Thomas Smith: On abortion, one size won’t fit all

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By THOMAS SMITH

The Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision did not outlaw abortion. The decision asserted that there does not exist a constitutional right to abortion and sent the issue back to the states to resolve with a limited role for the federal government (as was the case prior to 1973).

The Founding Fathers who met in Philadelphia to give life to a venerable Republic had great vision. Having chafed under monarchy, they shared a profound concern that a powerful central government could become increasingly intrusive, and knew that power tends to corrupt. As an antidote, the Constitution they created clearly states that any power not specifically allocated to the federal government remains with the states.

The problem, and it is not a new one, is that political partisans on each side tend to forget their civics when a political issue of great moment arises for which there is no consensus. On the issue of abortion, which is literally life and death,  the country is deeply divided. For many Americans, it is tantamount to murder. Even more Americans believe it is a matter of personal freedom.

Compromise between those two sides is not easy to find. It requires some to concede that it might not be murder, and others to concede that there can be limitations on personal freedom. There cannot be “half murder.” So, the two sides fight it out.

The outlines of a political compromise are not difficult to sketch out, although they seem morally unsatisfying. Does an abortion before 15 weeks not take a life? Does that mean one day before 15 weeks does not take a life? That one day after 15 weeks, it does take a life? Think about what took place in those first 15 weeks. Sperm and an egg come together and create an organism that grows into a human life form in 3 1/2 months. Does not abortion during those 15 weeks, like abortion after 15 weeks, end a potential life?

The polls show that most Americans are abortion moderates, not binary “pro-life” or “pro-choice” absolutists. In one scientific survey after another, it is clear that relatively few people believe abortion should always or never be legal. Nevertheless, and understandably, the abortion issue is viewed quite differently in different states. Abortion, in spite of those polls, is now banned or severely restricted at all stages of pregnancy in 15 states. Both sides should applaud the Supreme Court decision. It is clearly more “small-d” democratic than the rule of law that preceded Dobbs.

The abortion issue remains high-pitched. Emotional. Divisive. Counterproductive. It has enhanced disrespect for government. The Democratic Party sees the abortion issue as an opportunity to gain votes. The Democrats’ message is that Republican candidates want to diminish your freedoms, that the Supreme Court decision is flawed, that the abortion issue should remain with the federal government.

This is at a time when the rule of law is under a multifaceted attack. The rule of law is precious. It is vulnerable. It exists more because of compliance than enforcement. For compliance to be effective, to be as universal as possible requires respect for government. Unfortunately, respect for government today is, at least since it has been measured, at an all-time low.

Unfortunately, the heated debate over abortion has contributed to that alienation for half a century, and it’s only getting more partisan. Those who care about other issues other than reproductive rights can do something about it. Candidates for federal office, regardless of their political party, could state clearly what an overwhelming majority of Americans know to be true: that the moral dimensions of abortion are complex, and passionate people of good will are on both sides of the issue. Then they can state, as Nikki Haley has done, their own position on the issue, followed by a realistic assessment of the political realities. That means acknowledging that one law, in one jurisdiction, is not the answer.

Democrats, particularly those who claim to fear that our democracy is hanging by a thread, do their cause no favor by pretending that they have never heard of the doctrine of federalism. Democrats do damage to the country and their own cause when they demonize Republican political candidates with dishonest attack ads over this issue. Or when they claim they want to enshrine all the elements of Roe v. Wade into federal law while deceiving voters about the elements of that jagged jurisprudence they know are unpopular, such as parental consent.

For their part, Republicans campaigned for five decades to return this issue to the states. When legislative action and statewide referendums don’t go their way – and they haven’t been – it’s hypocritical to start pushing for a federal ban. And unpopular.

That this issue is now in the hands of the state could eventually help tone down the abortion issue. It should help all voters recognize the issue is complex, that one law does not fit all, that we are fortunate to have a constitutional government. That the issue properly rests with the states.

No matter what one believes with regard to abortion, one should also be concerned with preserving the rule of law, with preserving the greatest country in the history of humankind.

