Friday, January 20, 2017

Life and Law -- the Limits

Conflict among us requires law; limits imposed
on our individual freedom for the sake of all.
Must we legislate on behalf of a mother
and her the unborn child?

When my life bumps into yours and we affect each other, then perhaps the law should assert some constraints on our behavior. That's the general context of American jurisprudence, protecting the rights of persons where there freedoms overlap.  We share the roads, the airwaves, the marketplace, the schools, and more by law.

Courts struggle to apply the law to today's question. A person born in this country is a citizen and protected by the Constitution, but an unborn child just minutes away from being born isn't anything.  (Thirty-eight states do have laws identifying the killing of an unborn child as murder or equivalent.)

We're left to work with laws and rulings that have to be stretched to cover the questions.
For an unplanned pregnancy, the interests of the mother are acknowledged by all. She has a measure of autonomy when it comes to decisions she makes about her own body. The problem arises if her body is the shelter for another person.  We understand their needs, but only if both are persons do they both have rights.

Many have been persuaded that there is only one person involved, but that's not in the ruling.
The Supreme Court did not say that the unborn child wasn't a person.  Or that abortion was a constitutional right, or that it was moral or just.    

The last question ...
In its perhaps most controversial ruling, the court did allow for a "right of privacy" which it "discovered" in so-called "emanations" or "penumbrae" of our constitution. The consequences of Roe v. Wade have been culturally divisive and deadly.  

The court did not declare that abortion itself was a constitutional right, morally acceptable, or ethically appropriate.  What the court did say was, "We need not resolve the difficult question of when life begins ... the judiciary at this point ... is not in a position to speculate as to the answer." 

The court went further with a key admission:  "If this suggestion of personhood is established, the appellant's case [i.e., "Roe" who sought an abortion], of course, collapses, for the fetus' right to life is then guaranteed specifically by the [14th] Amendment."

If somewhere along the timeline from conception to delivery, 'personhood' begins, then a line is crossed.  Life does begin before birth of course, and we do have a problem. 

The extraordinary conflict is that everyone knows the child is alive and present before birth, but you can describe it in terms (like 'fetus') that allow you behave as though that were not a fact. Everyone knows. For the expectant woman with limited financial resources, the choice is offered, and she hopes she's doing the right thing.  There are life circumstances that can make that option a less difficult choice than the alternative.

Pro-life and pro-choice advocates agree, no one wants to have an abortion. No one wants to have an abortion, but circumstances along with today's imprecise legal definitions may encourage them to choose that path.

What if this application of the law was made more by preference than by understanding? 

 Ethical resolution will come, one might hope, but it's unlikely to be an easy path.