This year’s March for Life, the country’s largest annual anti-abortion rally, will surely call renewed attention to aggressive anti-abortion laws on the state level. It will be the first march since the passage of these laws last year, which had groups from social workers to Hollywood showrunners calling the laws “punitive” and “grotesque.”
Far less attention, however, is being been paid to states that have gone far in the other direction.
In direct opposition to Alabama’s and Georgia’s anti-abortion laws, Democrats in Illinois passed a bill last summer that allows for partial-birth abortion, noting that “a fertilized egg, embryo, or fetus does not have independent rights under the law, of this State.” That allows for abortion at any time during pregnancy — up to the very moment of live birth. New York’s Reproductive Health Act legalized abortion past 24 weeks if the woman’s health is at risk, but state law does not define what is meant by “health,” essentially opening the law up to a doctor’s interpretation and allowing for full-term abortion in questionable circumstances.
Most disturbing, however, was the Kansas Supreme Court decision last April that women have the right to an abortion under the state constitution, arguing that the document protects the right of women to “decide whether to continue a pregnancy.” That claim, amazingly, turns on the very fact that the Kansas Constitution opens by quoting the Declaration of Independence: “All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.”
We have now come to the point where both positions in this debate, anti-abortion and pro-abortion, claim the moral high ground of America’s first principles as the standard of their cause. How is that possible?
The anti-abortion cause looks to the Declaration of Independence, which holds that all are equal based on “the Laws of Nature and of Nature’s God.” America’s founders believed that humans have a unique and distinguishing nature capable of deliberation, judgment, and choice. As such, individuals are morally accountable for their actions and decisions. This responsibility distinguishes man from the other animals, makes them capable of self-government, and dignifies them by their nature with equal and inalienable rights.
From the founders’ point of view, these rights are possessed inherently by each and every individual and are secured and protected equally through the constitutional rule of law. By this argument, there are not and cannot be such things as “women’s rights,” “men’s rights,” “black rights,” or “white rights.” Associating the legitimacy of rights with skin color, sex, interest group, or any other arbitrary distinction gives rise to frivolous rights claims and endless battles for political power — and denies the basis of human equality and equal rights.
The 14th Amendment, adopted in 1868, prohibits depriving “any person of life, liberty, or property, without due process of law.” In dictionaries of common and legal usage at the time of the 14th Amendment’s adoption, the terms “person” and “human being” were defined interchangeably. If an unborn baby is indeed a human being, then his or her right to life ought to be constitutionally protected. Common law precedent leading up to 1868 also indicates that the unborn were considered legal persons.
An interesting parallel can be drawn between today’s debate and those leading up to the Civil War.
The Clinton administration’s policy was to make abortion “safe, legal, and rare.” Two decades later, abortion is not “rare” but commonplace — there are now about 1 million abortions each year. And the claim that abortion is a public good has become normalized. Similarly, at the time of our country’s founding, slavery was considered overwhelmingly a “necessary evil” that was wrong but had to be tolerated at the time for the sake of establishing a nation based on the principle of freedom. But by 1837, John C. Calhoun and his pro-slavery followers argued that human slavery was actually a “positive good” to be protected and celebrated. Pro-abortion advocates are increasingly making this argument to garner public support — just as pro-slavery advocates were doing almost 200 years ago.
The Supreme Court’s Roe v. Wade decision in 1973 by no means settled the abortion debate. Instead, it built a nationwide fire and then gave it fuel. The wave of abortion and anti-abortion laws we see today raise political, legal, and moral questions about how this country necessarily decides questions about the right to life.
How the country goes down this path is a matter of prudence. Should those decisions be step by step or decided in one fell swoop? If a state’s laws get too far ahead of public opinion, they are very likely to fail. According to the Washington Post, for example, 4 out of 5 people in Alabama opposed the state’s new law. A more prudent approach would implement restrictions gradually: Heartbeat bills, for example, will likely achieve greater public support than laws banning abortion outright. And those decisions would more likely push a successful case before the Supreme Court.
The more important question, though, is the principle that will guide these decisions. “Public opinion, on any subject, always has a ‘central idea,’ from which all its minor thoughts radiate,” President Abraham Lincoln once wrote. Our central idea, at the beginning and until recently, is that all are equal and possess equal rights by nature. Getting that right and restoring that idea in the public mind will determine not only how this debate proceeds but also, in the long run, whether we shall be secure in our rights to life, liberty, and the pursuit of happiness.
Matthew Spalding is Dean of Hillsdale College’s Van Andel Graduate School of Government in Washington.