Thomas W. Smith is chairman of OpenTheBooks.com.

This article was originally published by RealClearPolitics and made available via RealClearWire.

28 COMMENTS

      • In every society to ever exist, men have always decided whether children would be equally protected. Those who love abortion, tell the man that he has a duty to look away. God says that if the man hides his face from it, God will visit him with the same punishment.

        Leviticus 20:2-5 (KJV) Again, thou shalt say to the children of Israel, Whosoever he be of the children of Israel, or of the strangers that sojourn in Israel, that giveth any of his seed unto Molech; he shall surely be put to death: the people of the land shall stone him with stones.
        And I will set my face against that man, and will cut him off from among his people; because he hath given of his seed unto Molech, to defile my sanctuary, and to profane my holy name.
        And if the people of the land do any ways hide their eyes from the man, when he giveth of his seed unto Molech, and kill him not:
        Then I will set my face against that man, and against his family, and will cut him off, and all that go a whoring after him, to commit whoredom with Molech, from among their people.

    • Looks like an Eric Rudolph fanboy can comment but I can’t get this site to even accept my comments much less go to any sort of moderation. Must be a glitch.
      right

  1. Let the states decide.
    Who is anybody to tell someone what to do with their person.
    It’s nobody’s business other than the woman involved.

    • So is it a mother’s right to kill her infant post-birth?
      What about one day before birth?
      Two days? Ten? Fifty?

      Who is anybody to tell someone what to do with their children?
      What to do with their pets and animals?
      What to do with their own (non-pregnant) body?

      Funny how your argument falls flat when it comes to Covidianism and the unsafe and experimental clot shot and the mandates for it, which virtually every radical pro-abortionist applauded and supported.

      • Annoying part is he’s got the germ of the right idea. It should be a Federalism issue.

        But, the part he glosses over is exactly the point you make. There must be some guidance on when where it ends.

        With the progressives love of eugenics, what’s to stop them from saying the kids are a pain as teenagers and demanding retroactive abortions?

        Things we thought beyond the pale as little as a decade ago are getting mainstreamed. Regardless if we want it.

        • “Things we thought beyond the pale as little as a decade ago are getting mainstreamed. Regardless if we want it.”

          This, I think, is the most important and critical part of your comment, TMA, and should be in bold, underlined, and in 64 size font.

    • The father has no say? He or she is their kid too.
      Lastly, who speaks for the baby? Doesn’t the baby have rights?

  2. With respect to abortion, I think early term abortions have all the ethical implications of picking a scab, by which I mean none. I think late term abortions, particularly partial birth abortions are tantamount to infanticide, which is bad. Finding a bright line between the two where none exists is hard enough for reasonable people and virtually impossible for extremists.

    Abortion is simply not a big issue for me. Never had one nor had to deal with it personally. Further, responsible adults rarely do. It’s an easy problem to avoid so I don’t think it deserves all the time and attention wasted on it by both sides.

    The most important issue to me is by what lawful process a republic resolves questions on which some otherwise reasonable people will never agree. We have a process to do just that. It’s an important part of being civilized. Paying attention to maintaining the integrity of that process is the single most important aspect of this question.

    Roe v Wade egregiously short circuited that process and was, as a consequence, an exceptionally bad legal decision. It was unsupported by law and the constitution, substituting judges’ personal opinions for a constitutionally supportable remedy.

    Returning the matter to the States was the reasonable and proper solution.

  3. As long as the Abortion Industrial Complex gets their share, and as long as ‘those people’ are the ones getting them, what’s the problem? Free abortions to all immigrants!

  4. As long as the Abortion Industrial Complex gets their cut, and as long as ‘those people’ are the ones getting them, what’s the problem? Free abortions to all immigrants!

  5. HB107 establishes legal definitions of “person” and “life” in AS 11.81.900.

    “Person” means a natural person or entity that has the moral right of self-determination.

