In his majority decision overturning Roe v. Wade, Justice Samuel Alito argues that abortion is not a right granted by the Constitution. But where does the Constitution grant the government the right to make abortion illegal?
The Constitution was intended to enable “we the people” to structure and grant authority to the government, not the other way around. That is why many fundamental rights are not mentioned in the Constitution: the right to marry or to have children, for example. The Ninth Amendment explicitly protects those unnamed rights: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
When laws mandate that a woman must carry her pregnancy to term, it means that the state – not the mother – controls her body, the very sort of government overreach the Constitution was intended to protect against. We have seen government overreach at other times in history. Between 1932 and 1972, the Tuskegee Experiment used African American men’s bodies without their informed consent to study the long-term effects of untreated syphilis. Such control is arguably unconstitutional; it is tantamount to involuntary servitude, illegal under the Thirteenth Amendment.
Those who oppose a women’s right to decide argue for the rights of the unborn. Fetuses, they say, are persons and, as such, have rights that must be protected by the state, especially the right to life. Such rights are also not explicitly mentioned in the Constitution, which confers rights only to “persons born or naturalized in the United States.”
But what about the rights of the unborn? A woman who decides not to go through with a pregnancy faces agonizing considerations. She must carefully and responsibly reflect on many personal and moral factors, including the rights of, and consequences of terminating the life of, the fetus. Such factors may range from the conditions under which she became pregnant, the impact that pregnancy could have on her personal health, the stage of the pregnancy when she learns of it, or her religious beliefs. In deciding, she often seeks the counsel of her physician, her faith leader, her partner and her immediate family, as well as others. The decision is rarely simple or easy. But by enforcing antiabortion laws, government removes that decision from the mother even as it mandates her motherhood. Government removes her authority, but compels her responsibility. And we all know who is held accountable in the end.
Democracy is predicated on the idea that citizens are responsible, able to discharge their civic duties, including choosing their representatives and deciding on public policies. How can a democratically elected government in turn refuse to trust those citizens with a responsibility that nature has placed squarely on their – not the government’s – shoulders?
Declaring abortion illegal opens the door to forcing women and men to cede control of their bodies and private lives. Between 1980 and 2015, China adopted a “one-child policy,” which has since been changed to allow up to three children. Some U.S. companies have experimented with installing identification microchips beneath workers’ skins; nearly a dozen state laws have been written to prevent companies from making such chips mandatory. At least one Supreme Court Justice, Clarence Thomas, is of the belief that individuals’ right to access contraceptives should be reexamined.
Men and women alike are implicated in the matter of abortion. And as citizens, we have a responsibility to ensure that our laws do not permit governments, corporations or any other entity to control our bodies. When the Supreme Court determines that government at any level can force a woman to go through with an unwanted pregnancy, it means our individual autonomy, regardless of gender, is at risk.
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