On April 26 the Supreme Court of the United States heard oral argument in Webster v. Reproductive Health Services (1989), a case in which the Court is being asked – by the Solicitor General of the United States, among others – to overrule Roe v. Wade, the 1973 Supreme Court decision declaring that a woman has a constitutionally-protected right to choose to abort a fetus and end her pregnancy. Is Roe v. Wade right? Wrong?
Roe v. Wade is partly right in its result, but dangerously wrong in its reasoning. Roe v. Wade is correct in its conclusion that a fetus has no rights and that a woman has the right to determine whether or not to abort her pregnancy. But Roe v. Wade is wrong insofar as it holds that “state interests” justify interference with the woman’s right and that, when the state so desires, it may commandeer her body either for her supposed benefit or the benefit of a fetus.
In some 37 pages of discussion on the substantive issues in Roe v. Wade, the Court spent barely three in discussion of the fundamental issue: the nature of the right to abortion. Much more attention was given to how and when this right may and should be limited to further the “state’s interest” in the health of the woman and in potential human life. On the basis of such “interests,” the Court decided that the state may regulate abortion throughout pregnancy to protect the woman’s health and generally prohibit abortion when the fetus becomes “viable.” In so deciding, the Court conformed to a theory which has prevailed in United States law for most of the twentieth century: rights are not absolute and must be “balanced” against (i.e., invaded by) the “interests” of the state. In Roe v. Wade, the Court concluded that at the point of fetal viability, the “state’s interests” in potential life outweigh the woman’s right to control her own body.
None of the main briefs filed in Webster, whether for or against abortion, expresses any opposition to “balancing.” Indeed, attorneys for Reproductive Health Services, including counsel for the ACLU of Eastern and Western Missouri, endorse the idea. The ACLU attacks the Solicitor General for proposing an analysis in which “countervailing state interests undercut the nature of the right itself rather than guiding the extent to which it can be abridged.” Is there much to choose between here? So long as it is assumed that rights may be overridden by “state interests” the only question is not whether, but how much will the right at issue be curtailed?
Abortion is a right, and all rights are absolute and cannot be “balanced” away. Ayn Rand has explained:
“A right is a moral principle defining and sanctioning a man’s freedom of action in a social context.” The moral standard to be applied, Ayn Rand has shown, is that of man’s life and what is “required by man’s nature for his proper survival.”
The fundamental condition for man’s survival is the freedom to use his rational faculty to maintain and enjoy his life. Thus, a pregnant woman, like every other individual, has the right to determine her own destiny and the destiny of her body, to choose what constitutes her own best interest and private happiness, and to work for its achievement, so long as she respects the same rights in others.
These rights, and all rights, are absolute by their nature. It cannot be proper to negotiate moral principles. It cannot be proper to allow a man only a portion of the freedom he requires by his nature.
What of the fetus? Does it have rights which must be respected? The concept of rights is based on man’s nature and presupposes the existence of an actual, fully-formed, and separate human being. Fetuses and embryos are not actual human beings; they are potential human beings. They have no rights until they exist apart from the mother, i.e., at birth.
This is not to condone the morality of arbitrarily delaying an abortion until the last months of pregnancy – when the fetus is approaching humanness. But the function of the law is to protect rights – not to dictate moral issues which involve no violation of rights. The only proper function of government is to protect man’s absolute rights against violation by other men. No government, no state, no collective has any “interest” apart from the individuals of which it is composed. Thus it can have no “interest” which conflicts with any individual’s rights, such as a paternalistic interest in “maternal health.” Our Constitution was drafted in recognition of these principles. It was designed, not as a charter for government power, but as a protection against government power, i.e., against invasion of individual rights by the government. For this reason, the Constitution enumerates the limited powers of the government but not (as made clear in the Ninth Amendment) every individual right.
These are the principles that should be advanced in Webster. If Roe v. Wade is reconsidered, the Supreme Court should affirm abortion as a right that cannot be invaded or compromised.
Copyright © 1989 The Association for Objective Law. All rights reserved. The above is an op-ed article on abortion written by TAFOL officers and circulated to various newspapers by The Ayn Rand Institute on behalf of TAFOL. The Christian Science Monitor initially accepted the op-ed article for publication but subsequently rejected it. Published in Capitalism Magazine by permission of TAFOL.
