A Legal Argument Can Be Made Against Abortion

Abortion3by FJ Rocca7/26/15
In 1973, the Supreme Court held that abortion was legally the choice of every woman, regardless of her reasons for wanting to have an abortion. Specifically, the Court said that the only balancing argument was whether the abortion took place before or after the fetus had achieved “viability,” i.e., whether the fetus could live outside the womb. The Supreme Court based that decision upon a right of privacy they assumed was in the Constitution even though no such right is spelled out or even hinted at.

I am not a lawyer, thus, I am unbound by complex and tortuous technicalities in the law. I believe that legal technicalities, however impressive they may sound to the layman’s ear, often do nothing more than cloud pure human reason. But I am aware enough of what is so simply said in those documents from which all laws in the United States are drawn and upon which they are supposed to be fundamentally based: the Declaration of Independence, US Constitution, and its amendments in the Bill of Rights are among the least ambiguous and most openly clear documents ever written.

The Declaration of Independence, the first of these documents, states clearly that every human being is is endowed by his Creator with certain unalienable human rights. By use of the term “Creator,” it is implicit that those rights are most certainly not conferred upon us by any government. Governments do not create human beings. Moreover, because the specific identity of our Creator is not enumerated, it does not matter whether we are created by God or Nature or some other as yet unidentified force, those inalienable rights are conferred upon us at the moment of creation. That moment cannot be at birth, because what we have become as human beings by the time of birth has already taken place in the womb. No person can be “created” nine months after conception, because conception is the actual beginning of the creative process. Furthermore, the right of privacy, upon which the Supreme Court based its decision, can only be enjoyed by an already created being.

One might argue that it is sometimes necessary to take human life. It is a social reality that people die for cause. But the reasons must be strong. For example, in cases of capital punishment, it is required by law that a capital case against a defendant be proven beyond reasonable doubt. In case of war, where great numbers of human lives are lost, it is always necessary obtain an act of Congress for approval before prosecuting that war.

No steely reasoning is necessary for abortion. Indeed, the main argument is whether the fetus is a person or merely tissue. This argument is made false in its premise by the very nature of the term “creation”. Perhaps in cases where the child is severely handicapped or will suffer if brought to term, or in cases when the life of the mother is threatened and a choice must be made whether to save the mother or the child, there may be a legitimate argument for abortion. But to declare the arbitrary right to abort an already created human being, without just cause, even by that being’s parent, is absurd and goes contrary to all decent human conscience. In fact, the dis-value of even one human life implies that life is expendable. Its reasoning destroys the foundation upon which a free country is based. Before any life is taken, including the life of a child in the womb, a case ought to be made that it is not merely desirable, but necessary.

That abortion is abhorrent is easily demonstrated by the number of its proponents who say they would personally never have an abortion, but that they support the right of other women to have one. This is clearly a contradiction. If a woman would not choose to have an abortion, it is almost inevitably because it goes against her conscience. It is logical to conclude that abortion is wrong.

The life of the child in the womb is nor the property of the parents. No one owns another person, not even a child’s parents. The mother and father may take part in the act which leads to conception, but they do not actually “create” the baby that develops in the womb. In fact, the parents merely supply the physical means that lead to conception, i.e., an egg and sperm. And because they are the agents, but not the Creators of that life, they do not possess proprietary rights to its use and disposal. And whether one believes in God or not, no human being can create life. It takes a force greater than human force to do that.


FJ Rocca was born the day after Pearl Harbor in the same hometown as Johnny Appleseed. He is a trained classical musician, a published illustrator and a prolific writer of fiction and non-fiction. His website is candiddiscourse.com. • (1004 views)

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FJ Rocca

About FJ Rocca

FJ Rocca was born the day after Pearl Harbor in the same hometown as Johnny Appleseed. He is a trained classical musician, a published illustrator and a prolific writer of fiction and non-fiction. His website is candiddiscourse.com.

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11 Responses to A Legal Argument Can Be Made Against Abortion

  1. Timothy Lane says:

    The notion that our rights come from our Creator (or someone else other than the government) also appears, at least by implication, in the Bill of Rights. Note that the various amendments do not grant rights, but ordain that certain rights may not be abridged. The rights themselves are pre-existing. This is very obvious in the first 2 amendments.

    • Brad Nelson Brad Nelson says:

      The notion that our rights come from our Creator (or someone else other than the government) also appears, at least by implication, in the Bill of Rights.

      A Leftist/Progressive/secular critique of that would go something like this:

      All “rights” are simply declarations of consensus…which can change over time, thus we no longer stone adulterers. “God” or a “Creator” is just layered over the top for a bit of mystical prestige, for humans do not like to have their behaviors curtailed by other people, but can and will curtail it according to a source higher than just your jealous and conniving neighbor.

