Overturn Roe? NO! (Rebuttal), by William Westmiller

Exclusive to TLE

Every libertarian can sympathize with Mr. Antle's plea for governments limited to the defense of individual rights. But he defends limits only on the federal government. State governments, he implies, should be free to pillage every individual's natural human rights with impunity. If, "under the Tenth Amendment, states are free to debate the issue of whether to protect the unborn," then there is no restraint on states choosing to endorse black slavery. After all, the original document only counts blacks as 3/5 of a person!

Mr. Antle will likely correct my error in crediting the courts with forbidding black slavery. In the Dred Scott decision, the Supreme Court did the exact opposite, offering a "strict construction" of the racial flaws in the Constitution, rather than applying the "penumbra" of equal rights for every human being. Abortion opponents seem ready to discard the Thirteenth Amendment's ban on involuntary servitude as merely applying to blacks, not pregnant women. Likewise, they scoff at the obvious intent of the other Amendments.

If the Fourth Amendment doesn't make women "secure in their persons" against the invasion of Fetal Cops, then whose rights does it defend? If the Fourteenth Amendment doesn't preclude states from depriving a woman of her natural right to life and liberty, then what rights does it defend? In the extreme, Mr. Antle implies that state governments could properly legalize mass murder of its opponents, since such a ban is not literally required by the U.S. Constitution. In pursuit of a ban on abortion, advocates don't merely skirt the literal provisions of the Constitution and its Amendments, but also the fundamental principles upon which it is based.

The foundation of the U.S. Constitution is "self-evident" in the words of the Declaration of Independence: all legitimate governments are "instituted among men" for the sole purpose of securing every person's natural right to "life, liberty and the pursuit of happiness." It is never a question of whether government powers are "decentralized" in states or specified by one branch or another, but whether those powers are just in service of the profound purpose of securing individual rights.

Natural individual rights are not negotiable, open to compromise, competition or distribution. No person, no collective, no authority, can justly violate the life, liberty or property of any innocent person. Only when we entertain the prospects of granting "rights" to a non-person do we encounter the logical contradictions, fantastic implications, and pleas for the oppression of real people.

Consider, for a moment, a Supreme Court ruling that the "pro-life" advocates would applaud. "Fetal rights" would not be equal to, but would supersede, every woman's rights; enforcement would require a "search" of every fertile woman to defend a potential fetus that might be in jeopardy; the habits and inclinations of every pregnant woman would come under public and potentially self-incrimination scrutiny. The legal destruction goes on and on, encroaching all the natural rights that any real person can justly claim.

Some opponents of abortion describe the Roe decisions as "judicial tyranny" for resolving an issue of law outside the legislative process. But, precedent must begin somewhere and the Supreme Court is obliged to resolve contradictory laws that bear on the individual rights of citizens. It does that in every case it considers. In the Roe case, it found a host of conflicting state laws and strong precedent to guided its finding. In that respect, the Roe court was exceedingly judicious, showing a deference to state law at the expense of higher legal and constitutional principles.

What the court ought to "overturn" is any doubt about the natural right of every woman to control her own body.

Westmiller has critiqued more recent Supreme Court rulings for several libertarian eZines.

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