Abortion has weighed on this country for 35 years, not only because it is a very emotional issue, but also because abortion touches on so many other issues as well. It is not just about Female Reproductive Rights, the Rights of the Unborn, the Right to Privacy, etc. It is also about Male Reproductive Rights, Parental Rights, Rule of Law, and Personal Responsibility. I do not believe there is a solution that could possibly please all the people all of the time, but I do believe there is an abortion position that does the least amount of violence to all of these rights and principles. Here I present a grand unifying theory on the power of abortion, reproductive rights, and parental rights that does just that. I call it the Pro-Rights abortion position.
The 10th Amendment states:
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
The authority and power to decide whether a woman may or may not have an abortion is not a power granted to the United States Federal Government, nor is is a power prohibited by the Constitution to the States. Therefore the Power to decided whether a woman may or may not have an abortion is one that is reserved to either the States respectively or to the People. The question then is whether it is the States or the People to which this power is reserved.
The 14th Amendment states:
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."
The key word there is 'born'. As a practical matter we do not abort children a day before they would naturally be born because it is obvious the child is capable of surviving outside of the womb. A child that is capable of surviving outside the womb should be considered the same as having been born, with regards to citizenship, because it is capable of doing so. A fetus should achieve citizenship as soon as it is able to survive independent of the womb.
Accepting that the word 'born' implies "an ability to survive independent of the womb", the 14th Amendment becomes clear that until such time as a fetus is capable of surviving outside the womb, they are not a citizen of the United States. If the unborn is able to sustain it's own life outside of the womb then it is indeed a citizen, and the state's interest is clear as it has a responsibility to protect the child's right to life, liberty and the pursuit of happiness. If the fetus cannot sustain it's own life then it is not yet a citizen, and has no rights that the state is authorized to protect. As such, the Power of Abortion is the People's until such time as the unborn is capable of being born at which time the Power of Abortion is accorded to the States. Functionally this means that the Power of Abortion is the people's during the First and Second Trimesters, and the state's during the Third Trimester.
During the First and Second Trimesters which People have the Power of Abortion? As the fetus is not considered a citizen before the Third trimester it can only be considered property during the First and Second Trimesters, but whose property?
Each of us owns our own body. This is a self evident truth that our country is built upon. No man can own another, no government owns any person. Our bodies are our own. Our organs cannot be taken from us unless we give consent for them to be taken by signing up as an Organ Donor, our blood can not be taken unless we decide to donate it, and we own our genetic material. The fetus is made up of equal amounts of genetic material from a man and a woman and as such they have joint ownership of the fetus. It is the consenting act that results in impregnation that represents the deepest of social bonds. Throughout human history humanity has acknowledged that both man and woman bear equal responsibility to the life they are bringing into this world. In all other respects, both the man and the woman have equal say over the fate of their child. Why should decisions regarding abortion be any less? All people own their genetic material. It is from that ownership and the bond represented by the consenting act that reproductive rights can be derived.
As it stands now a woman can unilaterally abort a fetus thereby dissolving the deepest of social bonds and the responsibility that goes with it without ever informing the man. She is, for all intents and purposes, destroying his genetic property without his consent. This violates the reproductive rights of half the population. All men and women are created equally. The fetus is equally the genetic property of both the man and the woman under a bond made willingly.
If the fetus was conceived in the course of rape then the rapist by default has forfeited his right to determine the fate of the fetus and the woman should be able to exercise the Power of Abortion as she will. However, if the fetus was conceived with the consent of both parties, then it should follow that it would need to be aborted with the consent of both parties. The man should be informed that the fetus exists and his consent should be gained before an abortion is performed. To do otherwise would deny men reproductive rights.
The state has an interest and duty in safeguarding the genetic property rights of both the man and the woman as it would for any property rights issue. Should a dispute arise between the man and the woman as to whether or not the fetus should be aborted it would fall to the state to arbitrate as it would any other property dispute. If their genetic material were not bound as one there would be no issue. People are free to dispose of their property as they wish. In the case of a fetus, however, the properties are bound together. Destroying the property of one is destroying the property of the other. The state does not have an interest in allowing any citizen to destroy the another citizen's property. A woman aborting against the will of the man is as much a violation of his genetic property rights as a man perpetrating trauma to a woman's stomach to induce miscarriage would violate hers.
In the case of a minor the rights of the legal parent or guardian necessarily supersede the rights of the potential father. A parent's or guardian's permission is required for every other medical procedure, not to mention relative inconsequential matters such as a school trip. It makes no sense that a parent would not have authority, in regard to their under aged teen, over the very significant medical procedure of abortion. It is in the State's interest to support and respect the integrity of the family unit, as the family is the foundation of our society. A minor should be required to have the consent of at least one parent before an abortion can be legally performed.
Should complications arise and the unborn were to pose a threat to the life of the potential mother, then her own vested interest in life and liberty takes precedent over rights of any parents, guardians, or potential fathers.
There are three types of amendments to the Constitution that would alter this argument. Those amendments would need to redefine what a citizen is, to redefine a citizen's natural ownership of their body, or to outlaw abortion specifically. The likelihood of any one of these amendments being passed is slim at best. It is a reality that a significant portion of America would oppose each of these measures, ensuring that none of those amendments would pass.
The Pro-Rights Abortion position is consistent with the Constitution as written. Above all else, this nation is a nation of the Rule of Law, before which all people are equal. This Pro-Rights Abortion position would bring our nation closer to that ideal. It treats Men's and Women Reproductive Rights as the same, with no double standard. It places responsibility square on both parties, being both fair and unfair to both equally. It treats abortion as a Private Issue between the potential father and potential mother, until the fetus itself satisfies conditions for citizenship. It respects the Rights of Parents to raise their children as they see fit.
The Pro-Rights Abortion Position does not address whether or not it is life or whether or not the woman has a choice. Viewing the issue though an emotional lens will not satisfy either side of the argument and ensures deadlock on the issue. The Pro-Rights solution views abortion as a matter of citizenship and property rights. In doing so it offers something to like for both Pro-Choice and Pro-Life advocates.
Granting both women and men the same reproductive rights would be logically consistent for Pro-Choice advocates, extending choice to everyone. Here to for, men have been disfranchised from their reproductive rights. What reason would they have to deny men suffrage in regards to the power of abortion?
This argument should also appeal to Pro-Life advocates by firmly restricting Third Term abortions and by making abortions harder to obtain during the First and Second Trimesters. The Pro-Rights position is also a Pro-Family abortion position because it maintains that any abortion decision should be made by the family, whether parents to be or between parent and child. The Pro-Rights position also encourages a culture of responsibility, because both parties could not be sure if the other would be willing to have an abortion and they may find themselves stuck with their choice. America offers freedom, but not freedom from consequence.
We have not been able to resolve the abortion issue in this country because the majority of Americans are uncomfortable with the pure implementations of both of the existing positions. Much of the debate over the Power of Abortion in this country has been about where to draw the line in between those two positions. The Pro-Rights position navigates the middle, where most Americans happen to stand on the issue, by seeking to do the least amount of violence to the many Rights and Principles the issue touches upon. Because of that it is my belief that the majority of Americans would be able to live with a Pro-Rights solution just fine, and the country would be able to gain consensus on the issue.
- John A. Brill
Cross Posted at Redstate