      A decidedly socialist/Leftist conception of “rights” (completely consistent with that supposed great American, FDR) would go something like this:

      The so-called “negative” rights (what government can’t do to you) have grown obsolete, or at least incomplete, as times have changed. We are now in need of “positive” rights (what government should do for you). The aim is economic equality and economic security. “People who are hungry and out of a job are the stuff of which dictatorships are made.” (FDR)

      For those with a finely-tuned ear, you’ll note that the FDR quote is completely consistent with the materialist view of mankind (aka “social justice”) whereby he is the passive product of economic forces beyond himself and is powerless over his life. The locus of control is the state, not the individual.

      Now, of course, any numbskull recognizes that it is always the case that mankind is, in part, somewhat a passive player in the scheme of forces larger than himself. But America was founded specifically on the idea of minimizing that Behemoth, whether we call it Big Government, a Ruling Class, a Monarchy, or whatever. That was the whole point to carving out completely color-blind natural rights (which, of course, we at least partially, if not fully, fleshed out before the Declaration, Constitution, or Bill of Rights).

      Now we see the true force behind the supposed fracturing of society into the “haves” and the “have nots.” When we made the aim of government to try to guarantee similar economic outcomes in the name of either “security” or “social justice,” we threw out the door the entire idea of man being free to make his own way, and especially the idea that he *ought* to. And this thus made morals, ethics, behaviors, perseverance, good character, a good education, etc., extremely important.

      But when the do-gooders declared the goal of economic equality, he has said that man is no longer his own guiding light. He shall end up where government says he should, and will, of course, have whatever “rights” government bestows upon him in order to enact these social outcomes. So we reward moocherism, punish productivity, ingrain crony capitalism, and create a ruling political class and wonder that things are getting out of balance.

      And anyone who is at all nostalgic over FDR has missed the huge role he played in dumbing-down this nation and driving it onto the path of socialism, bad ethics, and Big Government.

      What is it we are saying when we say that one has a “right” to a living wage, a “right” to a decent home, a “right” to adequate medical care, a “right” to a good education, a “right” to a retirement plan, a “right” to “earn enough to provide adequate food and clothing and recreation”? All of this is a recipe for government to intrude into your life and pick winners and losers. Anyone should be aghast at the absurdity of government (FDR, in particular) trying to guarantee to everyone adequate recreation. To where, Barbados? Hawaii? A five-month tour of the Mediterranean every two years?

      We see the poison enter our republic as politicians (especially using the natural sympathies of women) aim to give us all security and “free stuff.” Moocherism was unleashed, and we enabled politicians an unending resource and means to manipulate us.

      And all this is a way to say that there are practical implications when the conception is that our “rights” come from government rather than being something implicit in the nature of things, in reality — however one wants to understand how that reality came to be. And one would have to be a moral midget (there are plenty of those about) to not understand that legalizing abortion means legalizing the disposal of people for other reasons as well. Without a hard idea of inalienable rights, we have no leg to stand on when the Secret Police (or the “nice” environmental nazis) come to your door to do what such people will always do.

      Does one have to prove a Creator in order to have inalienable rights? How does one ground these right outside of mere consensus, even if that consensus has the gloss of time and tradition?

      I don’t have an answer to that. But what we do know is that those who wish to make mischief in this country wish to undermine any sense of the ultimate and to endow in Progressive government the power to define winners and losers…and ultimately who will live and who will not. The Beast was unleashed by FDR (and those before him). Those who have a long-standing grudge against FDR and the Democrat Party are right to do so.

      • Timothy Lane says:

        This demonstrates the crucial difference between negative and positive rights. Negative rights simply limit what others can do to you (such as not having the right to beat you up). Positive rights impose a requirement on someone to provide the assistance you supposedly have a right to receive.

        • Brad Nelson Brad Nelson says:

          Yes, and the “positive right” helps to usher in the corruption of language, and thus of thought — Orwellianism. The reality of a “positive right” is that someone down the street has to work a little harder or longer (or just take home less) so that you can have some of his income. Few of us would go, hat in hand, to our neighbors and demand that they give us some of their income because we thought we deserved it. But when spun through the corrupting sanctification of government, that happens all the time. And we have become a corrupt and Orwellian society because of it.

          Just as monstrously, it has corrupted the entire idea of charity, and thus Christianity itself — once a backbone of a righteous (although always imperfect) nation — has become part of the problem in most places. It is not “charity” when the force of law is used to take wealth from one to give to another, no matter how often and how loud one calls this “social justice.”

          • Timothy Lane says:

            I’ve often noted that welfare consists of a cross between going from neighbor to neighbor saying “I need help, please give it to me” — and pulling a gun and saying, “I need help, so you’d better give it to me.” In effect, the welfare recipient begs help from the government, which orders others to provide it.

