My Position (Part 5) What is the Role of the Government?

So where are we?  I’ve shared my beliefs on the philosophy of life, when it starts, and who has the authority to end life, a right held principally by the state, but on occasion delegated down to certain individuals.  Up until now I’ve included few references, except where necessary to explain a concept.  I did this because we were talking about fundamental concepts each of us must define for ourselves.  From this point forward I will alter that approach to take advantage of the wealth of material available on the web.

In the landmark decision of Roe v Wade the Justices did not enter into the debate of when life begins, to have done so would have forced them into determining if the rights and protections of citizenship were granted at conception and thus give the state to speak for the rights of the unborn placing those rights above the right of the mother.  The argument made by Texas in defense of its laws was a fetus was a life and therefore protected by the 14^th Amendment, interestingly the very same amendment most people use to question Barrack Obama’s right to be President.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.  (www.usconstitution.net)

There are four additional paragraphs, dealing with apportionment of representation, limitations on holding office once you’ve participated in a rebellion against the country and payment of debts, excluding debts incurred in aid of rebellion (14^th Amendment came into being following the Civil War), but it is the first paragraph at the heart of this debate.

Up until the foundation decision of Roe v Wade, the issue of abortion was a state issue.  It was not a debate on what the federal government should or should not do.  Most states had, in the 1800s enacted anti-abortion legislation, with the exception being when necessary to preserve the life of the mother.  The medical art being what it was then; there was little exactness in any procedure, whether medical or herbal, and the life of the mother and the fetus were always in question.   Even Susan B. Anthony, an early feminist, argued against abortion (http://en.wikipedia.org/wiki/Abortion_in_the_United_States) saying

“Guilty? Yes, no matter what the motive, love of ease, or a desire to save from suffering the unborn innocent, the woman is awfully guilty who commits the deed. It will burden her conscience in life, it will burden her soul in death; but oh! thrice guilty is he who, for selfish gratification, heedless of her prayers, indifferent to her fate, drove her to the desperation which impelled her to the crime.” (http://www.prolifequakers.org/susanb.htm)

At the time of this court case in 1970 abortion on demand was legal in four states, Alaska, Hawaii, New York, and Washington.  In the remaining 46 states, as well as the District of Columbia, it was either illegal or legal within specific guidelines (i.e. rape, incest, danger to a woman’s health, or a damaged fetus).  With this decision the Supreme Court empowered the federal government to control the abortion debate.  This is roughly equivalent to saying to the states, we won’t take away your right to judge and execute someone, but if you strive to protect life that is a federal decision.  The assumption made was the right of the woman outweighs all other considerations, but the ruling doesn’t say that, it hinged on defining the woman as worthy of protection under the 14^th Amendment, but not a fetus.

So what is the role of the federal government or really what should it be?  Can it, by default, value the life of one of its citizens above the rights of another, and if so does it maintain its legitimacy? Obviously by executive order or by legislation the government can establish any policy it chooses, as long as the Supreme Courts does not rule a violation of the Constitution.  That is the tricky part.  Everyone can find fault, can their lawyers form a convincing argument that will persuade the courts to overturn the law, the regulation, or the executive order?  Legitimacy is another question.  As the War Between the States has shown the government can force its will upon the subordinate parts, as long as the dominant political party and the electorate support that course.  Legitimacy is then relative; as long as the majority chooses to allow the government to do something the government can claim it is acting in the peoples interest.

It was a Nixon appointed Justice that wrote the majority opinion in Roe v Wade, so I think it safe to say in the 1960’s leadership in both parties were at best neutral on the pro-life/pro-choice debate. When I was growing up, the governor of New York was Nelson Rockefeller (1959 to 1973).  His positions more often aligned with the Democratic leadership than where the Southern Democrats who were far more conservative.

“Rockefeller supported reform of New York's abortion laws beginning around 1968. The proposals supported by his administration would not have repealed the long-standing prohibition, but would have expanded the exceptions allowed for the protection of the mother's health, or in circumstances of fetal abnormality.  The reform bills did not pass. But an outright repeal of the prohibition did pass, in 1970, and Rockefeller signed it. Further, in 1972 he vetoed another bill that would have restored the abortion ban.  He said in his 1972 veto message: ‘I do not believe it right for one group to impose its vision of morality on an entire society.’”  (http://en.wikipedia.org/wiki/Nelson_Rockefeller)

I have to admit I agree with Nelson Rockefeller’s last statement.  I do not believe it is right for one group to impose its vision of morality on an entire nation.  I would go one step further and say therefore it is wrong for one segment of society to force the rest of the nation to fund their vision of what is morally acceptable.

As the court has found in Miller versus California (an obscenity case) it must apply a local standard to determine whether something should be considered obscene.  That is to say something acceptable in New York, may not be acceptable in Boston.  I am not sure why abortion would be handled differently than obscenity, and there be one overriding standard for what had, up until 1973, been a states issue.

Bottom line:  The determination of a woman’s need for abortion in the first trimester has been given to the woman’s doctor, but beyond that the federal government should not be involved.  To do so usurps the rights of the states, whose rights should be protected in accordance with Article IV of the Constitution.