Op-Ed: Calling Abortion "Essential" Is a Deceitful Sleight of Hand
The Founders were superb architects.
They established the Constitution on “essential principles only … permanent and unalterable,” that have peremptory force, remain self-executing and cannot be abrogated by positivist laws seeking superficial “[accommodation] to time and events.”
Historical evidence has established irrefutably that legal protection for “the infant in the mother’s womb” is, to use Justice Clarence Thomas’ recent phrase, “preserved in the constitutional design.”
In removing the designated legal protection of the right to life and the right to be treated as persons, not property, from these smallest human beings targeted for abortions, the majority justices in Roe v. Wade contravened two founding principles: the right to life and the “no property in man” principle.
The Supreme Court was never empowered with any such authority to tamper with any of these essential, permanent and unalterable principles.
What the Founders meant when they used the term “essential” has no rational application to abortion as misconstrued nearly 50 years ago by Roe v. Wade as a “lawful choice.”
There is a fundamental difference between essential treatment to save the life of the mother and an elective abortion.
Regrettably, in Roe v. Wade, the truth about abortion was misrepresented.
Justice Harry Blackmun failed to respect the critical distinction between preterm parturition (the separation of a mother and her unborn child for the purposes of saving a mother’s life) and an induced abortion, the purpose of which is to “produce a non-viable fetus at any gestational age.”
Procured abortion is a deliberate “choice” to assault and destroy the unborn child as the mother’s property.
Preterm parturition, however, is the unintended result — the unintended loss of life for her unborn child — from a genuinely essential medical treatment carried out to save the life of the mother.
Pro-Abortion Groups Have Chosen To Operate Under the Language of Choice
Mark Harrington of Created Equal, an Ohio-based pro-life group, has picked up on the fundamental logical discrepancy between abortion as “choice” and abortion as “essential.”
Pro-abortion ideologues going back to Roe v. Wade have stubbornly insisted that abortion is a “choice.”
Harrington has homed in on this indisputable fact and has argued succinctly: “If abortion is a choice, then it’s certainly elective.” Because pro-abortion groups have chosen to operate under the language of choice, Harrington reasons, then “this is the time to hold them accountable for that.”
Professor John Courtney Murray in his 1960 book “We Hold These Truths” foresaw the inevitable consequences of the 20th century abandonment by many in U.S. politics, society and law of what the Founders had recognized as essential values:
“Political freedom is endangered in its foundations as soon as the universal moral values, upon whose shared possession the self-discipline of a free society depends, are no longer vigorous enough to restrain the passions and shatter the selfish inertia of men.”
Historically, the U.S. Constitution was grounded firmly and inextricably on permanent and essential principles.
The hard truth is that constitutional law cannot be converted now to the utilitarian or consequentialist approach of today’s “progressives.”
Such a conversion cannot be done without a catastrophic unraveling of all the human rights protections that have been painstakingly built on essential principles such as equal protection before the law for every human being, equal safeguards including legal protections for our posterity and an equal right to life and survival for everyone who together comprise what Lincoln called “the whole great family of man.”
Indeed, Lincoln’s 1858 Lewistown speech on the origins of the Declaration of Independence leaves no room for today’s deadly discrimination against “chosen” members of our posterity.
Such discrimination, misrepresented as “a right to choose,” is contrary to what Lincoln reaffirmed as the Founders’ “understanding of the justice of the Creator to His creature”:
“Yes, gentlemen, to all His creatures, to the whole great family of man. In their enlightened belief, nothing stamped with the Divine image and likeness was sent into the world to be trodden on, and degraded, and imbruted by its fellows. They grasped not only the whole race of man then living, but they reached forward and seized upon the farthest posterity. They erected a beacon to guide their children and their children’s children, and the countless myriads who should inhabit the earth in other ages.”
Indeed, the principles of the Declaration were recognized and established to be enduring, and the first of these principles is the right to life.
Denying the “Essential … Permanent and Unalterable” Nature of the Right to Life
It is to this first principle — the right to life — that current pro-abortion legislation in the United States has failed to give due respect.
Rejecting the founding principles of the inclusion, inherency and inalienability of the right to life can never be justified by today’s positivistic reduction of good and evil to what is useful or convenient or “wanted.”
Supreme Court progressives have failed to give due consideration to the original “simple and precise language” of the Founders and to the intent and legislative history of the right-to-life norm as recognized in our founding instruments, the Declaration and the Constitution.
The right to life of children in their mothers’ wombs belongs to that class of customary law, jus cogens, that has peremptory force and cannot be abrogated by any amount of proliferation of revisionary positivist laws.
Nor can the unalienable right to life be revoked by hastily devised legislative and judicial precedents. Nor again can it be rescinded by re-interpretation through innovative jurisprudence heavily influenced by the latest untested academic theories or by recklessly experimental “brave new world” ideologies.
A Clever Sleight of Hand
In expanding the right-to-life norm to include an alleged right to “choose abortion,” these proponents of legal abortion delete, in the process, the right to life for our posterity — one of the essential principles that were meant by the Founders to remain permanent and unalterable.
Today’s abortion advocates are engaged not simply in the expansion of rights to accommodate an ideologically fabricated new “right” but also in the deletion of a venerable natural law right long recognized as essential.
They are replacing the age-old right to life of the unborn child with a woman’s brassy new “right” to have her unborn child aborted.
It is a clever sleight of hand. A right to abortion slithers into a mother’s right to life and is applauded as a noble advance in human rights: In reality the right to life of her unborn child is being de-recognized, both conceptually and in practice, whereby her child’s very life may then be effectively and “lawfully” obliterated.
Removal of legal protection of the right to life for any group of small, lively, very new human beings cannot be done without compromising the essential principle of the right of these children to go on living.
To delete essential, permanent and unalterable principles such as the unalienable right to life for any member of our posterity — for any child in utero or ex utero — is an invalid action under constitutional law.
