Political Hay

The Evolving Issue of Abortion

The pro-choicers are prepared to abandon the privacy argument to focus instead on gender discrimination.

By 4.25.07

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Last week was one of both celebration and sadness for who those who hold innocent life dear. Many tears have been shed for the 32 lives cruelly ended by evil incarnate in Virginia, yet the souls of the millions of unborn children -- who have been sacrificed at the altar of inconvenience -- cry out across three decades for sympathy, yet up to now have received little.

Some of that changed with the U.S. Supreme Court's upholding of the Congressional Partial-Birth Abortion Ban Act (PBA), also known as HR 760. A victory, to be sure, toward ending some of the carnage but in many ways only a first step on what will be an arduous journey toward restoring respect for the dignity of life in this country. On the way, both sides in the conflict have been, and will continue to be, ready to adapt their strategies.

Conservatives have long held in contempt prior SCOTUS rulings on abortion and those which paved the way for Roe v. Wade; especially Griswold v. Connecticut, which abrogated states rights in discovering a national right to privacy in the "penumbras" emanating from the Ninth and Fourteenth Amendments to the Constitution. Yet in what some consider a disturbing development, when crafting HR 760, Congress resorted to invoking its right to regulate abortion under the commerce clause of the Constitution (Article I, Section 8).

Congress also changed the wording of its previously invalidated PBA ban efforts, to specify that the grisly act may be performed only if it can be proved that the life of the mother is at risk due to physical complications. This was important, as previous commissions of this heinous procedure were done if the mother's health was at risk due to any reason, such as perceived psychological disorders or whatever the abortionists deemed necessary for the death of the child.

Many on the left fear that the right to privacy defense that their cause previously rested upon may no longer be viable, so to speak, and so they have used part of Justice Ruth Ginsburg's dissenting opinion -- that challenges to abortion laws "center on a woman's autonomy to determine her life's course, and thus to enjoy equal citizenship stature" -- to proclaim that abortion transcends privacy and is now an issue of gender discrimination. Liberal law professor Cass Sunstein, realizing the absurdity of this thinking, nevertheless propounds:

True, men cannot become pregnant, and it is tempting to think that, for that reason, abortion restrictions cannot possibly create a problem of discrimination. But perhaps this argument has things backward. In our society, isn't there an equality problem if laws target only women's bodies and leave men's bodies alone?

Here's an idea, Professor Sunstein: If men and women who are unwilling to raise children would leave each others bodies alone more often -- an oft-ignored "choice" in all of this -- perhaps discrimination against the true victims of this horrific process would end. Of course his twisted logic also ignores the fact that today's men have absolutely no rights in the area of childbearing, only responsibilities.

Still, it is interesting that the abortion lobby is prepared to abandon the privacy issue. Many have noted the brief concurring opinion written by Clarence Thomas and joined by Antonin Scalia, which says that "the Court's abortion jurisprudence, including Casey and Roe v. Wade has no basis in the Constitution." However, he continued with, "I also note that whether the Act constitutes a permissible exercise of Congress' power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it." Sounds like an invitation to me.

Could it be that the pro-abortionists didn't address the commerce clause issues involved in the ban because they fear the domino effect that might occur should the Court's originalists start overturning the many other anti-federalist decisions such as Roe? Having to argue their position in 50 diverse states rather than before a few federal courts would be a daunting task for them indeed.

Supporters of the first right -- that to life itself -- still have a long way to go. We are still burdened with phrases such as "viability" and a "fetus that may become a child," as if, not murdered by its own parents, it could become anything else. We still must abide the irrationality of judges like Ginsburg who state that "the notion that the Partial-Birth Abortion Ban Act furthers any legitimate governmental interest is, quite simply, irrational."

Let us work hard and pray that those who continue to couch the taking of innocent life in terms like "women's health issues" might someday realize that a normal pregnancy is not a disease and that abortion is a voluntary act of infanticide, not a curative treatment. And that the only morally acceptable termination of pregnancy should result in a bouncing baby boy or girl.

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About the Author

Lisa Fabrizio is a columnist who hails from Connecticut (mailbox@lisafab.com).