By Alan W. Cohen
Tomi Lehren has been suspended for expressing her view on The View on the abortion question. Lehren argues that if you believe in liberty from state interference, how can you then support state control over a woman’s body?
This dilemma is where libertarians differ from conservatives. We both agree that Roe v. Wade was wrongly decided, but we disagree as to why. Without getting too much in the legal weeds, let us just say that we libertarians believe that the Ninth Amendment is the source of the Right to Privacy. Conservatives, especially those that refuse to understand that fact, are befuddled with any right that is not expressly stated in the first eight amendments. In an interview in 2015, Justice Clarence Thomas expressed the Conservative view, but, as stated in my last blog, he firmly accepts that there are many of our inalienable rights that exist in the Constitution that do not appear specifically in the Bill of Rights.
The issue for Libertarians is this: Is abortion a purely personal, moral choice? If so, there is no place for governmental interference. The problem with Roe is that is was based on science, and not the Constitution. Science has a tendency to change as we learn more. The Constitution remains, subject to amendments, the same. The idiocy of the Roe is that it was decided at all. Up until that 1972 decision, abortions happened every day in the privacy of the doctor’s office despite its illegality. It was a moral question for the doctor and the woman seeking treatment. For years, the Supreme Court had dodged the abortion question on mootness grounds. After all, no case could come to fruition in the nine months of pregnancy. Mr. Justice Blackmun had other ideas. He thought he could end the controversy with his famous trimester balancing test. Talk about your naivete. All he did was cause a political firestorm that continues to this day.
While we cannot pretend that Roe never happened, we can, as libertarians, consider the hypothetical dilemma. Does the majority have the constitutional authority to force the minority of women who are carrying an unwanted child to bring that child to term? After all, abortions predate the Constitution, albeit in crude and unsafe ways. Tomi Lahren clearly believes we cannot, and Glenn Beck has suspended her for her beliefs. The State has the authority to protect citizens from harm. Does it have the authority to confer citizenship on an an unborn child? If so, then abortion would indeed be murder, and every doctor and patient would be guilty of conspiracy to commit murder, a capital offense in many states. Late-term abortions, the so called partial birth abortions, then perhaps should be classified as murder. If a woman gave birth to a child, and then ended its life, it is murder. So, if a child was so clearly viable that it could survive outside the womb, why wouldn’t that also be murder?
But let’s be clear. Just as it was prior to Roe, who would be the wiser if a woman and her doctor ended a pregnancy early on? Does the State have the resources to investigate every act of choice? And, just like polygamy, would anyone actually come forward to testify? Government has given up on prosecuting polygamy, and as I explain in great detail in my latest book, Private Vows: The Case for Ending State Regulation of Marriage and Divorce. The practicality of government prosecuting a woman and her doctor would be just as impossible. Who would know if a crime was actually committed? And, if so, who would testify? Certainly, no one would admit to its commission. And the forensic evidence would long be gone.
The Pro-Life Movement should continue to educate us on the consequences of the act. Science should continue to inform us of the life that exists after conception. People need the best information to make moral choices. If, however, the State wants to prevent abortions, it would do so in practical ways. The Victorian Era is over. Young people are going to have sex. Science, however, has provided us with methods to prevent conception, and, financially (especially on Welfare) the State would benefit in the long run if it provided those young people with free contraceptives, including, and especially the newest injections and the upcoming Male Pill. Let’s face it. If men could take a pill to prevent pregnancy, the abortion debate might just fade away.
Alan W. Cohen practiced law for more than 25 years before retiring. Besides this blog, he is the author of several books, including the aforementioned Private Vows, published in 2017, and available at Amazon.com.