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Aborting the Process

by James N. Markels

Now that the Republicans finally hold the House, Senate and the White House, they have a real chance to enact some legislation limiting abortion. They’re not wasting any time—they know there’s a good chance they’ll lose control of one or both houses in just two years. Just last Thursday, House Republicans opened up a new effort on the abortion front that they plan to expand into all sorts of areas surrounding abortion and birth control. But even a pro-life libertarian won’t find much solace in the Republican way of defending fetuses.

The first initiative proposed, the Unborn Victims Act, would make it a federal crime to injure or kill a fetus during an assault on a pregnant woman, even if the attacker was unaware of the pregnancy. Democrats like Rep. Jerrold Nadler (D-NY) see such a proposal as the camel’s nose under the tent; the implication of such a law would be that hurting a fetus infringes that fetus’ rights, therefore you can extrapolate the reasoning to ban abortion. Proponents see UVA as a form of protection for the fetuses of pregnant women who have decided to carry to term. In other words, the woman intends to have the baby, and the attacker has deprived her of it, so the law actually protects women’s rights.

Frankly, it doesn’t matter who you believe. Such a law would be flat-out unconstitutional, for the exact same reasons the Violence Against Women Act was ruled unconstitutional: Congress doesn’t have power to federalize violent crime against women, pregnant or otherwise. The best constitutional source of authority that the government could come up with for VAWA was the commerce clause. Perhaps they’ll try that one again with the new initiative should it ever become law, and it will fail just as spectacularly. At least this time Democrats will find constitutionalism to be useful, if only until it blockades one of their future favored agenda items.

Congressional Republicans are also looking to stick their nose into the availability of RU-486, or the “Morning After Pill.” While Congress could certainly use the commerce clause as an excuse to meddle with RU-486, limiting access to alternatives to abortion isn’t the smartest way to reduce the incidence of abortion itself, which is what most people should want. I don’t think you’ll find anyone in the abortion debate that actually embraces abortion and wants more performed. I think most people would favor a world where the only women getting pregnant are those who want to, with no abortions needed except for severe health reasons. The only dissenters might be the hard-core traditionalists who oppose any kind of birth control, preferring that God be the one determining which sexually-active women get pregnant.

Now, I realize that abortion is a touchy subject among libertarians, and I will be the first to say that there is no proven “correct” answer. Everything depends on the premises, and there are no universally accepted premises for abortion. Does a human zygote have rights? If so, then RU-486 is rightfully perceived as an abortion, not merely birth control as I’ve described it. Are rights only bequeathed at birth, as libertarian Robert J. Ringer argued in “Restoring the American Dream”? Or somewhere in between? Good, principled libertarians can come to a myriad of conclusions on the matter, and they are all potentially right. Yours truly has determined that viability is a logical point for rights to exist, but I’m still unsure about making it any earlier. That’s for another discussion.

What we’re left with is the process. Libertarians of all stripes might disagree on abortion, but they should agree that a decision one way or the other shouldn’t come at the expense of the Constitution. Roe v. Wade, despite the fact that I happen to agree with the viability determination it made, started us down the path of abusing the process to achieve a political goal. Republicans, now emboldened by their newfound majoritarian position, will seek further federal involvement in abortion—whether given such authority by the Constitution or not—and degrade the process even more.