher) both investigated the practice of criminal abortion in the pre-legalization era.

Calderone estimated that 90% of all illegal abortions in the early 1960s were being done by physicians.

Calderone further estimated that 8% were self-induced, and 2% were induced by someone other than the woman or a doctor. Lee estimated that 89% of pre-legalization abortions were done by physicians, an additional 5% by nurses or others with some medical training, and 6% were done by non-medical persons or the woman herself.

Calderone's numbers came from "43 men and women from the various disciplines of obstetrics, psychiatry, public health, sociology, forensic medicine, and law and demography." Lee interviewed women who had undergone pre-legalization abortions. The discrepancy between Lee's and Calderone's breakdowns of non-physician abortions is probably due to sampling errors.

Lee spoke only with women who survived abortions. Therefore, she would not be exposed to the proportionate number of women who chose the most dangerous alternative. Lee's sample also included only willing survey participants who would be more forthright and complete in divulging information.

Calderone, on the other hand, spoke with those likely to see the botched and fatal abortions, and therefore they would be exposed to a higher percentage of the most dangerous, self-induced abortions. In addition, Calderone's informants would have been investigating botched abortions that could be subject to a criminal investigation.

As a result, women speaking to them would be likely to withhold the true identity of their abortionists to protect them. Also, should the woman die, her family and friends might identify the woman herself as the abortionist, rather than admit their own roles in arranging or performing abortions.

Anecdotal data tends to support Lee's research. Stories of abortions by midwives, orderlies, and chiropractors and assorted lay practitioners like Harvey Karman and the Jane Syndicate (underground abortion service) are far too common to represent only 2% of criminal abortions.

Let’s rely primarily on Lee's numbers and adjusted them slightly to reflect the slight under-reporting of amateur abortions. Thus, a fair estimate of the breakdown of criminal abortions would probably look like this:

90% performed by physicians, 5% performed by trained non-physicians (medical and lay), 3% performed by an untrained accomplice, and 2% performed by the woman herself.

What did pre-legalization abortions look like in practice?

There were physicians who ran abortion mills, physicians who did selected abortions on their own patients, and physicians who worked patients through loopholes in the law. In addition to physician abortionists, there were the professional non-physicians, often operating with training, equipment, medications, and back-up provided by physicians.

Where, then, does the image of the coat hanger come in?

Lee found a different picture with women who had self-aborted from the women who had sought professional (however illegal) abortions. These self-aborting women tended to be less rational and more self-destructive than the women seeking competent abortionists. Lee also found that the women attempting self-abortion were likely to have had a death wish at the time of the abortion.

This finding is in keeping with psychiatric literature of the time, which treats self-induced abortion as a peculiar manifestation of the self-mutilating behavior common in patients with certain psychiatric disorders. Self-mutilation in patients with these disorders can range from superficial cuts and cigarette burns to self-trepanning (drilling holes in the skull), enoculation (gouging the eyes out), and amputation of limbs.

Mutilation of the genitals is not rare in these patients, and self-induced abortion was often regarded as an extreme form of genital mutilation aimed at attacking the patient's own femininity. It was in the political context, not the psychiatric or psychological context, that self-induced abortions were considered to be the expected behavior of normal women. This politicized view of self-aborting women eclipsed the reality.

This is not to say that all women who self-induce abortions are mentally ill. Investigators of post-Roe self-induced abortion injuries and deaths found other factors, such as distrust of the medical profession, a perception of home herbal abortion as more "natural," cultural preferences, and "idiosyncratic" factors nobody could readily explain.

What of the women turning up in emergency rooms and morgues?

The things they put into their bodies illustrate that there is something more going on than just an attempt to dislodge an unwanted fetus: pine oil, drain cleaner, curtain rods, ice picks, coat hangers, bicycle pumps, turpentine... Every year or so a self-induced or rank-amateur abortion death will be reported to the Centers for Disease Control, showing that the problem has not just gone away with legalization. But the problem is now swept under the rug because admitting that it exists poses a threat to the abortion agenda.

The self-induced and amateur abortions that showed up in the emergency room and the morgue gave some people a distorted view of criminal abortion. Abortion proponents capitalized on and magnified that distorted view. But the truth is that most women who were making a self-interested decision to abort found a competent person to do the abortion.

