It's been some 34 years since Roe v. Wade and the issue of abortion still dominates politics like a cancer. In case that doesn't make my position clear, allow me to clarify: I'm anti-abortion. I think abortion, as a "reproductive choice", is morally repugnant. It's a method that allows men -- and women -- to escape the consequences of their actions (i.e., sex). (I emphasize men because in survey after survey, a greater percentage of men support abortion than do women.)
Now that that's clear, let me make a few other things clear. The abortion "right" exists only as a result of a judicial construct. There is no such "right" in the US Constitution. Nine men in black robes created the right one day, some 34 years ago.
The problem with such a "right" is that some day, nine men in black robes can take it away.
Neither side of the issue really seems to want to tackle that point. If you are truly anti-abortion, why aren't you pushing for a Constitutional amendment protecting the life of the unborn? If you are truly pro-abortion, then why aren't you pushing your elected officials to codify that "right", i.e., create a Constitutional amendment?
Lo and behold, I find that the pro side, since 2004, has been working on a sorta solution. It is S.2020, authored in part by California US Senator Barbara Boxer, and bears the short title "Freedom of Choice Act" (FOCA). After a string of "findings", it declares a "Statement of Policy":
It is the policy of the United States that every woman has the fundamental right to choose to bear a child, to terminate a pregnancy prior to fetal viability, or to terminate a pregnancy after fetal viability when necessary to protect the life or health of the woman.
Nice, a straight-forward codification of the Roe Court's reasoning. Too bad it's immediately unconstitutional.
I have two women friends whom I hold in high esteem. One just turned 30, the other is in her early 50's. They have divergent pasts, radically different life experiences. Both have, on separate occasions, stated to me that they are pro-abortion.
I always say, "Oh, really? Any time for any reason?"
They are taken aback. Oh no, they protest, during the first trimester, or in the case of rape or incest.
Ah, the old "rape or incest" loophole. Roughly 1.5% of all abortions deal with pregnancies resulting from rape or incest. We turn, then, to the remaining 98.5%.
Roe instituted the trimester approach, saying that during the first trimester a woman had an unrestricted right to an abortion. During the second trimester the state could regulate abortion to a limited extent, consistent with the health of the woman. And during the third and final trimester, the state could completely restrict abortion as long as allowance was made for the health of the pregnant woman.
This is the right and law, as understood by my friends and almost every other man and woman I know and talk to about abortion. Unfortunately, it's not the law of the land, as handed down in Casey v. Planned Parenthood of Pennsylvania. Casey "affirmed" Roe's finding that a woman has a right to an abortion. However, Casey eliminated the trimester approach, saying that the state could not prevent a woman from having an abortion. Period. That means at any time during her pregnancy and for any reason...or none at all. (This, as an aside, leads to the infanticide commonly known as "partial birth abortion".)
When I tell my friends what the "law" of abortion actual is, they are shocked. They have no desire to support such an unrestricted "right".
The FOCA allows unrestricted abortion up to viability (a constantly moving target, as medical science marches on). What happens after viability? My reading of the FOCA is that the feds or the states are free to prohibit abortions after viability as long as such prohibition allows for the health of the woman (e.g., continuing the pregnancy would result in the woman's death or serious injury).
This applies Roe, but flies in the face of Casey. Casey doesn't allow any such restriction. Under Casey, abortion in the United States is available at any time during the pregnancy, for any reason (or none at all). Ergo, FOCA is unconstitutional right from the get-go. Since the FOCA is a statute, the constitutional interpretations of the Court in Casey rule. While the FOCA allows for regulation (and prohibition) after viability, Casey says you can't prohibit abortion at all. You can regulate certain aspects (e.g., parental notification laws) but you can't prohibit a woman from seeking an abortion at any time during her pregnancy. So, the FOCA loses to Casey, black letter law, done deal.
Which is what makes this proposed act so disingenuous. The pro-abortion folks would trumpet the FOCA as the people speaking, through their elected officials, in favor of a woman's right to choose. They say this, however, knowing that if a state were to act on the FOCA, by enacting prohibitions on post-viability abortions, Casey would come along and smack down those laws.
If the FOCA were passed as a Constitutional amendment then it would be a legislative over-ruling of the Court. Casey would go bye-bye. The legislature can do this. That's their check and balance on the judiciary. If they did this, then it would be an honest implementation of an abortion right, as well as allowing post-viability regulation, up to and including prohibition (allowing, though, for health of the woman).
As said, I'm anti-abortion, but I would enthusiastically invite the introduction of the FOCA as a constitutional amendment. It would spur the national debate that was silenced by the Court in Roe, and further muzzled by Casey. If the proponents could muster the votes and if the FOCA became a part of the US Constitution, I'd still be anti-abortion, but I'd swallow the results because I also believe in the rule of law. It's judicial fiats like Roe and Casey that I despise.
So, c'mon, Senator Boxer, et al, bring it on. To hell with a Federal statute. Go for the big time, go for the constitutional amendment. Bring on the debate and let the people, via their elected officials, have a voice.
Which won't happen because that debate is precisely what Boxer, et al, are afraid of.
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