‘Pursuit of happiness’ undermined by court’s abortion ruling
All Americans know, or should know by now, that the Founding Fathers identified three inalienable rights, rights that could neither be taken away nor given away. Two of those rights appear in the 14th Amendment: the right to life and the right to liberty, which can be limited or even taken away but only by due process. They added a third right which is understood as property ownership that could be taken away, again only by due process.
However, they pointedly omitted any reference to the pursuit of happiness. The absence of a due process procedure applicable to the pursuit of happiness should inform us that the Founders could not envision any situation in which the state could interfere with that right.
Therefore, we need to know what was meant by the phrase “pursuit of happiness.” The easiest way to understand its meaning is to describe it as “that which fulfills an individual so long as it does not adversely affect another person or society in general.” The important question that follows is: “Does abortion adversely affect another person or society in general?”
The answer with respect to society is no. Society as well as individual members of society benefit by the absence of unwanted children (as well as the presence of contraceptives). The only way to conclude that the state can acquire a right to interfere in birth decisions is to define the pre-born as persons, that is to assert that we know the moment at which life begins.
Philosophers have been debating that point for millennia without a definitive answer. The continuum of their thoughts has run the gamut from the moment of conception to the first breath as when God breathed life into Adam.
There is no rational basis for conferring personhood on a zygote or an unviable fetus. That is a religious or philosophical opinion and should have no basis in law. Democracies must be able to differentiate between that which may be a sin in the eyes of some and that which is a crime visible to all, especially in a country that professes separation of church and state.
If the law recognizes the pre-born as persons, then abortion is murder and should be treated as such with commensurate penalties. That is unacceptable to all but the most rabid anti-abortion activists. Better they should follow their own religious beliefs and leave others to theirs.
The U.S. Supreme Court has decided that it had no basis upon which to make a decision concerning when and under what circumstances a woman could choose to terminate her own pregnancy. Instead they placed that responsibility in the hands of elected politicians representing people in the various states, thus creating a multitude of answers to an unanswerable question.
The court could not have been more wrong. If the Founders could give the state the right to take away one’s life or liberty, then they easily could have given the state the ability to take away the right to pursue happiness. But they did not.
Roe v. Wade and Planned Parenthood v. Casey viewed abortion as an individual decision up until a fetus became able to survive on its own. That is until such time as the developing fetus could assert itself as a separate entity. That position does not satisfy everyone but it has the advantage of establishing a meaningful standard, a bright line that everyone can visualize. It is both pro-choice and anti-abortion.
It is now up to the federal government to pass legislation supported by an interpretation of the 14th Amendment that adopts the standard that the court’s conservative majority could not bring itself to accept.