    “Life” is defined as the property or quality that distinguishes a living organism from a dead
    organism or inanimate matter and that is manifested in the function of a metabolism, growth,
    reproduction, a response to stimuli, or adaption to the environment, each of which originates
    within the organism.

    The Alaska Constitution, in article I, section 1, says all persons have a natural right to life. Thus,
    every person’s right to life must be protected by the State. Article 1, section 3, further states that
    no person is to be denied the enjoyment of any civil or political right because of race, color,
    creed, sex, or national origin. This is true regardless of age, level of dependency, citizenship, or
    viability. And this protection must not be denied to any human — even the pre-born. Further, a
    viability test to determine whether a person’s life is worthy of protection would also be unlawful.

    In Gonzales v. Carhart, the Supreme Court wrote that the unborn child is a living individual,
    separate and distinct from the mother. In this 2007 decision, the Court did not consider the
    preborn child as merely a part of the mother’s body.

    In Bonbrest v. Kotz, Justice McGuire stated: “From the viewpoint of the civil law and the law of
    property, a child en ventre sa mere is not only regarded as human being, but as such from the
    moment of conception—which it is in fact.

    In Marbury vs. Madison, the court wrote: “The very essence of civil liberty certainly consists in
    the right of every individual to claim the protection of the laws, whenever he receives an
    injury… The government of the United States has been emphatically termed a government of
    laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish
    no remedy for the violation of a vested legal right.” That decision cemented the individuality of
    the pre-born child and guarantees him or her a civil right to claim protection under the law; this
    includes the right to privacy found in the Alaska Constitution.

    The medical community has long recognized the individual life of the unborn child. The science
    and experiments of Dr. Theodric Romeyn Beck, found in “Elements of Medical Jurisprudence,”
    written more than 100 years before Roe v. Wade, illustrate that the pre-born child is a separate
    human life from the moment of conception.

    Scientist Keith Moore wrote, “[The Zygote] results from the union of an oocyte and a sperm. A
    zygote is the beginning of a new human being. Human development begins at fertilization, the
    process during which a male gamete or sperm … unites with a female gamete or oocyte … to
    form a single cell called a zygote. This highly specialized, totipotent cell marks the beginning of
    each of us as a unique individual.”(Moore, K.L., Ph.d. & T.V.N., The Developing Human: Clinically Oriented
    Embryology, 1998).

    Dr. Horatio R. Storer wrote, “Allowing, then, as must be done, that the ovum does not originate
    in the uterus; that for a time, however slight, during its passage through the Fallopian tube, its
    connection with the mother is wholly broken; that its subsequent history after impregnation is
    one merely of development, its attachment merely for nutrition and shelter – it is not rational to
    suppose that its total independence, thus once established, becomes again merged into total
    identity, however temporary.” (Storer, M.D., LL.B., Horatio R., Criminal Abortion, 1868).
    Storer’s conclusion is irrefutable: The life of the unborn human begins independent of the
    mother’s body.

    Following the science then, it is illogical to conclude that the life of the pre-born human being
    (which was previously independent of the mother) ceases to exist during the time that he/she is in
    the womb. In other words, the egg, and the sperm, which are now subdividing are an independent
    life and do not terminate just because they have attached to the mother for nurturing and
    support. When a male sperm meets a female egg, both cease to exist independently, replaced by
    a living human in the earliest stage of development: conception. This life has separate DNA and
    is separate from the mother. Every major medical textbook on the subject teaches this.

    Strengthening the scientific argument is the practice of in-vitro fertilization, in which a living
    human being is inserted into the womb for the support of development of the child, rather than
    for the purpose of obtaining life. The independent life of the pre-born child is again proven by
    the fact the pre-born child initiates implantation into the womb. “The mother’s body is entirely
    passive in the implantation process. It merely responds to the actions taken by the unborn human
    being.” (Schauf, M.D., Adam, The Growth of the Placenta, American Gynecology, 1903).

    Life is defined as the condition that distinguishes animals and plants from inorganic matter. We
    know that “life” includes the capacity for growth, reproduction, functional activity, and continual
    change.

