Roe & Privacy

Tibor R. Machan

One reason that Roe v. Wade is still with us is that legal scholars and jurists are arguing about the wrong issue. The question isn’t whether the US Constitution contains any reference to a right to privacy. Let’s assume it does. Let’s assume that the Ninth Amendment, as argued in Griswold v. Connecticut and some other cases, implicitly refers to the right to privacy every human beings has. Why would this be relevant?

Some might argue that if one has the right to privacy, a woman who has an abortion is doing something private, something no one else has the authority to regulate or ban. But this simply will not do.

If a pregnant woman is carrying a child—as pro-life folks call it, “an unborn child”—she has no authority to have a procedure that will kill this child. Wherever one locates a human being, inside the pregnant woman or in a crib or at some hotel, unless he has threatened to attack someone, no one is justified killing him. Only self-defense justifies killing another human being, period. (I leave aside the death penalty for now—some argue that it, too, is simply the extension of self-defense, though I doubt this.)

But one might say, the pregnant woman’s womb is certainly as private a place as you can find. Well, yes, provided it hasn’t been made the home of this “unborn baby.” If the “unborn baby” is indeed a new, budding human being from the moment of conception or thereabouts, the pregnant woman’s womb is not private any longer. The body is now being shared—some of it is occupied by this new human being, some by the woman’s insides.

Privacy, then, is really quite irrelevant to the debate surrounding Roe v. Wade. The relevant question to be answered is, “Is the being to be killed in an abortion a human being or is it human only potentially?” If the former, then abortions are killings, unless they amount to self-defense—say the “unborn baby” poses a fatal hazard to the pregnant woman. And such killings are a form of murder—infanticide.

But if in the early stages of pregnancy the woman is carrying a potential human being, then abortions performed in those stages are not infanticide because they are not homicide. They do not amount to the unjustified killing of a human being.

The debate here is not unlike that about the very sick and incapacitated at the end of life. Without a brain that can function as those of normal human beings do—without its capacity to think, to have ideas, to imagine, to envision and so forth which human beings as such are distinctive for in the living world—arguably no human being exists any longer. So removing life supports and similar acts that terminate life do not constitute homicide.

Exactly when that point comes about is where the debate needs to focus in the end-of-life discussion, while when a human being comes into existence is the point that needs to be debated in the abortion issue.

Maybe the following rough analogy will help here: If you invite someone into your home for dinner, you are not authorized to kill him. Doing so, unless he attacks you, would be murder. Sure, your home is your private sphere but you invited the guest, he didn’t break in and threaten your life. So you do not get to kill him, never mind your right to privacy. If, however, you bring home something that could, in time, become a human being but you don’t wait and annihilate it, you haven’t killed anyone. And none of this has anything to do with whether your home is within your private sphere.

Of course, discussing abortion in terms of when a human life comes into existence raises very tough issues—What is it to be a human being? What attributes or faculties or capacities must something possess to be such a being? Is it human at the beginning of its life or at some later point when certain faculties have emerged? Is there anything like a precise enough point during pregnancy that this occurs? Could it be conception, at which point no single entity exists that will become the baby but several might? Could it be when the cerebral cortex develops where thinking is made possible?

But at the edges of the law there will always be difficulties. Who is an adult? Who is still a child or juvenile? Similar ones can be found throughout human affairs.

Still, to pretend that the issue isn’t about when human beings comes into being but about the right to privacy is to confuse matters and postpone a reasonable solution.