All that's changed with legalization is that abortionists have been given a new clientele -- women who would never have sought abortions had they been illegal. While that's a boon to abortionists, it's hard to argue that more abortions for ambivalent women are a real gain to society, or to the women themselves. (The Bad Old Days of Abortion)

Therefore, regardless of any federal or state laws, some women will not turn to readily available medical clinics or competent physicians to end their pregnancies--even if the services are free!

There will always be charlatans who offer assistance at a cut-rate price or for other insidious favors. They will continue to prey upon women frightened of doctors and medical procedures. Modern, more sophisticated Snake Oil "Doctors" still peddle their cures and remedies for everything from gout to abortifacients. Troubled women, seeking to symbolize their internal pain with the way they abort, will always make up a small percentage of the abortive population.

If Roe v. Wade is overturned, will these desperate women be arrested?

“...abortion advocates have claimed—without any evidence and contrary to the well-documented practice of ALL 50 states—that women were jailed before Roe and would be jailed if Roe falls (or if state abortion prohibitions are reinstated).

“This claim rests on not one but two falsehoods:

“First, the almost uniform state policy before Roe was that abortion laws targeted abortionists, not women. Abortion laws targeted those who performed abortion, not women. In fact, the states expressly treated women as the second “victim” of abortion; state courts expressly called the woman a second “victim.” Abortionists were the exclusive target of the law.

“Second, the myth that women will be jailed relies, however, on the myth that “overturning” Roe will result in the immediate re-criminalization of abortion. If Roe were overturned today, abortion would be legal in at least 42-43 states tomorrow, and likely all 50 states, for the simple reason that nearly all of the state abortion prohibitions have been either repealed or are blocked by state versions of Roe adopted by state courts. The issue is entirely academic.

“The legislatures of the states would have to enact new abortion laws—and these would almost certainly continue the uniform state policy before Roe that abortion laws targeted abortionists and treated women as the second victim of abortion. There will be no prosecutions of abortionists unless the states pass new laws after Roe is overturned.

“This political claim is not an abstract question that is left to speculation—there is a long record of states treating women as the second victim of abortion in the law that can be found and read. To state the policy in legal terms, the states prosecuted the principal (the abortionist). And that will most certainly be the state policy if the abortion issue is returned to the states.

“Why did the states target abortionists and treat women as a victim of the abortionist?

“It was based on three policy judgments:

The point of abortion law is effective enforcement against abortionists
The woman is the second victim of the abortionist
Prosecuting women is counterproductive to the goal of effective enforcement of the law against abortionists.

“The irony is that, instead of states prosecuting women, the exact opposite is true. To protect their own hide, it was abortionists (like the cult hero and abortionist Ruth Barnett when Oregon last prosecuted her in 1968), who, when they were prosecuted, sought to haul the women they aborted into court. As a matter of criminal evidentiary law, if the court treated the woman as an accomplice, she could not testify against the abortionist and the case against the abortionist would be thrown out.

“There are “only two cases in which a woman was charged (not prosecuted) in any State with participating in her own abortion”: from Pennsylvania in 1911 and from Texas in 1922. There is no documented case since 1922 in which a woman has been charged in an abortion in the United States.

“Based on this record—spanning 50 states over the century before Roe v. Wade—it is even more certain that the political claim that any woman might be questioned or prosecuted has no record in history and will certainly not be the policy of any state in the future.

Even pro-abortion historians admit this record.

The pro-abortion historian Leslie Reagan, in her 1997 book When Abortion Was A Crime, admits that states did not prosecute women for their abortions and that women did not face criminal liability as principals, accomplices, conspirators, solicitors, or murderers, and concedes that the purpose behind that law was not to degrade women but to protect them.

“Prolife legislators and pro-life leaders do not support the prosecution of women and will not push for such a policy when Roe is overturned. This is demonstrated by abortion regulations enacted in the past 20 years—like the federal partial birth abortion ban—in which women are expressly excluded from any possible prosecution. Instead, pro-life legislators are advocating laws that defend the unborn and protect women from the negative impact of abortion.” (States Didn’t Put Women in Jail for Abortions Before Roe)

This thorough research bears out that abortion providers--trained or otherwise--will be the focus of any future state laws restricting abortion procedures.

Pro-choicers often cry about "keeping the government out of our personal lives", but supporting Griswold v. Connecticut and subsequently Roe v. Wade opened the door for just that very thing--allowing our central government to address issues for which they have no constitutional authority!

