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Roe and the Role of Government
The Idea That the Legislature Cannot Regulate Abortion is Nonsense
“If some people have sex in violation of this regulation and conceive a child, it should be aborted before the onset of sensation and life. For sensation and life distinguish what is pious and what is impious here.”
- Aristotle [Politics, 1335b23-26]
On Monday, Politico published a draft written by Samuel Alito of the Supreme Court decision on the case Dobbs v. Jackson Women’s Health Organization. This is the first time in modern history a Supreme Court draft opinion has leaked and is while it is certainly a sign of our system’s decay and the weaponization of everything, that will not be my focus. Nor will my focus be the predictable liberal meltdown [those people really like killing babies.] I will also not be discussing the ridiculous wave of misinformation which we’ve grown so used to. Instead, what needs to be discussed is the fact that abortion always should have been regulated by the legislature instead of through judicial fiat, and what impact this terrible ruling has had on our political discourse.
The basic premise of Roe v. Wade is that a woman’s “right to privacy” prevents the government from regulating abortion. This is one of the most egregious examples of “legislating from the bench” in the modern era and led to a whole string of other rulings where the Supreme Court transformed the nation with no vote of the people. Any honest person knows that the ruling is nonsense, with even liberal god Ruth Bader Ginsberg having said she wished a different case legalized abortion. The nature of the ruling put Democrats in a bad place since it was hard to shore it up with legislation being as it ruled the issue outside of the scope of the legislature. Liberals seemed to believe they would always control the court though, so they screeched about it for fundraising but didn’t actually try to fix the situation. After the brutal Kavanaugh hearings, with the court majority that Trump created, all of these rulings are threatened, and aspects of our government may return to what Democrats fear most: democracy. If this draft ruling goes through, the Supreme Court will have returned abortion to the realm of things which are decided by the process of electing legislators to represent us and make laws- you know, the way everything is meant to work.
There is no credible non-anarchist argument that the government lacks the authority regulate abortion. The most basic function of a government is to regulate when it is legal to kill a human, and then to enforce that regulation within a territorial boundary. This includes determining who constitutes a human, and at what age of development human rights are attained. Everything the government does springs from this general premise; the government’s regulation of the killing of humans is why you don’t live in a Hobbesian state of war. It is absurd when libertarians- or liberals criticizing pro-life libertarians- try to call any regulation of abortion “big government”, being as protecting the weakest members of society from violence is the most important function of a minarchist “night watchman” state. It can be argued that the government should allow unlimited abortion, but legislatures absolutely have the authority to make that decision. If the government cannot regulate abortion, the justification for the government doing things such as differentiating from murder and self-defense also does not exist, nor does the government’s right to decide the “age of majority” or any number of other things. Quite simply, a government that cannot regulate abortion is no government at all- but the thing is, Roe v. Wade does represent the government enforcing an abortion policy because it was prohibiting the federal government’s constituent parts from setting or enforcing abortion policies.
On top of regulating killing, some degree of involvement in family planning as well as regulation of sexual morality are also traditional functions of a state. Indeed, marriage is one of the most impactful things on a citizen’s relationship with the state and its specific function is the regulation of families and sexual morality. Americans tend to take an irrational and inaccurate “all-or-nothing” view towards these issues, but producing a healthy and stable future population has always been a key concern of states. When Hobbe’s discusses the development of sovereignty for a state he writes, “The attaining to this sovereign power, is by two ways. One, by natural force; as when a man maketh his children, to submit themselves, and their children to his government, as being able to destroy them if they refuse” [Leviathan, 2.XVII.15]. If the government has any power over the citizenry, it is nonsense that they don’t have basic legal and regulatory power over the children which are currently “in production”, as those are the future citizens the state will rely on and the state has a [theoretical] contractual obligation to protect them from violence. In fact, in Hobbes’ view it is this- creating the conditions where a child can be peacefully born and raised- which causes a child to be born with obligations to the state. As with anything else in “free government” [in quotes because our government is far from free], the issue is, as Burke said, to find a balance between “liberty and restraint.” Very few people today understand what Machiavelli and Burke understood so well: the government works best for everyone when it uses a light touch, because liberty works better than tyranny, but the individuals need to be subject to a degree of government-enforced restraint for society to function.
