Thursday, November 10, 2011

All women don't have a constitutional right to abortion, but rape victims do

    Amid all the recent debate on Prop 26, it's worth noting that many of the supporters of this amendment did maintain that the use of contraception such as IUDs and "morning-after" birth control pills was equivalent to murder because it caused an embryo, or person, to be unable to attach to the uterine wall.
    I disagree, but I'll leave this alone for now to note that a large portion of those who are opposed to abortion believe it should be illegal in the case of rape. These people have no problem with forcing a rape victim to bear her attacker's child.
    It's barbaric. And while I've long maintained that I don't believe there is a Ninth Amendment Constitutional right to abortion on demand, I do believe there is a 13th Amendment right to abortion in cases where a woman is raped or unable to give consent.
    What's the difference? The difference is that our laws -- our reservoir or public morality -- traditionally don't recognize a right of rescue unless one's own actions have made that rescue necessary.
    For example, suppose that I am alone on a lake in my anchored ski boat, and one other person is also in the lake in a small fishing boat. Suppose that person capsizes and begins yelling for help. Am I legally obligated to assist that person? The answer is no, I have no duty to random strangers in need of help.
    Now let us supposed that I zip past a a fishing boat in my ski boat and cause it to capsize. Do I now have a duty? The answer is yes, my voluntary actions have endangered the life of another and I now have a duty to rescue that person. A failure to act is manslaughter.
    As a practical matter, most people will attempt to rescue others in need. But the common law recognizes that it may not compel people to essentially be slaves to the needs of others. A dollar a day may be enough to save the life of some starving Third World child, but the law does not compel me to mail a check each month.
    When women get pregnant, it is ordinarily the result of voluntary action. A strong argument can be made against abortion on the grounds that a woman's voluntary action has caused her unborn child to be in need of rescue, and now she has a duty to rescue that child by carrying to term.
    When women get pregnant from rape there is no voluntary action to create a duty to the unborn child. As such there is no legal duty to rescue and the woman has every right to separate herself from this unwanted person, just as we all have the right to refuse to send a dollar a day to feed starving children.
    Forcing a rape victim or a woman who has not given legal consent to intercourse to carry a child to term violates the 13th Amendment prohibition of involuntary servitude. Even if we accept that life begins at conception, when a rape victim gets an abortion it's not murder, it's self defense.
    There's nothing wrong with forcing someone to involuntarily serve another if that person's voluntary actions have made that service necessary. But to force an innocent rape victim to bear the child of another is slavery.
    I've long opposed Roe v. Wade. It was a terrible, poorly reasoned court decision that simply fabricated a constitutional right. I believe states have the right, should they exercise it, to ban abortions in cases where voluntary actions result in pregnancy. That doesn't mean I'm opposed to abortion; it means I'm in favor of state sovereignty, even when my state or other states may pass laws with which I don't agree.
    But state sovereignty doesn't extend to permitting slavery or involuntary servitude. As such women who don't consent to sexual intercourse have an absolute 13th Amendment right to abortion. They may choose not to exercise it, but it must be their choice, not that of society.

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