As a result, we now have the fat and soda police scouring our nation's schools and fast food restaurants. Regulations abound, including what kind of light bulbs we can use. Our daily electricity consumption (under the threat of a temporary shut down if deemed excessive) and the water level in our showers will be monitored soon for 'acceptable' levels.

Our eligibility for healthcare will be determined by our liability to society--not our ability to pay. The federal government has become both Big Brother and Nanny--surveilling, assessing, and deciding what's best for its citizens.

The notion that an all-powerful, centralized state should provide monolithic solutions to the ethical dilemmas of our times is not only misguided, but also contrary to our Constitution.

Remember, federalism was established to allow decentralized, local decision-making by states. Today, however, we seek a federal solution for every perceived societal ill, ignoring constitutional limits on federal power. The result is a federal state that increasingly makes all-or-nothing decisions that alienate large segments of the population

Why are we so afraid to follow the Constitution and let state legislatures decide social policy?

“Surely, people on both sides of the abortion debate realize that it's far easier to influence government at the state and local level. The federalization of social issues, originally championed by the left but now embraced by conservatives, simply has prevented the 50 states from enacting laws that more closely reflect the views of their citizens. Once we accepted the federalization of abortion law under Roe, we lost the ability to apply local community standards to ethical issues.” (Statesman Ron Paul)

In our final article in the series, we will look at the difference between natural and legal rights, and the tension that exists between the rights of the fetus and the host.

Does the host have a right to evict? Is continuing an unwanted pregnancy tantamount to slavery? Is the "It's my body" claim valid under such circumstances?

Human Life, Human Being, Personhood

I used to write frequently on political and social issues from the viewpoint of a Libertarian Christian. During that time, I wrote a four-part series on abortion that looked at the issue from the core belief of libertarianism that promotes the freedom of self-ownership. I’m re-posting these articles as we approach another anniversary of Roe V. Wade.
Part Two.

 Understanding the science of embryology can be imposing to non-scientists.

As a layperson, I will attempt to break down its terminology for the purpose of enabling us to discuss the issue with greater confidence and skill.

There is no excuse for Christians to remain ignorant of these facts. We must strive to communicate the pro-living message more effectively…and not just from theology.


Our vocabulary of life must reflect a basic, yet adequate grasp of science and philosophy. Moreover, I am convinced that if we use the latter viewpoint in civil discourse--coupled with the compelling inherent rights defense--we have the high ground.

Abortion debates usually begin with the question, "When does human life begin?" Actually, that question can be answered easily if we separate the terms "human life" and "human being".

The sperm contains human life, and  so does the oocyte (egg). However, these parts cannot produce a human being until they mature and are united. Alone, they each contain 46 chromosomes.

In the male, his sperm cells began maturing in puberty. Female oocytes are produced in the fetus' ovaries around the fifth month (about 7 million). By birth, only 700,000 to 2 million remain. By puberty, about 400,000 are left. The oocytes that are shed monthly during the menstrual period still contain 46 chromosomes. 1

Only at fertilization by the sperm does the oocyte reduce its number of chromosomes through a halving process known as Meiosis. Thus, for fertilization to be accomplished...

"A mature sperm and a mature human oocyte are needed. They each possess "human life," since they are parts of a living human being; but they are not each whole living human beings themselves. They each have only 23 chromosomes, not 46 chromosomes — the number of chromosomes necessary and characteristic for a single individual member of the human species.

Furthermore, a sperm can produce only "sperm" proteins and enzymes; an oocyte can produce only "oocyte" proteins and enzymes; neither alone is or can produce a human being with 46 chromosomes." 1

The fusion of the mature sperm with the mature oozyte results in a human zygote (being) with the number of chromosomes characteristic of an individual member of the human species.

From this point on, the zygote directs his or her development (not the mother). He or she produces human proteins and enzymes. Nothing else needs to be done for growth to occur.

The single-cell human embryo doesn't change into something else or become some other kind of thing. The embryo only divides and grows bigger. He or she is now biologically an individual member of the human species.

Some scientists, in an attempt to reduce the status of the embryo, have coined a term "pre-embryo", stating that the zygote is not developmentally complete until after fourteen days (when they claim twinning no longer can take place).They also look for the appearance of what is known as the primitive streak (the beginning of the neurological system). In other words, the zygote is considered void of inherent individuality and distinct spatial orientation.

As the zygote divides, a hollow ball of cells develop called the blastocyst, which attaches to the lining of the uterus between 5 to 8 days after fertilization.

