I am a regular reader of the New York Times, and I must admit that I often sympathize with the assertion of many conservatives that the Times is biased toward the Democratic party. However, I think this concern is much overstated. The Times routinely portrays both sides of issues on the Op-Ed page, and also in factual reporting. Biases of omission, or phrasings that seem to make value judgments rather than report fact, do occur and tend to occur in a decidedly liberal direction, but if there is real persistent bias in the Times, I would say that it has to do primarily with the persons they choose as representatives of various positions and people-groups. For instance, the Bush administration is taken to represent all conservatives (sometimes even all non-Democrats), Pat Robertson is taken to represent all Evangelicals (sometimes even all Christians), etc. When the debate on certain issues is represented as being between the Bush administration and a few leading Democrats in the Senate, without considering other positions, biases of omission that make both sides appear extremist and tend to motivate alarmist positions are a common result. What I want to point out here is a one-line comment about abortion in this article about the Alito hearings. After reporting some sensationalist remarks by Senator Durbin to the effect that Alito might become a decisive vote illegalizing abortion because of his statement some years ago that abortion was not consitutionally protected, the Times comments, "Overturning Roe would not make abortion illegal but would leave the question in the hands of states."
Now the staff editorialists of the Times are, I would say, even more vehemently anti-federalist than anti-Bush. I remember seeing a staff editorial during the Roberts hearings about how the increasing federalism of the Supreme Court could undermine all the functions that we have become used to the "national" (I hesitate to use the word "federal") government performing. However, this comment is very well placed, and brings about a very important question. Why is this outcome so unacceptable? After the re-election of President Bush, many liberals began to make sarcastic remarks about "blue states" seceding. If liberals are so opposed to living under the rule of the Republican leaders the majority of the nation elects, why is it that they are also opposed to limiting the power of those same leaders, and leaving decisions about these divisive issues on the state level? Everyone seems to see the abortion debate as centering around the Roe v. Wade decision and I don't understand it - Samuel Alito doesn't seem to either. Alito keeps saying that Roe was substantially modified, though also substantially upheld, by Planned Parenthood v. Casey. Furthermore, these decisions are about what the government can and can't do. Why are liberals so afraid of allowing this issue to be decided by the proper legislative process? Why does it belong in the judicial branch?
The above notwithstanding, I think there does exist a good reason why the Supreme Court has been making deicsions on abortion: it is indeed, just as the fanatics on both sides point out, an issue of rights. The question is really about whether the fetus has a right to life and whether this right trumps the mothers right to exclusive control of her body, and this is a very difficult issue. It seems to me that even if the fetus was not a person but only a potential person, it would have at least some rights, and these rights would probably increase as it went to term (Jewish law sees the issue this way). However, it seems to me that it makes a lot of sense to say that the fetus is a complete person from the perspective of legal rights from the moment of conception (the fetus is at this point a living organism with unique human DNA, and that seems like a reasonable definition of person for the purpose of legal rights), and if not at conception certainly at first brainwave (although this makes the issue far more difficult, as not all fetuses have their first brainwave at the same number of weeks after conception, and detecting brainwave activity is difficult). This makes the case (at least after first brainwave) like the case of an unwanted guest who somehow comes to be in your home through no transgression of his own (e.g. he stumbles in during a blizzard, quite by accident). Now, certainly it would be wrong to actively kill this individual in the course of removing him from your house, which, I understand, is what happens in "partial birth" abortions. But what if you remove him from your house, back into the blizzard, without your personally doing any active harm to him, but knowing that he will die of exposure? Certainly this is immoral, but ought it to be illegal? I lean toward yes on this issue, but I'm not entirely sure. The thing to do, if you are unwilling to take care of this person, is to call the police to come and get him. But what would happen in a "state of nature" with no government? Or what if the police can't get there? How long are you expected to keep him in your house? If there were no police, would you be expected to find someone else to take care of him? If he had a "right" to be taken care of in that way, that would be a "positive right," therefore he has no such right. Furthermore, there is no real analogue to just calling the police in the abortion case (although we can imagine a situation in which the government or some charity will pay for the cost of removing the fetus and transplanting it to a willing host, and technology is not far from being able to make this happen, I think), so what happens here? Does the analogy break down at this point?
Weighing these kinds of questions about rights is one of the primary things that the Supreme Court does, and so it certainly makes some sense that abortion cases would come before them. However, the Supreme Court is only supposed to deal with rights protected by the Constitution, not with all "natural rights" (although one may claim that the 9th and 10th amendments are intended to protect all natural rights) - if we discover new natural rights that aren't in the Constitution, we should amend it. The Supreme Court may be right to say that if a woman is prohibited from having an abortion in a case where she will die if she does not, she is "deprived of life ... without due process of law," but does the fetus have due process rights as well? This at least is an issue of Constitutional interpretation and belongs in the Supreme court. The first section of the 14th amendment reads:
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. 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.
Suppose, however, that the fetus is not protected by the 14th amendment (or any other part of the Constitution), and that the mother's life is not endangered. How is this now a constitutional issue? Why should the Supreme Court make decisions in this case? Does anything in the Constitution really have to do with this decision? If not, it should be decided by legislatures, preferably on the state level (unless Article I Section 8 gives some kind of authority to the federal government to handle the issue).
These are just some thoughts, and not necessarily a considered position. I think this issue is much more complicated than most people on either side want to admit and, further, that the Bible is not so clear as most Evangelicals want to admit (most of the arguments from Scripture I've heard would lead to the conclusion, once taught by the Catholic church, that there was a moral duty to attempt to ensure that every time a man ejaculates it results in the creation of a child, since the Bible is always saying that God knew us before we were conceived, see e.g. Jeremiah 1:5, Psalm 139:16 - this is of course also connected with the theory of Van Leeuwenhoek and others that humans are "pre-formed" in either sperm or ova). As I said, I lean toward the position that the fetus is a person from conception and should therefore be protected, I just think that there is more room for doubt than most people want to acknowledge. This gives rise to the question of what the government ought to do when acting under uncertainty in cases like this, an issue I hope to address in a later post.Posted by Kenny at January 12, 2006 5:09 PM
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