Let no one presume that I am here articulating a particular concrete personal position on the procedure called abortion. That is not my intention, nor is it relevant. Rather, my position is uncompromisingly pro-individual rights. My intention is to concretize the logical implications for the practice of abortion from the perspective of unalienable individual rights. From that perspective, I support a woman's right to terminate (or abort) her pregnancy. But, supporting the right to abortion no more means approval of abortion than supporting a communist’s or a Nazi’s right to advocate his ideas implies support for communism or Nazism. The principle to keep in mind is, therefor, that which underpins
a statement attributed to Voltaire: “I disapprove of what you say, but I will defend to the death your right to say it.” Though I may personally disapprove of abortion in many instances, that is beside the point, because anyone’s moral evaluation of abortion is irrelevant to the issue of abortion’s legality.
In a recent column, “Don’t Blame Cain for Republicans’ Confusion on Abortion,” NJ Star-Ledger columnist Paul Mulshine – a conservative - tackled the issue of abortion. Citing a “widely perceived … gaffe on Cain’s part,” Mulshine writes:
After CNN’s Piers Morgan asked for his position [on abortion], Cain recited the standard answer about how he would push for a federal law or constitutional amendment banning all abortions.
Under further prodding, though, Cain began to employ the antigovernment rhetoric that has become popular in the tea party era.
“The government shouldn’t be trying to tell people everything to do, especially when it comes to social decisions they need to make,” he said.
Mulshine didn’t see Cain’s comments so much as a gaffe as indicative of a much wider problem; the Republicans’ contradictory stance on the issue:
But in his own way he was clearly trying to apply to the abortion issue the same logic Republicans apply to issues such as gun control, education and economics. There, they pledge to get the federal government out of the way. On abortion, however, they’re expected to endorse a plan to give the feds unprecedented powers.
This is a liberal position, not a conservative one. Any federal law banning abortion would be rooted in the same section of the Constitution now being challenged by conservatives in the suits against Obamacare: the Interstate Commerce Clause. Conservatives argue the original meaning of that clause permits Congress only to facilitate interstate commerce, not restrict it. If that’s true of Obamacare, then it’s true of abortion.
Mulshine goes on to explain how, traditionally, the “pro-life” stance had been a bipartisan issue embraced by both major parties “back [when] both parties were committed to big government.” Up until the 1970s a federal ban on abortion was very much a liberal democratic position, citing “Tom Eagleton, the Missouri senator who almost made it onto the 1972 Democratic presidential ticket as George McGovern’s running mate.” Mulshine continues:
But just how the movement fits into a party otherwise dedicated to limited government and individual liberty can be tough to discern, as Cain proved. What he seemed to be trying to get at was something Ronald Reagan said when he was governor of California: “Government should do only those things people cannot do for themselves.”
Well, people are perfectly capable of preventing themselves from getting abortions. It’s hard to see where the federal government can be of any assistance.
So far so good. Mulshine gets the contradiction, but his solution doesn’t resolve it:
Where the movement went off track is with the decision to try to combat an abuse of power by one branch of the federal government by granting more power to the other branches. That might be a nice idea, but it’s not a conservative idea. And those who endorse it are not particularly conservative.
Mulshine seems to be saying that the Supreme Court’s Roe vs. Wade decision was “an abuse of power,” but that a federal law or amendment overturning that decision and outlawing abortion nationally would still be “an abuse of power.” In other words, any legal involvement by the federal government in the abortion issue is itself the “abuse of power.” Instead, Mulshine contends that:
There is a conservative approach to the issue, though, and at the moment it seems to be quietly gaining ground. Newt Gingrich and Ron Paul have proposed getting the federal government out of the abortion business once and for all. This would involve passing a law restricting the authority of the appellate courts to review state abortion laws.
What’s becoming clear here is that Mulshine is not staking out an unequivocal position in support of “individual liberty.” In fact, his position on abortion legality is not made clear here. What is clear is that he contradicts his seeming antipathy to “big government,” in the area of abortion. Whereas he opposes a federal ban on abortion, he apparently has no qualms about state bans. Regarding abortion, like many conservatives, he merely splits big government into 50 pieces, and apportions "the abuse of power" among the states. Furthermore, he doesn’t recognize the authority of the Supreme Court to affirm the right to abortion. But, I would ask, what if a state passed a law abolishing freedom of speech? If the federal courts stepped in to declare that state law unconstitutional, would he consider that decision “an abuse of power?” Probably not, because he along with Gingrich and Paul would quite likely claim that there is a specifically enumerated right to free speech in the US constitution which all states must abide by, but there is no “freedom of abortion” clause. I’m taking some liberty here in ascribing to Mulshine a position that he seems to be advocating, but in fact may not hold. But conservatives have long disdained the Supreme Court’s “discovering” of rights that allegedly do not exist in the constitution.
But the issue of enumerated rights (specifically, the Bill of Rights) is one that disturbed some of the Founding Fathers because of the danger that any right not enumerated could be construed as not existing by virtue of the implication that government has the power to usurp it. As Alexander Hamilton wrote in Federalist 84:
I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.
Emphasis added. Those concerns were probably what led to inclusion of the Ninth Amendment, which states:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Clearly, the Supreme Court is empowered by the Ninth Amendment to affirm unemunerated rights, including the right to abortion. Where in the constitution is it given to government the power to forbid it? No such authority exists. If abortion is a legitimate right, then Roe vs. Wade is not “an abuse of power,” as Mulshine claims. It is the recognition of a right "retained by the people" that government has no power "to deny or disparage." The court "construed" correctly. If abortion is a legitimate right guaranteed by the constitution, even if implicitly, then, as in the case of speech or any in the Bill of Rights, no state may pass any law abridging that right. A proper understanding of individual rights will settle the abortion issue. Passing the ball to the states may be “a conservative approach to the issue,” as Mulshine says, but it does not resolve the issue. It is, in fact, an evasion of it. The balance of power doctrine does not empower any government at any level to violate individual rights.
The question then is: On what basis can it be claimed that abortion is one of the “other [rights] retained by the people?” The answer can be found by examining the philosophical basis of rights.