The Right to Choose Includes the Right to Choose Life
The Right to Choose Includes the Right to Choose Life
by Alan M. Dershowitz, The Gatestone Institute, March 16, 2017
The Supreme Court justices who decided Roe v. Wade, photographed in 1972.
There is no conflict between the "right to choose" and "the right to life" in the context of abortion, because the former includes the latter. If the state were ever to require a pregnant woman to undergo an abortion -- as China in effect did with its "one child" policy -- there would be a conflict. But in the United States, the right to choose includes the right to choose life rather than abortion. It also includes the right of women to choose abortion for themselves.
So, what are the anti-abortion right-to-life advocates complaining about? They do not want any woman to have the right to choose abortion for herself. They want to have the state chose for her -- to deny her the right to choose between giving birth to an unwanted child and having an abortion.
They believe that abortion is infanticide -- murder -- not of their child but of the fetus of the woman who would choose abortion. But that woman does not regard the fetus as her child. So, the right to lifer responds: it doesn't matter what you think. It matters what the state thinks. The vast majority -- 70% -- of citizens the United States think a woman should have the right to control her own reproduction -- to choose whether the embryo or the fetus becomes her child, according to a Pew study this year.
If a woman has been impregnated while being raped, she may not regard the fetus as "her child." The same may be true of other unwanted pregnancies, such as those of teenagers who mentally and physically may be unable raise or care for a child for the rest of her life. The problem is what the late Senator Daniel Patrick Moynihan called, "Children having children."
What gives other people the right to decide, when they are not the ones who will have to bear the consequences?
So, the issue is not whether there should be choice, but rather who should make the choice. What is more than ironic that so many conservatives, who believe that the state should not make other choices for its citizens, insist on the state making this highly personal choice for all women.
Right-to-life extremists argue, of course, that no one has the right to make any choices that will result in the destruction of an embryo or fetus. It is their business, they insist, to prevent the pre-meditated "murder" of every potential life, even that being carried by a stranger, who honestly believes that her unwanted fetus is not yet a "life" -- at least for the first trimester or so -- unless she chooses to give birth to it.
These right-to-lifers would go so far as to require a young girl who was raped by her drunken father to bear that child. It is not the fetus's fault, they would argue, that it was created by incestuous rape. Let it not be killed for the sin and crime of the father.
Those right-to-lifers who would make an exception in such extreme cases -- and most elected officials who claim to be right-to-life advocates do support limited exceptions -- must acknowledge that they are supporting the right of the pregnant girl, rather than the state, to choose whether to abort or give birth. Why then should other pregnant females who have compelling reasons -- medical, emotional, familial, religious, financial -- not have the right to choose? Why should the impersonal state take that right from them?
The issue of "who decides?" is a complex one in a democracy governed by the rule of law and the separation of powers. In addition to the personal question, we must also ask the jurisprudential question: "Who decides who decides?" Is it the legislators in our 50 states who decide whether it is the state or the individual who gets to make the choice? Is it the members of Congress? Is it a majority of the nine Supreme Court justices?
This is not an easy question, even for those of us who strongly support a woman's right to choose, as a matter of morality, justice or religion. Not every moral or religious right is a constitutional right, enforceable by the Supreme Court. There is nothing explicit in our Constitution regarding abortion. There are vague references to the right of individuals to be "secure in the persons," which imply a right of privacy. But there are equally vague references to the right to "life." Any honest reading of the words, history and intended meaning of the Constitution, must lead to the conclusion that the framers did not consider the issue of abortion. They did not explicitly include either the right to choose or the right to life in the context of the abortion debate: it was not occurring at the time of the framing. But the framers almost certainly did include the power of future courts to give contemporary meaning to the open-ended words they selected for a document they hoped would endure for the ages -- as it has done.
In 1973, the Supreme Court did interpret the Constitution to accord pregnant women a right to choose abortion, at least under some circumstances. This decision, Roe v. Wade, was not the Supreme Court's finest hour with regard to constitutional interpretation. Many scholars, including me, criticized its reasoning and methodology. But it has become the law of the land. Over the past 44 years, it has been slightly changed by subsequent cases, but its core has remained the same; a pregnant woman has the right to choose whether to abort the fetus or give birth to the child. The debate continues around the edges: when does "life" begin? When, during the course of a pregnancy, does the right to choose end? But at its core the right of a woman to choose -- abortion or life -- remains solidly ensconced in our jurisprudence.
