A Matter of "Choice"

Last weekend marked the 38th anniversary of the United States Supreme Court's decision in Roe v. Wade, which struck down most state-law restrictions on abortion, and recognized that a right to "privacy" distilled from the Due Process Clause of the federal Constitution's Fourteenth Amendment includes a woman's decision to abort her pregnancy. This past Monday, hundreds of thousands of people from across the nation and the world gathered in the streets of Washington, DC for the 2011 March for Life, demonstrating their commitment to life over legalized killing, and praying for a dramatic change in the law to protect the lives of unborn children. Encouragingly, observers noted an especially high rate of participation by young people.

President Obama marked the milestone with this statement:

Today marks the 38th anniversary of Roe v. Wade, the Supreme Court decision that protects women's health and reproductive freedom, and affirms a fundamental principle: that government should not intrude on private family matters.

The President's statement reflects the myth that Roe vs. Wade and its progeny somehow affirm the principles of free choice and limited government, things libertarians and conservatives claim to support. In reality, Roe v. Wade represented a profound intrusion of federal government power into matters traditionally within the states' jurisdiction. Worse, by "choosing" personal privacy and convenience above the sanctity of life as fundamental national values, Roe contributed mightily to the development of a culture of selfishness, perversion and death that undermines society itself and the physical and moral health of everyone in it--not least the most helpless and vulnerable class of all, unborn children.

One questionable aspect of the President's statement is the suggestion that "government" has no business getting involved in "private family matters." To many today this idea seems almost self-evident, but in fact it doesn't comport with legal practice in this country now or for most of its history. In fact, America is rife with laws regulating "private family matters" in general and and sexual behavior in particular: laws against bigamy, incest, rape, and sex with children, the helpless, and animals; laws against pornography and sexual exploitation; laws governing marriage, separation, divorce, property division, spousal support, and the custody and support of children; laws against domestic violence and the abuse or neglect of partners, children, and the aged; laws governing medical care and education of children; laws providing for adoption, emancipation, and personal health-care decisionmaking; laws regulating wills and the distribution of property upon death--and so on. Almost all such laws are enacted and administered at the state level, and the regulation of "family matters" has long been regarded as a responsibility primarily of the states. Until the Roe v. Wade decision in 1973, state statutes restricting or prohibiting abortion were part of this considerable body of law designed to promote, strengthen, and assist families and to protect children, mothers, the elderly, and other especially vulnerable persons in the domestic sphere. Singly and taken together, these laws "infringe" significantly on personal and family privacy. But they were enacted democratically by the people's elected representatives, and so reflect a deliberate decision by the people to surrender a modicum of privacy and personal freedom for the sake of ensuring our future by protecting children and promoting family life.

Roe v. Wade, however, effectively denied the right of the people to provide for their own children, their families, and their future in this way. Formerly, the citizens of one state could decide democratically, in their own legislatures, that the unborn should be protected from the moment of conception and severely restrict or even prohibit abortion at an early stage of pregnancy, while the people of another state, applying different values, could choose to regulate abortion much more liberally. In Roe v. Wade the United States Supreme Court took away this "choice" and said that the Federal Constitution, as the Supreme Court interpreted it, would decide the limits of what legal protections could and could not be afforded to the unborn. In effect, Roe moved the authority to decide this issue from the the people of the several states, acting democratically through their legislatures, and gave it to the federal courts, acting through Presidentially-appointed judges who serve for life and have the last word on the Constitution's meaning and reach. This assumption of power might be defensible were a right to abortion mentioned in the Constitution, or were such a right a clear and necessary extension of some specific freedom expressly guaranteed in that document. Instead, the right to terminate a pregnancy recognized in Roe was based on a vague right to "privacy" that itself is not mentioned in the Constitution, but was extrapolated from the malleable Due Process clause of the Fourteenth Amendment and developed within parameters laid down by other Supreme Court justices in earlier Supreme Court cases. Roe thus made clear that the autocratic Judicial Branch of the Federal Government, rather than the democratic assemblies of the people, will decide whether, and just how, state laws may intrude into "private family matters."

Even more damaging than this loss of choice for the people is Roe's exaltation of the the individual's freedom and convenience over the rights and interests of everyone else affected by the decision to terminate pregnancy--the father, families generally, civilized society, and of course, the unborn child itself. Making the pregnant mother's "choice" paramount above all, even above the life of her own helpless child, would be morally and legally untenable except on the principle that that entity in the mother's womb not a human being at all--at least until what the Supreme Court decides is "viability"--but is just so much medical waste. By elevating personal freedom and self-interest over life and all the duties--and blessings--that go along with it, the Supreme Court energized the growing culture of selfishness, irresponsibility, materialism, promiscuity, and perversion that is now corroding the very foundations of society. Roe gave a green light to the development of a whole industry, funded with billions of (many of them taxpayer) dollars, devoted to the destruction and removal of fetal life. What this has done to the national conscience and soul, not to mention the millions of lives lost to legalized abortion since 1973, is incalculable. It is this culture, and this industry, that leads to things like the "house of horrors" maintained by Philadelphia abortionist Kermit Gosnell. This is the "freedom of choice" that has forced some health-care professionals to participate in abortions against their will. These are the consequences of the Supreme Court's choice of self over life that have resulted in forty-one percent of all pregnancies in New York City ending in abortion (48 percent in the Bronx alone).

So, while President Obama "chose" to celebrate Roe v. Wade last week, I and millions of others "chose" to mourn--the loss of millions of innocent lives, the loss of a people's honor and soul, the loss of freedom to resist the death culture and of our democratic power in the states to protect unborn life. But we can still choose: to speak out loudly and unashamedly public and private in favor of fetal life, to work and vote for political candidates who do likewise, to lovingly counsel and support expectant mothers in choosing life for their unborn children. Most importantly, promote a culture of marriage and of life in your own home and teach it to your children. We can choose to fight selfishness with love, despair with faith, death with life, every day--for another 38 years or longer, if need be.