            • Brad Nelson Brad Nelson says:

              The welfare state conflates “deserve” with “earn.” I frankly get tired of all those who say that Social Security, for instance, was instituted in order to make sure the elderly were not destitute. Such a goal would be a reasonably worthy one. And if the goal really was actual, not political, there are rational and good ways to do that.

              First, you invest the (confiscated) money and let it accumulate interest rather than having it be a tax, as it is now, robbing from Peter to pay pual. Second, you means test it. You very carefully limit it to truly hardcore cases.

              What we have now are healthy 23-year-olds making a middle-class income off of phony injuries. The reality is so bizarre that it shows that the intent was never keeping the elderly from being destitute. It was hooking society on government, on socialism. This required (and still requires) breaking the bonds of family, church, (now gender), good character, and truth itself.

              Can a society make allowances for the indigent, for those who need help, and do so in a way that doesn’t reward moocherism and punish industry? Yes, but only at the private level. When government tries to do this, it can’t help politicizing it.

              So does anyone wonder why we are so in debt? Blame the corruption of socialism and the people who were willingly corrupted. This same corruption infects every issue laid on the table before us, including life itself. Yes, abortion is an issue unto its own. But the monstrous sloganeering by the pro-death faction must be seen in the context of a corrupt society that has lost faith with itself, let alone future generations.

              • Timothy Lane says:

                This has been a concern for a long time. FDR supposedly was concerned about it, and Tom Dewey expressed concerns in the mid-1940s. LBJ seems to have chosen to ignore the danger, but it was already a problem before then. He just made it a lot worse.

  2. Brad Nelson Brad Nelson says:

    Frank, I think you ended with your most powerful argument, although I don’t know if it’s a legal one, per se:

    The life of the child in the womb is nor the property of the parents. No one owns another person, not even a child’s parents. The mother and father may take part in the act which leads to conception, but they do not actually “create” the baby that develops in the womb. In fact, the parents merely supply the physical means that lead to conception, i.e., an egg and sperm. And because they are the agents, but not the Creators of that life, they do not possess proprietary rights to its use and disposal.

    I think it would help to understand why so many are for abortion.

    The freest man is the one bound by no moral or legal constraints. He can rut like a dog in heat and leave litters where he may. This is the Leftist and libertarian code. No moral or legal constraints, at least regarding sex. To have such constraints would be an oppressive use of government. Worse yet, it would be the intrusion of “religion” into government.

    Why such obvious rationalizations? Because people really do like to rut like a dog in heat, and they wish to do so without any responsibility. One can make are argument for or against such an idea, but rarely is this idea stated clearly. It is intentionally obfuscated by such baloney as “women’s health,” “a women’s right to choose,” or “keep your rosaries off my ovaries.” But the real issue is that people want to rut like a dog and do so without any responsibility.

    This means, technically, there isn’t a legal fix, per se. Oh, I’m for making abortion illegal. You bet. In a heartbeat. But abortion is legal, in large part, because people really do like to rut like a dog and to do so with responsibility. Humans, being among nature’s best and most creative liars, have become very good at covering up this naked truth with a bunch of window-dressing words and slogans.

    But, yeah, legally, you do touch on the crucial point: An unborn child is a life unto itself. It is not just a “blob of tissue.” And in the American conception of liberty and natural rights, all rights flow through this first and most basic one: the right to our own life. And if this is chipped away at, none of the others are safe, as we see happening all around us.

    Yes, let’s make a legal argument. But the moral one is just as important, if not more so. And (please, do raise your hand if anyone knows otherwise), when is the last time anyone has heard their pastor speak up against abortion? Surely some of you have. But abortion has become an accepted thing because to speak out against it has been conveniently (by the moral cowards, which includes legions of pastors and priests) defined as “inserting politics into sermons.”

    And, frankly, feminism is so infused in our society now, it is quite likely to offend most women if you point out to them that it is not just a “blob of tissue” they are discarding when they deal with the consequences of the morning after.

  3. SkepticalCynic SkepticalCynic says:

    Mr. Rocca, you may be in some way correct in that you think I didn’t own my children. But here is an unwritten law you missed. Those children that I didn’t/don’t “own” but were MINE in ten thousand ways, would get someone killed messing with them. That even applies today, even as one approaches fifty and the other forty-five. I might have hesitated for a microsecond when they were young and would lose their daddy but I am an old buzzard now. I would not hesitate to kill over my grown kids and you can include my grandchildren, as well. If a person wants to kill their offspring that is basically none of my business but don’t even think of harming one of mine!

    • Kung Fu Zu Kung Fu Zu says:

      If a person wants to kill their offspring that is basically none of my business

      At point does it become your business?

      • Brad Nelson Brad Nelson says:

        I was wondering is Cynic was a libertarian. That sounds like the kind of thing a libertarian would say.

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