The Pro-life Position is Not About Taking Away Rights

• By Nathan Apodaca
• May 16, 2023

A common question that has arisen in light of the Dobbs ruling last summer has to do with concerns about the rights of women, particularly, that the ruling takes away Constitutional rights that were already being enjoyed and utilized.

This is a popular concern raised, and Democratic politicians have latched onto the idea in recent months as candidates begin preparing for the 2024 General elections. The concern is understandable; after all, the idea that the Constitution could be rewritten to give rights and then take them away should be of concern to everyone, regardless of views on abortion.

However, there is more to the issue than meets the eye. Since 1973, the abortion issue has hinged upon one question: What are the unborn? If the unborn are members of the human community, it sounds bizarre to say there is(or should be) a Constitutional right to deliberately kill these members of the human family. Pro-lifers have been fighting for the chance to overturn Roe for precisely this reason: No civil society should allow people, particularly parents, to intentionally kill other innocent human beings with the full blessings of the highest law in the land.

On the other hand, the pro-choice side does not defend(with a few exceptions) the idea abortion intentionally kills innocent human beings. Rather, they assume or argue that abortion does not kill a member of the human family. Clearly, the central issue regarding the fight over abortion is in determining the answer to the question, what are the unborn?

There is another, more obscure issue at play here. Even though the Roe Court claimed to recognize a right to undergo abortion in the Constitution, a more subtle debate has been ongoing about whether the Court decided correctly that abortion was a right granted by the Constitution in first place.

This is where the problems start, and underlies much of the confusion surrounding Dobbs. Very rarely(if ever) is an argument made that the legal reasoning of the Court in Dobbs was incorrect or that Roe got it right. Instead, the arguments amount to complaints about the outcome of Dobbs. These are two separate issues. Dobbs could still be legally sound even if there is nothing morally wrong with abortion.

The issue comes down to the legal reasoning employed by the Roe Court. As Francis Beckwith points out, issues start when one looks at the legal history employed by Justice Harry Blackmun(author of the majority opinion) in which flawed arguments were made claiming unborn children were never considered to be “persons” under the definition granted in the 14th Amendment.

This reasoning was subjected to scrutiny following Roe until the Casey decision in 1992. The poor reasoning involved in the Roe decision became apparent when, as Beckwith also points out, Casey failed to rely on Roe’s reasoning and instead created new legal arguments for the legality of abortion. As Beckwith notes, if Roe’s reasoning was sound, this was unnecessary, and helps highlight the legal mess Roe inadvertently created.

If Roe was a poorly decided case, then it follows Dobbs may have been a correction to a faulty decision by the Supreme Court. This opens the door to the possibility Dobbs didn’t “remove” a Constitutional right, it means the Roe Court may have decided a particular right was granted by the Constitution when no such right existed in the Constitution to begin with.

Objections to Dobbs are valid if they question the Court’s reasoning. Complaints that the Court took away a Constitutional right don’t bear much weight if the Court in Roe was mistaken.

Even then, the issue is not resolved regardless of the Constitutionality of abortion. What is at issue is whether or not abortion should be a right protected by the Constitution to begin with. As stated above, if the unborn are valuable human beings, and abortion intentionally kills these innocent human beings, then it seems odd and even dangerous to argue the Constitution should declare certain forms of homicide as “rights” or protect them.

Complaints about the loss of rights are only valid if the unborn are not human, otherwise one is situated with complaining they have now lost the constitutional right to engage in intentional killing.