By Bruce Ledewitz
We keep hearing that recent anti-abortion legislation in Alabama and elsewhere represents a “radical” position.
This criticism assumes there is such a thing as a “moderate” pro-life stance. Yet, we never actually hear what that moderate position is. There had better be such a moderate position, or the country is going to be pushed to choose between some variant of Alabama’s law, or endorsing abortions so late in pregnancy as to amount to infanticide.
I consider myself a moderate pro-lifer. That means I believe human life begins at conception. I won’t argue that commitment here. It seems to me the only possible science-based position, but I grant that others disagree.
What follows from that starting point, however, is not obvious at all. Take the late Justice Antonin Scalia. He doubtless agreed that human life begins at conception. But he argued in numerous opinions that the regulation of abortion should be left to the States.
He thought Roe v. Wade should be overruled and that each State would come to its own value judgment about abortion.
There was an implicit premise to Scalia’s position that is not usually noted: abortion is not murder. Murder cannot be left to the States, as Scalia well knew.
In constitutional terms, this meant Scalia endorsed the portion of the Roe opinion that held that an unborn child is not a “person” as that term is understood in the due process clause of the fourteenth amendment.
Justice Harry Blackmun’s majority opinion in Roe came to that conclusion on the solid originalist ground that the original public meaning of the word “person” meant humans who had been born. Scalia never suggested that this aspect of Roe should be overturned. In fact, no Justice has ever suggested overturning that holding.
Alabama’s law, however, does treat abortion as murder.
That is why doctors who perform abortions are subject to imprisonment for up to 99 years. True, the mother is not criminally liable under the Alabama statute.
And the doctor is not subject to Alabama’s death penalty. But those are just cynical political ploys by legislators who know the public would not accept those punishments. In keeping with the logic of the statute, the mother should be criminally liable—she hired the doctor, after all — and they both should face the death penalty.
A great deal follows from the judgment that abortion is not murder. First, states would be free to permit abortions.
Second, given the federal structure of our nation, citizens of one State would be free to travel to another State to obtain an abortion.
Generally, citizens are permitted to engage in conduct that would be illegal in their home State. Thus, just as I am free to go to California to smoke marijuana, which would be illegal in my home state of Pennsylvania, a pregnant woman in Alabama could travel to New York.
But, if abortion is murder, the states are not free to deny protection to the unborn. Each person in America is promised life by the Constitution. Nor would citizens be free to travel to another State for an abortion. For that would be kidnapping, followed by murder.
This stark difference in outcome shows that much of the anti-abortion rights movement is not originalist in its legal theory.
Those Alabama legislators believe in the “living Constitution,” in which the constitutional meaning of the word “person” in the fourteenth amendment can change over time.
The current alliance between the anti-abortion rights movement and conservative constitutional theory is nothing more than a marriage of convenience. If Roe is overturned, that marriage will see a quick divorce and much of the anti-abortion movement will pursue full constitutional protection for the unborn.
In contrast, the moderate anti-abortion stance accepts the judgment that the unborn child is not a “person’ for constitutional purposes.
When abortion is seen as something other than murder, compromise becomes possible. The law generally gives great latitude to bodily integrity.
We don’t, for example, force parents to donate kidneys even when the life of their child is at stake. So, especially at early stages of pregnancy, we can recognize the bodily integrity of a woman as a countervailing right to the right of an unborn child to live. Nor are we required, even at later stages of pregnancy, to evenly balance one life against the other.
We can explicitly recognize that the health and welfare of a pregnant woman are more important than the life of an unborn child. Also, where abortion is legal, we can stop short of requiring taxpayers to pay for it.
And we certainly can accept that there will be different legislative judgments in all these areas in different States.
Judgments like these are messy and, in a sense, unprincipled. The two strict principles that are possible in the abortion controversy are that abortion is murder or that a woman’s body is inviolate. The one denies the interests of pregnant women altogether and the other denies that new human life is present in the womb.
Neither principle is fully true. Neither is entirely false. A moderate pro-life position recognizes all that and can legislate accordingly.
Bruce Ledewitz is a constitutional law professor at Duquesne University Law School in Pittsburgh.