Alan M. Dershowitz is an American lawyer, jurist, and author. He is a prominent scholar on United States constitutional law and criminal law, and a leading defender of civil liberties. He is now Professor Emeritus of the Felix Frankfurter Chair at Harvard Law School.
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This is bound to be controversial. Perhaps those who criticize The Gatestone Institute as being far right wing might be suprised to see a liberal viewpoint voiced from that medium.
IMO Dershowitz did a service to all that would read it.
What I found interesting was this paragraph.
The issue of "who decides?" is a complex one in a democracy governed by the rule of law and the separation of powers. In addition to the personal question, we must also ask the jurisprudential question: "Who decides who decides?" Is it the legislators in our 50 states who decide whether it is the state or the individual who gets to make the choice? Is it the members of Congress? Is it a majority of the nine Supreme Court justices?
Each of the deciders are overwhelming male. I doubt under any circumstances that a male could understand what a women goes through if she has to make a decision to abort. Yet many seem to feel that they do and can make that decision for a women.
Good article Buzz.
doubt under any circumstances that a male could understand what a women goes through if she has to make a decision to a
Do you think anyone can understand what's it like to have your head punctured with a scissors and your functioning brain vacuumed out? Funny how the rights of the ones to be killed just get passed over.
Out of curiosity, do you support the death penalty?
Yes. Innocent life deserves protection, takers of innocent life do not.
I see. Too bad about the mistakes that have been made, eh Sean? Can you picture yourself in that situation? I guess as well that in your mind there's no possibility that the lives that have been taken by those who are executed just might NOT have been innocent? What is the death penalty other than REVENGE? How effective of a deterrant is it when a jury might refuse to want to be party to killing a human being? Most civilized western countries have banned the death penalty, obviously for good reasons....but then, there is the USA, eh?
What is the death penalty other than REVENGE?
For one, it keeps killers from killing again.
Most civilized western countries
So you believe China is an uncivilized country then?
Sean,
I am fine with your personal beliefs, but please don't make them mine. I personally don't feel I am murdering anything in the first trimester. That is my belief.
And Buzz does make an excellent point about the death penalty. There have many who were put to death for a crime they didn't do.. and many who were sitting around innocent, who were robbed of years of their life waiting to die. You seem to have no issue with that. These are living breathing people, not a group of cells that might become a person. How do you rationalize that?
No one is forcing you, or anyone you know to do something you feel is wrong. But please don't force anyone else to do something that they feel they can't live with.
I am fine with your personal beliefs, but please don't impose them on me.
That's what living in a civil society is Perrie. Laws are nothing if not the imposition of a set of beliefs on citizens who are bound by them whether they personally endorse them or not. Unless you an anarchist, your objection seems silly.
In fact, the Roe legal regimes forces me to be complicit in a society that allows babies to be murdered until they are 100% free of the birth canal. So recognize that your support for Roe does in fact place a burden on those who object to the killing of viable humans. I am forced to financially subsidize your beliefs, Perrie.
To lessen the imposition, let's repeal Roe and let the people actually decide what sort of society they want to live in. Repealing Roe will allow abortion to continue, but it will no longer be imposed on those areas of the country that don't want it.
Finally, you avoid the person whose rights are getting imposed on, the baby. The viable baby is legally treated like a slave pre-civil war, it's rights to life are simply ignored in favor of the property rights of others.
You seem to have no issue with that.
Spare me Perrie, that's absurd. Tell me, does your support for abortion mandate you support the death penalty? Or are you capable of drawing a distinction between two vastly different topics.
No one is forcing you, or anyone you know to do something you feel is wrong
I'm forced to subsidize abortion. But again, it's not about me, its about the human who whose rights you continue to ignore. It's amazing how you continuously ignore the rights of a viable child.
Your argument is exactly what the pro-slavery crowd said about the abolitionists. What do you care? No one is forcing you to own slaves and no one is saying that you personally, have no right to life, so why should an abolitionist be bothered by slavery?
