Dear Viewpoint:

President Gerald Ford, 1974, upon pardoning Richard Nixon: “My fellow Americans, our long national nightmare is over.” Maybe so, but our greater nightmare has been abortion all along. Rocker Alice Cooper released his “Welcome to my Nightmare” in 1975. That was for entertainment purposes only, but the “Pro-Life” vs “Pro-Choice” debate certainly is not — it is a confounding social, moral, religious, legal, and constitutional dilemma that hangs over our nation, and unfortunately our electoral system, without letting go.

When Associate Justice Harry Blackmun wrote the Supreme Court’s opinion in Roe v Wade in 1973, he thought he had created the “perfect compromise.” Much to his disappointment though, there was no such thing. But constitutionally and historically, Blackmun was right: on most issues we should and do find compromise, it is inherent in our system. So why can’t we solve this?

What have they wrought? Trump’s proud of the chaos he has caused on the abortion issue, now more muddled and contentious than ever. “Leave it to the states, states rights” he says. If only it were that simple. He once said, “I’m pro choice.” Keri Lake once said she supports Arizona’s archaic abortion law, now she acts all offended by it. When the U.S. Supreme Court concluded in their 6-3 Dobbs decision in 2022 that the right to abortion is not in the Constitution thus leading them to overturn Roe, they erred judicially and ignored the reality of 200-plus years of Constitutional interpretation. The history of the United States, especially beginning in the mid-20th century, has been dominated by an expansion of individual rights at the expense of government power over the individual. And that was the intent of the Founders all along. The fall back alternative to a federal law is states’ rights that could invariably leave many women trapped in places without reproductive choices. In that way, a federal statute is absolutely necessary. Besides, this type of dispute is exactly why the federal government has the means and power to settle state by state disparities of such magnitude.

Civil liberties granted under the Bill of Rights have all seen increased protections and advances over the past 100 years for the benefit of all. In addition, those such as workers rights, child labor laws, and women’s rights have achieved permanent status in American law even though none of them were expressly granted in the Constitution. To suddenly carve out an exception to exclude a woman’s right to choose over her reproduction flies in the face of judicial statutes and common sense. The 4th Amendment “The right of the people to be secure in their person …” is about as clear as anyone can make it that the Constitution does guarantee a “right to privacy” to both the plural society and the individual realm. In that, personal privacy in all things is fundamental to a free society. Without individual privacy protection in thought and belief there can be no freedom. And that includes freedom from government interference.

The conservative justices on the U.S. Supreme Court, and now those on the Arizona high court, used original intent interpretation to a terribly flawed extent. And a cruel outcome on top of that. To think mortal men in a state legislature can impose their narrow religious beliefs on secular governing in America is an abdomination which inflicts harm to individuals, the Constitution, and even to their own religion. It is an immoral affront to any woman who has been impregnated by a rapist or through incest for any other human to force her to carry that baby to term against her will. And now even if that fetus is proven to be non-viable or dead she cannot abort it without prosecution. I cannot dispute the implication that such a decision endorses the actions of the rapist.

It is clear that Arizona’s 1864 anti-abortion law is antiquated, but we should not get hung up on just the date. Our entire system is based on the Constitution, our guiding document that was written in 1787. But it’s the context of the abortion law’s era that matters: it was a time before women could vote and a time prior to medical advances that could detect fetal abnormalities. The law is found in Arizona’s 400-page Howell Code, written by territorial governor William Howell, a New York lawyer who pretty well copied it from California’s version, collected his fee and left. To put this in to perspective, The leader of Arizona’s first legislature at the time was William Claude Jones, a man who was married to at least four different girls under the age of 15 over the years. His first “wife” was an abducted 12-year-old Mexican girl. Jones over saw the laws of the Arizona Territory. The age of consent was 10 years old. The prevailing attitude at the time was that there was a need for more white children to be born in the territory. In addition was the common belief that a young pregnant girl got that way due to her seducing an older man. This is the backdrop to Justice Sam Alito’s reasoning in Dobbs in which he said abortion rights do not have a legal tradition in American law. Even if the 1864 ban is repealed, it will not change the basis of Arizona’s lawmakers’ anti-choice positions, nor will it lead to a more moderating statute.

The beauty and strength of the Constitution is its flexibility to adjust to changing times, both technologically and morally. The argument over the “flexibility” of the Constitution goes back to the original conflict between Jefferson and Hamilton over the “necessary and proper clause”, the “elastic clause”, and the extent of government power over the nation’s finance. In modern days the dispute over whether the Constitution is a “living, breathing” document or a constant, unchanging one was personified by Justices Ruth Bader Ginsburg and Antonin Scalia in their spirited debates over the years. They never resolved the issue which is great, though we’ve seen expanded government involvement regarding the enumerated powers in Article I, Section 8. The document has kept it’s integrity and grounding while allowing adaptation to a changing world, proving Bader was correct.

The underlying issue of the “pro-choice” vs “pro-life” debate is not just the right to an abortion. It is the greater issue of women’s rights over themselves as individuals and as equal citizens. The most private, personal decision of a woman’s life is that of giving birth. No one else can understand or appreciate each and every woman’s situation when pregnant, including male lawmakers miles away. To interfere in that decision is the ultimate in disrespect of another person. And to base that interference on religion is religious arrogance and a step towards theocracy. It’s as if a woman does not deserve to be given the respect and autonomy to make the “correct” choice. Thus the fundamental issue of personal autonomy transcends that of the vagaries of the reproductive questions of when life begins, when a fetus is a person, and at what point in the cycle is abortion legal or not. There are many answers to those questions and we can argue over them until the cows come home.

I personally have my own answers. But I do not force those opinions on others. I might well concede that the right to life extends to the unborn. But I also know that this concession is not and cannot be universally applied, or shared, considering the various circumstances and realities. There is no doubt the decision cannot be taken lightly. Interestingly, nowhere in the Constitution will you find “right to life.” Compromise my friends, compromise and put an end to this dispute.

Jeff Dunson
Clarksville

The post A confounding dilemma first appeared on SoVaNOW: Home of The News & Record and The Mecklenburg Sun.