Why Choice Is Not Absolute: A Rebuttal

My colleague Owen has written an interesting response to my article about the problem of abortion absolutism. I argue that abortion, if it’s a right, ought to have reasonable limits. In the article, I argue that many liberals believe that abortion rights trump other rights like religious liberty and the equal rights of both sexes. Owen’s response, similarly to my last article, is multifaceted. So I’ll respond to the various points of Owen’s response in a piecemeal fashion.

Owen starts his argument by writing that the right to choose to have an abortion, contrary to my argument, is an absolute right. Here’s Owen:

Precedent (Roe v. Wade) dictates that this is a constitutional right of women. The right to choice has already been deemed absolute…

And here he quotes me and responds:

“Indeed, in the pro-choice frame of mind, there appears to be no real limitation that can ever be imposed on the right to choose.”
Yes. The Supreme Court said so. You cannot cherry pick which decisions you like because they bolster your own position.

But both liberals and conservatives do exactly that all of the time with Supreme Court rulings. Virtually no one believes that the Supreme Court is infallible. For example, presumably Owen would probably (and correctly) disagree with the Court’s decision in Plessy v. Ferguson (which the Court itself overturned later in Brown v. The Board of Education). Owen’s argument above is essentially that the right to choose is absolute because “the Supreme Court said so.” But as Plessy shows, the Court has gotten things egregiously wrong before.

Additionally, Roe v. Wade, which Owen cites for abortion absolutism doesn’t uphold an absolute right. Justice Blackmun, who wrote the majority opinion said that it isn’t:

We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.

And:

With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb…If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.

Abortion rights aren’t absolute even according to the ruling that “legalized” it. (I would submit that fetuses are persons who should be protected under the Fourteenth Amendment, but that’s for another article.)

Owen’s next point is that the case that I cite to demonstrate liberals’ belief in abortion rights over religious liberty, Little Sisters of the Poor v. Burwell, has nothing to do with abortion, but deals with contraception. The HHS mandate that the sisters were challenging required that the sisters provide health insurance plans that cover contraceptive drugs (which violate their religious consciences) including Plan B pills that some medical professionals believe are abortion-inducing. So the case isn’t irrelevant in talking about abortion absolutism. There is debate as to whether they are abortifacient drugs, however. So Owen may have a point here, but it’s debatable. If Plan B pills aren’t abortifacient, then Owen is correct that this case isn’t one of abortion absolutism and the Little Sisters case wouldn’t support my thesis. I would admittedly be wrong to use that example. But my claim that many pro-choicers hold abortion rights over religious liberty isn’t wrong. For a more explicit example, see the ACLU’s attempt to compel Catholic hospitals to perform abortions, despite their conscience rights.

Owen then asserts that Whole Woman’s Heal v. Hellerstedt, another case that I used to demonstrate abortion absolutism, had nothing to do with women’s health but with ruling in favor of abortion against onerous health standards. The ruling struck down tough standards for abortion clinics that many of them couldn’t meet, causing many of them to close. But the fact that clinics couldn’t meet standards of other ambulatory surgical centers doesn’t mean that the rules were unconstitutional because they may have reduced abortions. The standards were implemented in response to Kermit Gosnell’s case in Philadelphia. Some clinics in Texas, including Whole Woman’s Health, have been reprimanded for not having nurses, illegally dumping medical waste, and having rusty equipment. So higher standards aren’t crazy.

Owen doesn’t wrestle much with my last example of abortion absolutism and its problems: a ruling that struck down bans on sex-selective abortions. He simply says, “for whatever reason an abortion is performed it is solely between the woman and her healthcare provider.” So that includes reasons that discriminate based on sex? The right to choose includes terminating an unborn life because it may be a girl? That’s the exact problem with abortion absolutism: at what point does the right to choose give way to other rights (like a girl’s right to not be killed because of her sex)?

I agree with Owen’s last point that abortion might be curbed by better sex education and that abortion isn’t an easy choice. I believe that most women who are seeking abortions deserve empathy, compassion, and even government assistance. But he goes on to say that we should not stigmatize a “healthcare decision.” I dispute that a procedure that tears an unborn child limb from limb is “healthcare.” I suppose that that’s the heart of this debate. And if Owen wants, we can debate that issue in more depth. Until then my point remains: abortion absolutism is a threat to religious liberty, to equality of sexes, and women’s health.