A Row over Roe?

South Dakota has passed a law directly challenging Roe v. Wade. (See Captain's Quarters for a start.)

Roe is a funny beast legally. It merges two distinct issues (legal and moral) into one case with passionate feeling on BOTH issues from the right and left. The legal question is whether the "right to privacy" - an unarticulated "right" in the Constitution - is sufficiently enumerated to overcome federalism. That is, is regulation of abortion the right of the federal government or the states? Overturning Roe will not make abortion illegal, it will simply pass the question on to the states.

The moral question is "when does life begin?" "Life" here means when do we become human (or human enough) thus making abortion murder. To this I would add an often overlooked, but to me no less important, question: under what conditions may a government entity to assume control of a woman's body? I think this is important because if you believe that life begins at conception (as oppose to, say, viability or a beating heart) and ban abortion, you force a woman who might not want a child (putting aside for a second the reasons why) to surrender herself for nine months to incubate the child. I have worked hard to try and find an analogy, but I can't.

The legal question, for me, is easy. The "right to privacy" is not a right enumerated in the Constitution and thus cannot serve as a basis for ignoring the Tenth Amendment. ("The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.") This is a state question.

Of course, there has been a whole host of rulings using the "right to privacy" to justify themselves. (Overturning state anti-sodomy laws, for example.) So overturning the basis of Roe v. Wade will have a far greater impact then just on abortion laws. But the negative impact is no reason to retain a fundamentally flawed ruling.

The moral question are trickier. Yours truly believes that a women must retain some "right" to control her body post-conception, but at some point - viability; a beating heart - a women becomes a custodian for a brand new citizen of the United States, with all the rights, privileges and protections that come with that status. The trap that this "logic" springs is where do you draw the line? "Viability" is certainly a squishy concept, but it is generally "viable" at 28 weeks. But at 25 weeks there is a 60% chance that the baby will survive and babies have survived earlier births than 25 weeks.

Using the "beating heart" standard puts you at 9 - 12 weeks or at the end of the first trimester.

Readers know my opinions of the "right to die": I believe in assisted suicide with medical verification of terminal illness from two or more doctors; I believe in the ability of loved ones to withdraw life support, if that is the will of the patient and I believe in some limited ability of a woman to abort her pregnancy, BUT I am open to debate the details. What I abhor is federal government interference with these decisions. While I do understand that government must weigh in on these matters, it should be the government most responsive and accountable to its people - in our system that is the state.

Allowing the states to come up with "solutions" will only further the debate and allow the "right" answer to emerge over time.

So, go South Dakota, it is time to abort Roe.