China isn't a western country.
Right, We can't hold yellow men to the same standards of civilization that we do Europeans. Executions are fine for passes for civilized among orientals, but no truly civilized person could support them, right?
I guess you don't think the east is as advanced morally as the west, yet. Might white of you.
You are making a totally ridiculous argument. I don't think the death penalty is civilized no matter where in the world it is practised or what colour those who practise it may be. As it happens, when I see from afar what has been happening in the USA while being personally aware of what life in China is like, it's hard for me to determine which country is more or less civilized. Consider which countries have in fact banned the death penalty. But that's beside the point and you have done nothing more than diffusion or derailing because you're unable to make an intelligent argument against the author's theory. I consider your absolute ban on abortion while supporting the death penalty to be hypocritical. What you did not address is that the article speaks of a woman's choice as opposed to the State making the choice, and your original inflammatory statement was made because you cannot fault his argument logically.
My mother's first chlld was born stillborn, but that was almost 90 years ago before the technology was sufficiently advanced for her to know what was going to happen. My brother and I are thankful that in her case the trauma was overcome enough for her to try again.
On the top floor of Toronto's Hospital for Sick Children there is a ward where care is provided for monsters born because the mothers did not abort, notwithstanding that with our advanced science and technology such horrors were detected early enough. The mothers are unable even to look at them let alone care for them during their short lives. You should apply for a job there.
You are the one who made the distinction about what constitutes civilization based on where the country is located, not me.
I may have overstepped by using the word "civilized" although I am of the opinion that use of the death penalty is not civilized. I was thinking more in line of what Wikipedia indicates"
"Historically, capital punishment has been used in almost every part of the world. Currently, the large majority of countries have either abolished or discontinued the practice. The U.S. is the only Western country to use the death penalty."
Legend
(Red) Retentionist countries: 55
(Brown) Abolitionist-in-practice countries (have not executed anyone during the last 10 years and are believed to have a policy or established practice of not carrying out executions): 31
(Green) Abolitionist countries except for crimes committed under exceptional circumstances (such as crimes committed in wartime): 6
(Blue) Abolitionist countries: 103
I support the death penalty in extreme cases (mass murders, child murders, etc.) and that are way beyond a reasonable doubt (Timothy McVeigh, Dylan Roof etc.) but:
For one, it keeps killers from killing again.
So does life without parole.
hey did not explicitly include either the right to choose or the right to life in the context of the abortion debate: it was not occurring at the time of the framing
It absolutely was. Abortificants were well understood in colonial America and 18th century England and people in colonial America were prosecuted for murder for administering them to pregnant women.
The founders knew abortion existed. They ignored it in the document because the point of the Constitution was to limit and expressly delineate the powers of the federal government. The idea that they would be "okay" for the federal government to dictate it's opinions on the subject to the states without an amendment is simply preposterous and a willful misstatement of the intent and structure of the document.
I'm still waiting for you to define where you draw the line on abortion. Would you rather a pregnant woman or girl die than have a life saving abortion? Would you rather subject a fetus and family to a life of misery than to abort a severely handicapped fetus? You have unwavering opposition to abortion in general, but you never answer the question when I ask you, so I'm thinking you would answer yes to both.
The founders knew abortion existed. They ignored it in the document because the point of the Constitution was to limit and expressly delineate the powers of the federal government.
Wow Sean, you look great for a guy over 250 years old. Seriously....
How do you know what the founders were thinking? Women were hardly a blip on their radar, since they couldn't hold office, vote, hold property if they had a husband... do you really think they even gave it a moment's thought about what they would feel about abortion?
Let's get real here and put this discussion into a current context.
"Wow Sean, you look great for a guy over 250 years old. Seriously...."
Fortunately, we have written histories. We are not limited to what we observe on our lifetime.
Sean,
I hope you took my comment about your age as J/K.
My point is, you made a comment about our founding fathers that can't be proven. From what we know about the times, there was little in way of medical intervention, woman died in childbirth, and it was accepted as part of life, and the guy remarried, and that new wife was expected to take care of the dead wife's child. Women had little to no influence in home affaires and none politically, so why would our founding fathers address what they considered a non issue?