"The wall of the blastocyst is one cell thick except in one area, where it is three to four cells thick; and it is the inner cells in the thickened area that develop into the embryo, and the outer cells burrow into the wall of the uterus and develop into the placenta.

"The wall of the blastocyst takes on the function of becoming the outer layer of membranes (chorion) surrounding the embryo. An inner layer of membranes (amnion) develops by about day 10 to 12, forming the amniotic sac, filled with a clear liquid called amniotic fluid that expands to envelop the developing embryo, which floats within it."  2

Clifford Grobstein, a frog embryologist, and Richard McCormick, S.J., invented the misleading term "pre-embryo" in 1979. Both men thought there could be no individual prior to 14 days because twins may form. They also postured that only the inner layer of the blastocyst would become a human adult because the outer layer is "all discarded" after birth.

These "pre-embryo" proponents said there is absolutely no relationship or interaction between these two cell layers of the blastocyst. The facts, however refute their claim:

"The chorion, the amnion, the yolk sac, and the allantois... develop from the zygote, but do not participate in the formation of the embryo or fetus — except for parts of the yolk sac and allantois.

Part of the yolk sac is incorporated into the embryo as the primordium of the gut.The allantois forms a fibrous cord that is known as the urachus in the fetus and the median umbilical ligament in the adult.  It extends from the apex of the urinary bladder to the umbilicus." (Keith L. Moore and T.V.N. Persaud, The Developing Human) 1

In other words, they (the blastocyst cells) are genetically a part of the individual and are composed of the same germ layers." (Ronan O'Rahilly and Fabiola Müller, Human Embryology and Teratology) 1

Therefore, since the concept of a "pre-embryo" is not scientific, can it be a cleverly fabricated political tool?

Remember, a zygote is a newly created human with 46 human chromosomes--23 contributed from the mother and 23 from the father. Already the sex is determined, thanks to the father.

If his spermatazoon contained 22 autosomes and an X chromosome, the embryo will be female. If it contains 22 autosomes and a Y chromosome, the embryo will be male.

The zygote's eye color, natural hair color, height, shoe size, propensities to disease, and other genetic factors are present.

"..it now seems that the mammalian embryo's spatial orientation is largely determined during the first days of development, perhaps by signals in the outer cell wall or trophoblast.

The most recent findings based on mouse embryos even suggest that "two axes of the blastocyst become specified in the single-cell embryo"; that is, that the embryo's axes determining right and left, up and down, are determined by the point where a sperm first penetrates the egg, and that important patterning information for this event may already be present in the egg before fertilization.

"Differentiation into cells with different roles and functions also begins with the very first cell division of the early mammalian embryo. These first two cells already have different roles in embryonic development--with one largely devoted to making the embryo proper, the other to developing the support structures (placenta etc.) needed for long-term survival.

Further development proceeds from this first differentiation along a definite plan – with one of the two cells dividing first, in accord with its distinct function, so that the embryo develops three cells, then four, then eight, and so on."  3

         
[Note: The human embryo does not divide synchronously like a frog.]

"At each stage this is no mere colony or aggregate of cells – much less a mere envelope full of genes – but an integrated, developing organism of our species.

"So radically different are our new findings about the embryo that a major science journal notes that they were "heresy" only a few years ago.

Human and other mammalian embryos were once thought to become organized and give their constituent cells definite fates only after implantation in the womb…

…now it is found that the embryo begins differentiation, and develops a "top-bottom axis" guiding future development almost immediately after conception.

The journal notes that from now on, "developmental biologists will no longer dismiss early mammalian embryos as featureless bundles of cells." 3

Let's try to summarize what scientific research is telling us:

1) The zygote being has 46 chromosomes--23 contributed from the human life of the mother, 23 from the human life of the father.

2) The Zygote is now completely human and self-directing; he or she only needs a secure place to grow and receive nourishment. He and his habitat are one.

3) One cannot ethically continue to use the 13 to 14 day appearance of the primitive streak as a time marker, for its indicators are already determined and operative within the single-cell zygote and as we now know, twinning can indeed occur after 14 days.

In addition, the outer wall--once considered the separation point--develops from the fertilized zygote and interacts with the inner wall as one, complete organism. Some of these outer wall cells grow into permanent tissue.

Now that we've separated human life from a human being, here's the follow-up question:

"When does the being become a person?" At this point, the debate gets heated because we must move more from science to a branch of philosophy known as ethics.

