Why Women Can Never Have A Constitutional Right To An Abortion

Why Women Can Never Have A Constitutional Right To An Abortion

An understanding of rights that does not allow them all to be obtained simultaneously is incoherent.
Timothy M. Jackson
By

The Kansas Supreme Court recently ruled that women have a state constitutional right to abortion. This means, in the event that Roe v. Wade is overturned, abortion would still be legal in Kansas.

What were the grounds for this ruling? Nothing less than an appeal to the inalienable rights of human beings. To quote the majority opinion:

All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.” We are now asked: Is this declaration of rights more than an idealized aspiration? And, if so, do the substantive rights include a woman’s right to make decisions about her body, including the decision whether to continue her pregnancy? We answer these questions, “Yes.” We conclude that, through the language in section 1, the state’s founders acknowledged that the people had rights that preexisted the formation of the Kansas government. There they listed several of these natural, inalienable rights—deliberately choosing language of the Declaration of Independence by a vote of 42 to 6.

What is curious about the reasoning of this ruling is that it rejects the logical conclusions of the stated premises. If rights are inalienable, they exist prior to birth, they are harmonious, and they cannot rightly be revoked by counterfeit claims of rights.

Inalienable Rights Begin When You Do

The claim that human beings have inalienable rights is an affirmation that all human beings by nature have rights as human beings, independent of any government ruling. This is what the Kansas Supreme Court explicitly acknowledged in their reasoning.

However, what necessarily follows from this reasoning is that a human being has rights from the moment she begins to exist. This, by the way, would include any claimed right to bodily autonomy.

If human beings have the right to bodily autonomy, you cannot consistently claim this is an inalienable right that is intrinsic to every human being and claim a human being only acquires this right at birth. It is hard to imagine a more acute violation of bodily autonomy than the intentional and forcible poisoning or dismemberment of their body to the point of death.

Yet what right did the court acknowledge of the live human beings who have not been born? If human beings are only conferred rights at birth, this not what the word “inalienable” means. This is the expression of the opposite, in fact.

All Inalienable Rights Can Exist in Harmony

Second, if rights are inalienable, they cannot contradict each other. Others have an obligation to respect each particular right at every moment. You cannot pick and choose which rights to ignore. If inalienable rights could truly be in conflict with each other, this would result in an endless number of scenarios in which it is logically impossible to carry out your obligations to other human beings. This is absurd.

There cannot be a moral obligation to carry out the logically impossible. It is logically possible for all human beings to coexist in a society in which all their inalienable rights are protected under the law. This is the ideal the founders encouraged us to strive for and approximated in the Declaration of Independence. This ideal would lead to the recognition that both a pregnant woman and her unborn child can have all their inalienable rights consistently protected.

Rejecting Counterfeit Claims to a Right

If there is an apparent conflict between two rights, it is important to recognize that it cannot be an actual conflict. One of the two “rights” is only masquerading as a genuine right. It must be a counterfeit. The real work is in identifying the imposter. This is where the debate on abortion must be waged.

For example, a right we can now all agree was counterfeit was the “right” to own slave. It was the false application of our inalienable right to property. Why? Although an inalienable right to property exists, another human being cannot be reduced to someone else’s property.

This also created an apparent conflict between to competing rights where none actually existed: namely, a right to property of one class of human beings versus the right to liberty of another class of human beings. But a right to property for some that inherently denied liberty to others, without due process, showed quite clearly it was not a valid claim to property.

Two Competing Rights

With abortion, we have a similar apparent conflict between two or more competing rights: a right to bodily autonomy for one class of human beings versus the right to life (and bodily autonomy) for another class of human beings.

One understanding of a bodily autonomy claim also seems to reduce another class of human beings to someone else’s property, as it presumes a pregnant woman has a right to choose what she will do with that which belongs to her, and the human being in her womb is included in “that which belongs to her.” But as we have seen in the case of slavery, another human being cannot be reduced to another human being’s property.

Another way of framing the bodily autonomy claim is as a claim to liberty rather than property. One might argue the right to bodily autonomy does not reduce the unborn to property but protects a woman’s liberty to abstain from sustaining her child’s life in pregnancy. In this apparent conflict of liberty versus life, which is the imposter?

This is a false application of our natural right to liberty. There is no such thing as liberty to intentionally kill an innocent human being. A right to liberty that denies life without due process only reveals it is not a valid claim to liberty.

Whichever way you frame this, a ruling of this sort fails to acknowledge the right to life, liberty, or the bodily autonomy of the unborn, all of which would exist if human beings possess inalienable rights, as the Kansas Supreme Court claimed. Kansas failed to uphold the purpose of government: to protect life, liberty, and property with any internal coherence.

Timothy Jackson loves to discuss God, politics, and what it means to pursue the Good. He lives in Kansas City with his wife and two children. Follow him on Twitter @TMichaelJack.

Copyright © 2019 The Federalist, a wholly independent division of FDRLST Media, All Rights Reserved.