Abortion: An Absolute Right

By the Officers of the Association for Objective Law

As long as the right to abortion may be overridden by any “state interests,” a woman has no right to do with her body as she sees fit.

The Supreme Court of the United States has issued its opinion in Webster v. Reproductive Health Services. This is the case in which the Court was asked–by the Solicitor General of the United States, among others–to overrule Roe v. Wade, the 1973 Supreme Court decision declaring that a woman has a constitutionally protected right to choose to abort a fetus and end her pregnancy. In order to achieve a consensus, the Court was compelled to stop short of overruling Roe v. Wade. However, it is clear from the majority and concurring opinions that, should the right case be brought before the Court, Roe v. Wade may well be overruled. Roe v. Wade right? Wrong?

Roe v. Wade is right in its result, but dangerously wrong in its reasoning. Roe v. Wade is correct in its conclusion that a fetus has no rights and that a woman has the right to determine whether or not to abort her pregnancy. But Roe v. Wade is wrong insofar as it holds that “state interests” justify interference with the woman’s right and that, when the state so desires, it may commandeer her body either for her supposed benefit or the benefit of a fetus.

In some 37 pages of discussion on the substantive issues in Roe v. Wade, the Court spent barely three pages in discussion of the fundamental issue: the nature of the right to abortion. Much more attention was given to how and when this right may and should be limited to further the “state’s interest” in the health of the woman and in potential human life. On the basis of such “interests,” the Court decided that the state may regulate abortion throughout pregnancy to protect the woman’s health and generally prohibit abortion when the fetus becomes “viable.” In so deciding, the Court conformed to a theory which has prevailed in United States law for most of the twentieth century: rights are not absolute and must be “balanced” against (i.e., invaded by) the “interests” of the state. In Roe v. Wade, the Court concluded that at the point of fetal viability, the “state’s interests” in potential life outweigh the woman’s right to control her own body.

None of the Justices in their opinions in Webster, whether for or against abortion, expressed any opposition to “balancing.” Indeed, Justice Blackmun stated in his dissenting opinion that Roe v. Wade “fairly, sensibly and effectively functions to safeguard the constitutional liberties of pregnant women while recognizing and accommodating the State’s interest in potential human life.” So long as it is assumed that rights may be overridden by “state interests,” the only question is not whether, but how much will the right at issue be curtailed?

Abortion is a right, and all rights are absolute and cannot be “balanced” away. Ayn Rand has explained: “A right is a moral principle defining and sanctioning a man’s freedom of action in a social context.” The moral standard to be applied, Ayn Rand has shown, is that of man’s life and what is “required by man’s nature for his proper survival.” The fundamental condition for man’s survival–the freedom to use his rational faculty to maintain and enjoy his life. Thus, a pregnant woman, like every other individual, has the right to determine her own destiny and the destiny of her body, to choose what constitutes her own best interest and private happiness and to work for its achievement, so long as she respects the same rights in others.

These rights, and all rights, are absolute by their nature. It cannot be proper to negotiate moral principles. It cannot be proper to allow a man only a portion of the freedom he requires by his nature.

What of the fetus? Does it have rights which must be respected? The concept of rights is based on man’s nature and presupposes the existence of an actual, fully formed and separate human being. Fetuses and embryos are not actual human beings; they are potential human beings. They have no rights until they exist apart from the mother, i.e., at birth. This is not to condone the morality of arbitrarily delaying an abortion until the last months of pregnancy–when the fetus is approaching humanness. But the function of the law is to protect rights–not to dictate moral issues which involve no violation of rights.

The only proper function of government is to protect man’s absolute rights against violation by other men. No government, no state, no collective has any “interest” apart from the individuals of which it is composed. Thus, it can have no “interest” which conflicts with any individual’s rights, such as a paternalistic interest in “maternal health.” Our Consitution was drafted in recognition of these principles. It was designed, not as a charter for government power, but as a protection against government power, i.e., against invasion of individual rights by the government. For this reason, the Constitution enumerates the limited powers of the government but not (as made clear in the Ninth Amendment) every individual right.

These are the principles that should be advanced in Webster. If Roe v. Wade is reconsidered, the Supreme Court should affirm abortion as a right that cannot be invaded or compromised.