Some scholars claim personhood is recognized at viability--when the fetus can live a meaningful life on its own outside the womb. Others say at "brain birth", but that term is scientifically invalid. "Brain birth" is the very gradual acquisition of the functions of a developing neural system. This developing neural system is not a brain.

"Although it is customary to divide human development into prenatal (before birth) and postnatal (after birth) periods, birth is merely a dramatic event during development resulting in a change in environment.

Development does not stop at birth.  Important changes, in addition to growth, occur after birth (e.g., development of teeth and female breasts).  The brain triples in weight between birth and 16 years; most developmental changes are completed by the age of 25." 1

Other people claim only the exercise of rational attributes or self-awareness denotes personhood. Yet we immediately see that these characteristics are variables, not constants. Who gets to define "meaningful" for the fetus? Won't that definition be subject to change in fluctuating political and cultural landscapes?

Furthermore, there are degrees of rationality and self-awareness. Again, who will set these standards for "good, better, and best"? Doesn't history warn us not to even entertain such ideas?

Can our capacities to think, feel, choose, and relate to the world around us change due to age, disease, or injury? Of course! If an adult begins to lose these capacities, is personhood also diminished? If he or she is no longer a person, do they lose their rights?

Don't we see the notion of diminished personhood already argued and played out in our society? The idea of there being a difference between a human being and a human person has frightening consequences.

I cannot address the issue of personhood any clearer or more convincingly than Doris Gordon, founder of Libertarians for Life:

"How should we define "person"? A definition that is accepted even by many abortion proponents, especially among libertarians, is that a "person" is an animal with the capacity for reason and choice. This capacity, this rational nature, is what establishes us as beings with the obligation not to aggress.

"Given this definition, the argument is:

1) animals with the capacity for reason and choice are persons;
2) human zygotes are animals with that capacity;
3) therefore human zygotes are persons.

"Many would respond: Nice syllogism, but in reality, it's impossible for human zygotes to have the capacity for reason and choice. Such skeptics apparently are using one meaning of "capacity" and are failing to notice it has two meanings:

1) root capacity for functioning (a thing's already existing nature, which is there from the beginning of its existence)

2) active capacity, actual functioning (a right-now demonstration of the root capacity).
The meaning of "capacity" relevant to the syllogism--and sufficient for human zygotes to be persons--is root capacity.

Another fact about the nature of personhood can help show why root capacity works, so let's digress to consider it.

Personhood: developmental or a constant?

Since the human body is a thing that develops and grows, many people assume that therefore, so does personhood. The fact is, however, personhood is not developmental; it's a constant.

If personhood were developmental, then the right not to be killed (commonly called the right to life) would have to be developmental, too. But how can this right be developmental? Think of it this way: A human being cannot be partially killed and partially not killed. To be a person is to have the right not to be killed. This right cannot be put on a scale of degrees; it is an either/or, just as alive or dead is an either/or.

A "developmental" approach to personhood makes no sense. If the so-called "potential person" may be killed at whim, it is simply a non-person. If it is a person, we may not choose to kill it on a whim. A potential, partial, or lesser individual right not to be killed that can be set aside is, in effect, a non-right. A being is a person or not; there is no in-between moral, or even logical, class of beings.

In Roe, however, the Court assumed that there is another category of human offspring: "potential life," which lies somewhere between "non-person" and "person." In the Court's view, with the increasing physical development of human beings, comes an increasing moral standing and, therefore, an increasing level of rights, until at some point in our development, we acquire "full rights".

Since human beings do not mature until adulthood, why not permit infanticide? Apparently seeking a time to start applying the brakes, Blackmun wrote, "With respect to the State's important and legitimate interest in potential life, the 'compelling' point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb."

But what is meaningful? By whose standard? In ordinary language, "viable" means "capable of living or developing in normal or favorable situations." To abortionists, "viable" requires survivability under hostile conditions. Either way, what does viability have to do with what an entity is, or with the right not to be killed?

The principle the Court advanced here is that if you need help, you can be killed, but if you can manage, you cannot be touched. Under viability, the more a child needs the womb, the less right she has to stay there.

Moreover, viability is not a stable point. Since Roe, the age at which prematurely born children survive in incubators has been lowered. As Justice Sandra Day O'Connor wrote, "The Roe framework, then, is clearly on a collision course with itself."