The point is that abortion did exist then, but there was no interest in creating a right to it.
The point is that abortion did exist then, but there was no interest in creating a right to it.
Yeah, along with not granting rights to women. What are you not getting? We are talking about something that affects women, in a time when women were not regarded. It doesn't matter if it abortion existed... because no one cared what a woman thought. Hence, why voting rights to women didn't happen for another 1920. Women existed you know.. they just didn't think of them as full people, so why even consider abortion. BTW, I just checked and our the framers of the Constitution did take into consideration abortion:
When the United States first became independent, most states applied English common law to abortion. This meant it was not permitted after quickening , or the start of fetal movements , usually felt 15–20 weeks after conception. [5] James Wilson , a framer of the U.S. Constitution , explained the view as follows:
That excerpt proves my point nicely. Dershowicz is either lying, or simply ignorant.
The founders knew what abortion was and didn't create a right to it. The Constitution is silent on the topic. If you want to make it a constitutional right, pass an amendment. That's how the country is supposed to function. Not a handful of unelected judges imposing their personal beliefs on the country.
Women had little to no influence in home affaires and none politically, so why would our founding fathers address what they considered a non issue?
Not only were they silenced politically, in most cases they could not inherit property. If a woman was married and her father died, her father's property went to her husband, not to her, which is why a lot of men went out of their way to marry women based on how rich in money, property and even slaves their father had knowing it would likely be theirs someday.
How do you know what the founders were thinking?
I'm literate and thus am able to access documents demonstrating that abortificants were common knowledge prior to the founding. There was actually a commercial trade in them in the colonies.
The idea that abortion was simply unknown to the founders is simply preposterous. The obviously didn't think it was a matter for the federal government to impose its will upon. It was ignored and thus left to the states.
Such as what, Sean? Abortifacients, like what? The dreaded hat pin? I'm curious. Please educate me about the abortion of a fetus in colonial times. You seem to know so much about it...
Thanks, Cerenkov, but that doesn't tell me much. What it did tell me was until about 1860's, abortion was legal throughout much of North America.
Yes. Fewer government laws and regulations then.
I can't help but think that if it was such common knowledge, Thomas Jefferson would have made it available to his wife, whom he adored, who died shortly after childbirth of her last child. She had a bad kidney/bladder ailment, and having children was very dangerous to her. With everyone having such a fit over Thomas Jefferson's dalliance with her maid, who happened to be her black half sister, he would have done anything to save her life. He never ceased to grieve for her. I don't know it was all that available or common, back then. The cranberry drink that she took every day required a great deal of trouble to get to Monticello, I have read.
I feel sure that, had that been readily and easily available, Mrs. Jefferson would have considered it-- to save her life. I know she drank a cranberry concoction, every day, to keep herself well.
I looked up black root, and it is from the Culver Plant-- a native perennial. In fact, I've grown it before, because it is a strikingly beautiful native plant. But I had no idea that was one of its uses. Nor does anywhere else signify it as an abortifacient.
Needless to say, even I know what a cedar root looks like. I have no idea how one would prepare either of these for use, (nor do I want to know).
But, it could have been along the lines of taking arsenic to make your skin pale... Meaning: a bad idea.
I find it pointless to actually debate abortion. Yes, everyone has an opinion. And because of the nature of the process from conception to birth, and the religious implications for some, (which are a matter of faith), neither side can be proven right or wrong.
In America there has been a compromise "consensus" for many many years, (abortion is permitted in the early stages) and I expect that is the way it is going to be for a long time to come (unless right wing zealots take over the Supreme Court).
I expect that is the way it is going to be for a long time to come (unless right wing zealots take over the Supreme Court).
I guess that depends on what the political views are of the president appoints the next Supreme Court justices over the next few years.
America there has been a compromise "consensus" for many many years, (abortion is permitted in the early stages)
No John, that's not true. Abortion is legal until delivery. You are repeating a bill of goods that has been sold to you that doesn't stand up to a second of scrutiny.
The Right to Choose Includes the Right to Choose Life
Obviously. It has never been different here in the U.S., among the pro-choice people anyway. Why would anyone want to change that?