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Abortion Analogies

by Professor Will Huhn on November 9, 2009

in Constitutional Law,Establishment Clause,Wilson Huhn

     The enactment of the Stupak Amendment as part of the health care bill reawakens the debate over abortion.  Both sides invoke arguments by analogy in support of their positions on abortion and abortion funding.  I find a third analogy to be more fitting – one that supports the Supreme Court's position that while abortion is fundamental right, abortion funding is not.

     In arguing against restrictions on abortion funding like the Hyde Amendment or the Stupak Amendment people who are pro-choice are prone to draw an analogy between abortion and war.  They contend that because every citizen may be compelled to contribute his or her tax dollars towards the prosecution of wars that they may be opposed to – wars that they consider to be unjust or immoral – accordingly, those who are opposed to abortion should be compelled to pay for the abortion procedure through their tax dollars.

     This analogy fails for two significant reasons.  First of all, when a war is prosecuted presumably the majority of the people or a at least a majority of their representatives have agreed to fund the war.  (That is, by the way, an argument against allowing a President to commence wars or commit acts of war without Congressional approval.)  Citizens must pay their taxes for the prosecution of a war because we must be obedient to the law.  This is not analogous to a situation where Congress or a state legislature decides not to fund abortions.  In that case it is the pro-life position, not the pro-choice position, that is consistent with the will of the people.  Citizens must pay their taxes in support of wars they oppose out of respect for the Rule of Law.  That element is missing when the majority decides not to fund abortions.

     The second reason that the war funding / abortion funding analogy fails is because unlike the decision to go to war each decision to terminate a pregnancy is ultimately a matter of personal choice.  In contrast, the decision to go to war is a collective decision (again, not one that is committed to the sole discretion of the President).  There is a moral imperative to support one's country in a time of war, a moral imperative that can be legally enforced.  Not only may we be required to pay wartime taxes, we are even subject to being drafted for military service, and if we are unfit or unwilling to serve in the military we can be required to perform alternative service or to sit in jail. 

     On the pro-life side of the debate, advocates liken themselves to abolitionists.  They compare abortion to slavery – in their opinion the non-personhood of a fetus under the Fourteenth Amendment in Roe v. Wade is the same as the non-citizenship of a slave under Dred Scott v. Sandford.  A woman who procures an abortion is, in their eyes, no different from someone who holds another person in bondage.

     This analogy fails as well in two basic respects.  First, the analogy is inaccurate because of the undeniable process of fetal development.  I have the greatest respect for people who believe that a one-celled preembryo is a "person" within the meaning of the Constitution.  I only wish that they had more respect for those who respectfully disagree.  While there is undeniably "human life" from the moment of conception, as there is, indeed, in a sperm and an egg – life is unbroken – it is also true that life appears in different forms and that it gradually evolves into a person.  In contrast, a slave is undeniably a person, and the institution of slavery was at all times an invasion of those people's fundamental rights.

     The second reason that the analogy between abortion and slavery fails is because slavery did not take place inside a woman's body, like pregnancy does.  This is why pro-choice advocates also draw the analogy to slavery, arguing that restrictive abortion laws reduce women to a state of servitude.  A woman who does not wish to continue her pregnancy is simply not analogous to a slaveholder seeking to exploit people as property.

     I would draw another analogy that explains why laws that restrict abortion funding are constitutional but laws that restrict abortion are unconstitutional.  The government's position on abortion is closely analogous to the government taking a postion on matters of religion.  The government is powerless to dictate religious doctrine to any individual – in fact, the government may not even express a point of view on the subject.  The government does not have and may not have religious beliefs.  It is not only unwise, it is unconstitutional for the government to host religious expression, for example by erecting a cross in a public park, posting the Ten Commandments in public school, or placing a nativity scene on the steps of a courthouse.  Just as pro-choice advocates perceive restrictive abortion laws as invading their freedom of religion, pro-life advocates perceive laws funding abortion as invading their religious beliefs – as funding an activity that is undertaken not as the result of a collective decision like the decision to declare or approve war, but as funding a decision that is personal and fundamental to every individual woman.  It is for that same reason that the government may not unduly burden a woman's right to terminate a pregnancy in its early stages.

{ 3 comments }

Quidpro November 10, 2009 at 9:33 am

Professor,

In the last paragraph of your post you make some rather breathtaking statements. For example: "The government's position on abortion is closely analogous to the government taking a postion on matters of religion." With all due respect, Professor, this position is absurd.

The government has taken a position on abortion. With the thinest of textual support, the Supreme Court has found that women have a constitutional right to abort their babies. Under your logic, this violates the First Amendment because it promotes the views and beliefs of religions that practice child sacrifice. To be consistent, Professor, you should protest this governmental enactment of the precepts of Moloch as unconstitutional.

Professor Will Huhn November 10, 2009 at 11:23 am

Dear Q,
You equate abortion and child sacrifice. This analogy is subject to the same two objections as the analogy between abortion and slavery: an embryo and a fetus gradually develop into a child, and this process takes place inside a woman's body. If we ignore those two factors or consider them to be inconsequential, then I would have to concede that your analogy is sound.

Kristina November 20, 2009 at 10:48 pm

"I find a third analogy to be more fitting – one that supports the Supreme Court's position that while abortion is fundamental right, abortion funding is not."

I would argue it is a distinction without a difference. Women of means, even before Roe v. Wade, could obtain abortions. The whole fight to get access to safe, legal abortions was based on the problem of poor women perforating their internal organs attempting to perform their own abortions.

Frankly, we are arguably already back to the pre-Roe v. Wade position by default. It costs an extraordinary amount of money to pay out of pocket for an abortion now, and the people most likely to be uninsured are poor women. Abortion clinics are far and few between, requiring some women to travel hours, or even to take a week off of work (with the counseling, and the mandatory waiting periods, and all the other bs).

The Stupak amendment isn't limited to abortion, either, but can be read to apply to all forms of birth control.

The Senate compromise is absolutely garbage. I am beginning to think that President Obama found the most effective way to completely neutralize women's rights – he promoted the only person brave enough, with enough spine, to advocate for our rights.

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