Given current medical technology, we can talk of viability at both ends of prenatal development. Zygotes in petri dishes and embryos in cold-storage are clearly living outside the mother's womb. Indeed, if artificial wombs are eventually perfected, many children might not ever reside in a woman's body..."

Viability is not a test of personhood; it is a test of the level of medical technology and of the competence of medical personnel. The fact that they lack the ability to maintain a life does not give them or anyone else a right to take that life. Their inability is irrelevant to whether another's death is a homicide or not.

Two meanings of "capacity"

Let us return to "the capacity for reason and choice." Abortion choicers often insist that "capacity" refers only to the second meaning given above--to the ability to demonstrate reason and choice right now.

If this were its only meaning, then what about people generally recognized as persons, such as people who are profoundly retarded, people in coma, stroke victims, and the senile? They might not be able to reason or choose at a given moment. In fact, under such a definition, we all have grounds to worry if we sleep too soundly.

Most abortion choicers probably oppose equating fetuses with comatose and retarded humans. "[W]e all agree that they [retarded humans] are persons and we cannot justifiably kill them," the Association of Libertarian Feminists took care to say.

Everyone begins life "mentally incompetent." But if life-long "mentally incompetent" humans are persons, why not humans whose incompetence is temporary? Immaturity is no libertarian test for rights. The Libertarian Party platform states: "Individual rights should not be denied [or] abridged...on the basis of...age." It has also opposed "government discrimination directed at any...artificially defined sub-category of human beings."

True, in one sense, capacity means a power that can be demonstrated right now. In another sense, however, capacity means a power that needs time to "warm up" or be "repaired."

Think of a computer program. It might have to undergo 167 steps before it can perform the task it was designed for. Still, we say this program has the capacity to function right from the beginning.

Capacity can refer to a being's natural, underlying power to actualize reason and choice. When a talent is undeveloped, it is still an actual talent. More strongly, even when one's capacity for reason and choice is undeveloped, one still has an actual capacity, an actual power.

Human beings begin life with the capacity to actualize reason and choice; this capacity is in our genes. To kill human beings early in life is to destroy their capacity for reason and choice as well as their lives.

However much we change during life, our rational nature, our personhood, is a constant. Such a position is Aristotelian. Consider what Ayn Rand, an admirer of Aristotle, saw fit to quote approvingly when reviewing John Herman Randall's book on him. Once again, it shows what views Rand held when not addressing abortion:

"Objecting to 'the...[view that] "anything may be followed by anything,'" Professor Randall writes: 'To such a view...Aristotle answers, No! Every process involves the operation of determinate powers.

“There is nothing that can become anything else whatsoever. A thing can become only what it has the specific power to become, only what it already is, in a sense, potentially. And a thing can be understood only as that kind of thing that has that kind of a specific power; while the process can be understood only as the operation, the actualization, the functioning of the powers of its subject or bearer.”

Making judgments and free choices are activities of persons. If only the present capability to do these things counted, then personhood would be, in the words of one abortion choicer, "a state humans grow into, perhaps months or even a few years after birth." Most abortion choicers, however, are not willing to admit even the mere possibility that choice on infanticide is a logical consequence of their argument...

What sets the person aside from the non-person is the root capacity for reason and choice. If this capacity is not in a being's nature, the being cannot develop it. We had this capacity on Day One, because it came with our human nature.

In other words, to be an actual person, human beings need do nothing but be alive.

We were all very much alive at conception. One-celled human beings are not "potential persons"; they are persons with potential.

When do human beings become persons? The answer is, human beings do not become persons; human beings simply are persons from Day One.^" 4

Future posts will look at the history of abortion in the United States prior to 1973. What changed after the Roe decision? What if individual states once again regulated abortion procedures? Additionally, we'll examine the host's claim to her own body and the right to aggress (evict), and the difference between inherent and legal rights.


Have you read Part One?  Christian, Libertarian, and Pro Life: A New Look at an Old Issue

 Resources:

1. "When do Human Beings Begin? Scientific Myths and Scientific Facts by Dianne N. Irving, M.A., Ph.D

2. Stage of Pregnancy Development: The Baby's Growth from Cell to Individual

3. Richard M. Doerflinger "Modern Embryology and the 'Pre-Embryo" 

4.Abortion and rights: Applying Libertarian Principles Correctly by Doris Gordon

Christian, Libertarian, and Pro Life:A New Look at an Old Issue

I used to write frequently on political and social issues from the viewpoint of a Libertarian Christian. During that time, I wrote a four-part series on abortion that looked at the issue from the core belief of libertarianism that promotes the freedom of self-ownership. I’m re-posting these articles over the next three days.