    It’s time we define “person” and “life” for the purpose of our Constitution. It’s time to follow
    science, open our eyes and ears and recognize the personhood of the pre-born. It’s time to fix our
    Constitution and statutes, and this bill does that.

  6. I am good with the Alaska Constitution which does allow one size fits all, the privacy between an Alaskan and their doctor

    • at best that is a wild mischarachterization of the Alaska constitution which says “The right of the people to privacy is recognized and shall not be infringed. The legislature shall implement this section. [Amended 1972]”

      the question boils down to the words “the people” – does “the people” include those in the womb? Do they have a right to privacy? A right to life liberty and the persuit of happiness?

      I think the arguments posted above, by KM, succincly prove that it does. That the subdividing cell is actually separate from the mother for a period of time and is a different DNA, hence NOT just a clump of mothers cells. So where does it end Frank. If some doctor decided you were a parasite, just a clump of cells and a waste of oxygen, should we be allowed to remove you?

      The opposite of PRO-LIFE is not PRO-CHOICE. It is PRO-DEATH.

  7. “……an overwhelming majority of Americans know to be true: that the moral dimensions of abortion are complex, and passionate people of good will are on both sides of the issue………”
    I do not know that to be true. I have experienced nobody on the pro-abortion side of the issue to be of good will.

  8. Leviticus 20:2-5 (KJV) Again, thou shalt say to the children of Israel, Whosoever he be of the children of Israel, or of the strangers that sojourn in Israel, that giveth any of his seed unto Molech; he shall surely be put to death: the people of the land shall stone him with stones.
    And I will set my face against that man, and will cut him off from among his people; because he hath given of his seed unto Molech, to defile my sanctuary, and to profane my holy name.
    And if the people of the land do any ways hide their eyes from the man, when he giveth of his seed unto Molech, and kill him not:
    Then I will set my face against that man, and against his family, and will cut him off, and all that go a whoring after him, to commit whoredom with Molech, from among their people.

    • Is there a point to this?

      BTW: when referring to God all pronouns are supposed to be capitalized.

      God wants you to hop off your high horse, pull the stick out of your butt, and go do good works for His (example how that’s done-see the BTW above) children. With an emphasis on the most needy.

      Go walk your big talk.

  9. I feel the need to point out the contradiction in the claims of those extreme pro-abortionists that a fetus is “just a lump of tissue” with the universal trauma experienced by pregnant women who have had a miscarriage, at ANY halfway-advanced stage of a pregnancy.

  10. As soon as the child can be harmed, men have a duty to equally protect the new human being. (Hint…Children can be harmed from conception)

    Psalms 106:37-38 (KJV) Yea, they sacrificed their sons and their daughters unto devils,
    And shed innocent blood, even the blood of their sons and of their daughters, whom they sacrificed unto the idols of Canaan: and the land was polluted with blood.

    • So what does that say about your god then? He allegedly sacrificed his own adult child without there being any need to do so. There has never been a problem know to our species which required a human sacrifice.

  11. There are a couple possible approaches here only tangentially related.

    Dave Chappelle defined the first approach with his, If you can kill it, I can abandon it framing. This elevates Fathers’ rights into the game. If Mom’s right are uber alles, and can summarily choose to abort, then Dad can have a similar right not to support the kid. Awful, but you lefties chose the game. IN today’s world, Mom can do whatever she wants to do whenever she wants to do it, and the Family Courts put Dad on the hook for the next 18 years.

    OTOH, if the goal is to maximize life, then Our Side needs to make adoption easy and bulletproof. We also have to be willing pay Mom not to abort. I don’t care is she is a Believer, though I would like that outcome. All I really want is for the kid to live. Given that 95%+ of all abortions are for convenience or on simple contraception grounds, a cash award to carry to term ought to work with appropriate controls for the women who get into the get preggers for $$$ business. This means that contraception (not including RU 485 / Morning After pills which are abortion drugs) needs to be as available and as expensive as popcorn. Cheers –

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