The Solution to the Abortion Debate

As science advances you will see that this will be the argument/policy that ultimately ends abortion.

A baby, fetus, node, whatever you want to call it, is alive after conception. All of science in every other field defines life and alive that way. Thus if it is alive, then what is it? Is it a plant, a dog, a an alien? No, it is a human, and can only grow to become a human, nothing else. Eventually as science and medicine can allow the human baby to survive earlier and earlier- probably up to the point of conception- then we will all agree that "life" begins at conception. However until then, congress could define life. So how does that solve the abortion debate?

First, right now of course the legal debate is mostly about whether a mother has a fundamental right to choose to kill the thing growing inside her. That is what Roe vs Wade was about and then PP v. Casey said that based on the allocation of burden on the mother, at some point during the pregnancy (when there is no undue burden on the mother) abortion can be prohibited. Ok, for the sake of this argument, lets say that that always stays the same, Casey and Roe are never overturned. So we assume there is a fundamental right at stake for the mother.

Next, and this is the cornerstone, if we legislatively define life as beginning at conception, then the courts cannot change that. The courts can only interpret the law, they do not make changes to clear law. Thus if there is a life at stake, then the due process clause is implicated. Under the 5th amendment the federal government, nor the states (via incorporation) can deprive a person of life without due process of law. Of course the due process clause only applies to government action, however this would mean that before any government deprivation of the babies life it would be entitled to a due process hearng. Thus any legislation that approves of, funds or provides for abortions would equally have to provide such a pre-deprivation hearing. Furthermore, any laws that seek to protect that life would have the additional weight of protecting the same sort of fundamental right that abortionists seek to protect. This would effectivly rebalance the test used in Roe v. Wade.

For instance, in such a hearing, we would have two competing fundamental rights at stake, the mothers fundamental right to abortion, and the babies fundamental (5th amendment due process) right to life. The process, procedure and rules for that hearing would have to be provided for by law so the government would be hard pressed to pass the strict scrutiny test in providing abortions, yet they would pass the strict scrutiny test for prohibiting them.

How? Under substantive due process and Roe v. Wade jurisprudence, the deprivation of a fundamental right by legislation must pass the strict scrutiny test. This means in essence that the legislation must serve a compelling governmental interest, be narrowly tailored, and have no less burdensome alternatives available to serve that compelling interest. Well, protecting another fundamental right of another human being would be a compelling interest. Abortion rights activists could argue the same about the abortion right. However is the law narrowly tailored? Well if the law is designed to preserve the babies life (in the absence of the mothers life being at risk) - then the law could certainly be narrowly tailored. However is a law providing for the protection of the mothers right to make her "medical decision"? Well that's arguable but we'll say it parallels the reverse argument. And last, are there any less burdensome ways to prevent the mother from paying someone to kill the baby than forbidding it to happen? I don't know of any. However, there certainly less burdonsome ways to protect the mothers interest in her medical decision etc. than to kill the baby. So the last element would kill any legislation that allowed for or provided abortions.

So laws that prohibit abortion at all ages of the baby would be valid under the US Constitution And laws that allow or fund abortions would not be valid under the US Constitution. If and when we simply acknowledge and define life like science does in other fields.

Any comments? Any loopholes you see?