Every year about this time, the voice of the pro-life movement intensifies as America approaches the 22nd--the day in 1973 when the Roe Court deemed abortion a fundamental right under the Constitution.

As a former conservative, I was heavily involved in pro-life organizations from sidewalk protests and vigils, counseling, education and legislative action. My participation stemmed not only from Christian convictions, but also from personal experience. I had an abortion in 1978 before I returned to the faith of my childhood.
 
How am I different today as a libertarian? Well, I am just as passionate about the life of the pre-born, but I just don't tote around an arsenal of preaching Scriptures.

My circle of friends has widened to include folks who don't sing in conservative or Christian choirs, so I'm honing my skills on topics such as personhood, biology, feminism, viability, and right to aggress in order to speak outwardly to more diverse audiences.

All libertarians agree that the Supreme Court had no business hearing the Roe case in 1973. Abortion is not a constitutional issue; hence, jurisdiction over any prohibitions or allowances should have remained within the states, according to the Tenth Amendment.

Many libertarians, however, will argue against legislation even at the state level. They will point out that libertarian philosophy centers around a person's rights to life, liberty, and the pursuit of property; but for now, there is no legal consensus on when the fetus actually becomes a person. Therefore, the fetus does not qualify for unequivocal protection and remains the property of the host.

Nobody wants government at any level monitoring their personal choices and doling out consequences. Our tax money can be better spent if we divert it from criminal prosecution of voluntary, victimless pursuits. We should be able to eat as much fat as we crave, smoke whatever we want, drink sodas in New York, and marry whomever we desire in our non-theocratic state.

Notwithstanding, I believe the issue of abortion is critically different because it is not a victimless procedure.  My position is that abortion puts into tension the equal rights of two individuals to life, liberty, and the ownership of property (their bodies). Inalienable rights cannot be transferred or taken away based on someone’s size, location, appearance, or level of function.

In this series, I'd like to zero in on certain topics within the abortion debate. I want to be a better libertarian, able to speak intelligently to both sides of the issue WITHOUT automatically resorting to the Bible. Let me explain:

I spent years on the front lines of the Christian pro-life movement in the ˈ80s. We hurt our cause when fellow workers would frequently fall back on "Well, God says it's wrong, that's why" when asked to explain their position. Our credibility suffered even more when someone in the ranks would start bashing the morals of their pro-choice opponents.

I am certainly not ashamed of the Holy Scriptures, and I know very well the passages that speak of the sanctity of life. However, all pro-life Christians must educate themselves to speak the message in other arenas besides their personal faith.

Aside from my religion, I am compelled to give the fetus the benefit of the doubt after examining the scientific information we have so far regarding human conception. Abolitionists took a similar stand when the Supreme Court in 1857 declared slaves to be chattel (property). This meant that society could legally view slaves as non-persons, devoid of any rights to be acknowledged and subsequently protected.

This court decision did not stop abolitionists from speaking out and working within and (at times) against the system to free the slaves, despite the plantation owner's assertion that he could do what he willed with his property and no one had the right to invade his privacy (the pivotal point of the Roe v. Wade case). Normally, such a claim is honored, especially by libertarians, unless aggression is committed against innocent people while one is exercising his freedoms!

Thus, the entire debate seems to center on whether or not the fetus (Latin for young one) is already a person in utero.

In this series, we'll look at scientific evidence for life at conception, along with the interesting hormone the host's body naturally secretes to stop it from rejecting the fetus as foreign tissue. We'll delve into the issue of viability and potentiality. (Is the fetus biologically complete at conception, or is something added along the way to make “it” human? Does something happen at some critical point that gives us an "aha!" moment?)

The idea of the fetus as the ultimate immigrant and the host's claimed right to aggress at any stage of pregnancy will be explored. I'm eager to query the feminist reasoning on abortion when, after  years of monumental, historical struggles, a woman will aggress the basic rights of another woman who has yet to win her fight for equal status and opportunities under the law.

What has been the time-honored libertarian position on responsible parenting and the rights of the child? What about abortion and the free market principle?

Why was Roe v. Wade unconstitutional, and exactly how was the decree worded? What were the laws before 1973, and what would the abortion landscape look like across the United States if Roe v. Wade were to be overturned?