The public needs to accept that abortion policy requires such a balance between liberty and restraint, and much of the public does see this, if in different terms. The problem is that abortion has been removed from the democratic process and used as a cynical wedge issue by both parties for the last 50 years, leading to increasingly maximalist and irrational positions. On one side, you have people who have gone so crazy they think you should be able to murder a baby at 42 weeks of pregnancy if it hasn’t been born yet, when the child is undeniably a person and is wholly viable outside of the womb [of course, contra-Rousseau, man is not born free and is indeed born entirely dependent], and another side that thinks a rape victim doesn’t deserve 7 weeks to learn that she is pregnant and then make a decision about how to proceed- and a 7 week embryo could be miscarried in a heavy period without the woman knowing she is pregnant. Ridiculous positions like this are, among other things, terrible public policy, but they also just are what happens when unelected judges use judicial fiat to circumvent representative government and enact extremist positions. The citizenry- all groups of the citizenry- needs to come to a compromise; it is absolutely toxic to a Republic to say some citizens [men in this instance] must be removed from setting public policy about certain issues: it is also nonsense, as men’s and women’s views on abortion track more closely than several issues that have no obvious gender component.
For all of the cynical mudslinging and increasingly radicalized partisans, there is actually broad public consensus on this issue, as shown by this Gallup Poll:
When the government is allowed to function broadly as designed, this is entirely enough support to find a reasonable compromise and limit abortions through the normal democratic process. Some people will refuse to compromise, but plenty of other people who believe life begins at conception also recognize the limits of government policy and will tolerate early abortions in return for the end of the utterly barbaric practice of late-term abortion-on-demand. Similarly, at least in a culture where this was done by legislation, some of the most stringently pro-abortion people should recognize a compromise to protect the most common abortions [that said, they don’t seem to believe in utilitarianism despite constantly telling us to sacrifice for the “common good.”]
Abortion is a complex moral and legal problem. There is no obvious point at which a child growing in a womb develops human rights from a secular perspective. I used to believe that life began at conception, but since I’m not a Christian anymore, I have no reason to care about early pregnancy before the child has life and sensation. Aristotle is completely correct that this is what distinguishes the “pious from the impious”, though he was in fact promoting abortion as an alternative to the infanticide by exposure of already born children. In many ways, on this issue, the abortionists have suffered irreparable harm due to circumstances beyond their control. In the ‘70s, when Roe was new, the “scientific consensus” of the day was that even newborn babies could not feel pain [anyone who has had an infant can see this is abject nonsense.] Obviously, if a newborn baby cannot feel pain the inability of a fetus to feel pain or emotion is beyond question; even at the beginning of Friends, in the ‘90s, Ross, the scientist, thinks its a crazy hippie thing to believe a child in the womb can hear late in pregnancy. Quite simply, they sold lies about the life and sensation of developing babies, and only gradually has science returned to the position of any empathetic person who has held an infant.
The science changing isn’t what has impacted the public so greatly. What has impacted the public is the advent of high-quality ultrasounds and internet photo-sharing. I personally have a picture of my daughter at 20 weeks on my fridge, and it is obvious that she is not just a baby but is my baby. When it was out of sight out of mind this argument that they are not people at any point before birth may have worked. Now all see pictures of ultrasounds all the time and know that the unborn become recognizable humans prior to birth. It is only absorption in a cruel dogma that would cause anyone to deny this.
The only solution here is a compromise whereby we accept that abortion is allowed up to a certain point and then prohibited. That age will be somewhat inherently arbitrary, but that is the nature of government age-related regulations. As much as the anti-democratic Democrats want you to believe we will be some combination of the Taliban and The Handmaid’s Tale if we have any abortion regulations, the fact is, it is the United States that is extreme, in favor of late abortions, on this issue. The only countries which allow such late term abortions on-demand are in the Anglosphere (US, UK, Canada, and Australia) and China and North Korea; some mania has gripped the English speaking world whereas China and North Korea don’t have human rights anyway. As far as I know none of them besides the United States claim that the legislature lacks the right to regulate this. I mentioned in a recent article I saw an adult woman on television go through the process of getting an abortion in Germany and it was like the post-Roe nightmare the liberals go on about. 47 out of 50 European nations limit elective abortion to 15 weeks or earlier, the limit of the Mississippi law currently in question. [I should note, I wouldn’t usually care how they do things in Europe, but the radical abortionists are the same people who constantly claim they want this country to be more like Europe while knowing nothing about Europe, as I said in my above-linked article about foreign television.] France recently liberalized it’s abortion laws- remaining more restrictive than Mississippi- and it became an issue in the recent French presidential election. Here were the candidates’ positions:
France is the most radically secular country in the West and they are fighting over 12 or 14 week limits on elective abortion. Are they on their way to a theocracy? If anything, Le Pen’s radical secularism goes too far for even most secular Americans to handle. She’s hardly some sort of advocate of forced breeding. The extreme abortionists are just looney and have no grasp on reality and genuinely believe we’re teetering on the edge of theocracy.
Thus far this has covered “elective” abortion, so what about the cases of “rape, incest, deformity, or to save the life of the mother”? As far as rape and incest, for the most part a normal week limit applies just the same, outside of the tragic circumstances of abused minors for which there is no great solution, though the most practical solution would be for them to get the assistance of some sort of government social worker, both regarding the pregnancy and generally. Regarding deformity, this is a verifiable matter that can easily be discovered at the standard 20 week ultrasound which exists for this exact reason [and any sort of anonymized medical review process can verify doctors are telling the truth about deformities.] Though our liberty, many people’s faith, and medical technology means we have the right to try and raise a deformed child with severe congenital defects, the necessity of destroying severely deformed children has always been recognized, with Aristotle writing, “There should be a law against raising deformed ones” [Politics, 1335b20]. It is contrary to reason, compassion, and tradition to force parents to raise a severely deformed child, and the only justification is a religious one, which is fine or perhaps even noble as a personal choice but not as public policy. As far as abortion being necessary to save the life of the mother, it needs to be noted that Ron Paul claims he’s never seen this circumstance in his long career- though he provided overall maternal care and was not an emergency room doctor. Assuming the situation does arise, this would count as a form of self-defense, which is a kind of killing which is broadly allowed by government. In setting out which kinds of killings are justifiable Plato writes, “If a man kills someone…while rescuing his mother or children or brothers, or the mother of his children, he shall be completely innocent” [The Laws, 874]. Ignoring the sexist language of that era where only men were citizens, there is a clear understanding that in a situation where the child growing in a mother will kill her the child can be killed by the mother in self-defense or by another party acting in the mother’s interests. These important exceptions which fall outside of abortion-on-demand serve a vital function, and most of the new restrictive abortion laws recognize them though the radicalization of abortion policy in absence of public involvement has created more legislators who don’t believe in these important exceptions that allow for later abortion.
If our country is not ripped apart in the process [or for the many other reasons its failing], the repeal of Roe v. Wade will do much to improve this country and de-radicalize political discourse. It was always a drastic mistake to create a new “Constitutional right” whole-cloth, especially on such a personal and emotional issue and especially drawing such a radical conclusion. Perhaps a right to privacy covers ordering pills for an early abortion and taking them at home, but by the time you are seeing a licensed and heavily-regulated doctor it is absurd that this one are cannot be legislated; the pro-abortion people say “Abortion is Healthcare” which is a weird argument when all healthcare is drowning in laws and regulations that they generally support [this is not even to begin on their love for vaccine mandates and a person’s apparent social responsibility to avoid pleasure lest you create a situation where you harm another person.] Unfortunately, after 50 years of judicial fiat, it will be a very rocky path to find anything resembling sane policies. However, you have the choice to be sane, and recognize that the correct and viable policy, which has enough public support to function, is to allow elective abortion up to around the end of the first trimester and then afterwards only allow abortion if there are a narrow range of unfortunate circumstances. The middle between “Heartbeat” laws and allowing abortion at term is enormous, both in terms of potential policy and public support. Assuming Roe is overturned, whatever else happens, just be glad that this basic function of government going back to the legislatures where it belongs will be a rare step towards sanity in this mad country.
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