At some future point, I'll post parts of my personal story that speaks more to the Church. A report from the Guttmacher Institute indicates that although the overall abortion rate in the United States was dropping until recently, the rates for Christian women, which have yearly been proportionate with the rest of the abortive population, have NOT declined:

37% of abortive women identify themselves as Protestants
28% indicate they are Catholics
13% of abortions (approx. 170,000 per year) are performed on self-described
“Born Again” or Evangelical Christians

Alan Guttmacher Institute and Physicians for Reproductive Choice,
“An Overview of Abortion in the United States,” 2011

I'm convinced Christians must strive to model a more consistent, pro-life message across the board if we want to be taken seriously about our cause for the pre-born; and we must stop distorting facts and relying on scaremongering tactics.

As a whole, the Church has done a great job with crisis pregnancy support, aftercare, and adoption, but we can do more and do it better--particularly when it comes to helping women find educational and career opportunities that will enable them to make responsible choices for the future.

That brings me to another topic altogether. What about birth control? No, I don't intend to meddle. I simply want to ask, "Aren't we libertarians all about taking responsibility for our own actions and insisting others do the same?"

The Guttmacher Institute additionally reports that nine out of ten women having abortions claim to use birth control, but confess they do not use it as prescribed. Overall, 58% of the women having abortions claim a contraceptive failure; 31% had used a method in the past but were not using one during the month in which they conceived, and 11% had never used any method.

The majority of the women among the 42% who were not using a contraceptive method when they became pregnant had most recently relied on either the pill or the condom. Fifty-three percent of prior pill users and 76% of prior condom users became pregnant within three months of stopping use.

By the way, we're not talking about the contraceptive bungling of naive teens. Most women (56%) having abortions are between the ages of 20-24. They are legal adults in an information-saturated country whose government has poured billions of dollars for years into comprehensive sex education in their public schools--along with free condoms, pills, and complete instructions--all surrounded by a sexually driven culture whose exploits can be accessed with ease 24/7. In other words, there is no excuse for negligence.

Uncle Sam's track record is disappointing. In addition, faith-based abstinence programs are successful (depending on which poll you use) in only delaying the onset of sexual activity (usually by two years). However, even Guttmacher reports that once sex is initiated, religious young people are just as likely as their non-religious counterparts to use contraceptives.

So, here we are, America. Billions in government dollars later, thousands of innocent fetuses still pay for someone else's carelessness every day. What is libertarian about that?

Many women say that being forced to carry an unwanted fetus to term is tantamount to slavery--a very un-libertarian idea. Yet, if the authority to regulate abortions returned to the states, statutes would better reflect a community's conscience and vary widely. A clinic offering the kind of abortion procedures a woman desires would never be too far away.

By the way, the hype about returning women to the mercy of back alley abortions is a dishonest scare tactic.

Between 1965 and 1966, the period right before states began to legalize abortion, the numbers of total deaths were down to 120 per year--thanks to penicillin. (The majority of deaths weren't from botched procedures, but common infections. Abortive women today are given prescriptions for antibiotics after the procedure to ward off post-op complications.)

There is a difference between a self-induced or "back alley" abortion and an illegal one. According to a 1960 Kinsey study in 1960, 84 to 87 percent of all illegal abortions in the United States were performed by reputable physicians! Planned Parenthood once went on record to say that the percentage was as high as 90%.

Here's another topic to bring to light: if abortion laws returned to the states, would we have to fear women being arrested as murderers or is there precedence for them to be treated as co-victims? More on that in an upcoming post.

I know. Perhaps many of my anarchist friends will shake their heads in disgust and claim I haven't changed much at all because I still advocate government involvement--just on a smaller level. However, even in a voluntary community with mutually supported, private police and courts, there would still be standing laws that serve to protect people and their property when harmed.

Other libertarians will be in my corner. Conservatives may find me too legislatively weak. That's okay. The bottom line is that libertarianism, and its unswerving respect for the sovereign individual and his or her inherit freedoms--regardless of outward distinctions, limitations, or circumstances--has provided a clear call to my pro-living platform that will prove impossible to shake.

The Declaration of Independence, that enduring document that defines individual freedom civilly, states that all men (humankind) are created, not born equal.

"We hold these truths to be self-evident, that all men are created equal,that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty, and the Pursuit of Happiness."

Is there a difference between human life and a human being? That’s where we’ll go next.