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4.2.12
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matter of Constitutional law. Politically I have always supported a women’s right to choose
abortion, since I do not regard an early term fetus as a human being for purposes of the abortion
debate. For me the decision to abort is very much a matter of degree and the women carrying the
child should have primary responsibility to make that decision. But as a matter of constitutional
law, I find little basis in either the right of privacy or the right to equal protection that would grant
a women the right to terminate her pregnancy, particularly as the fetus comes closer to viability.
The law must always make arbitrary judgments—an 18 year old may vote but a 17 year old may
not, a 34 year old may not run for president, but a 35 year old can—and the judgment as to when
a fetus becomes a human being in highly arbitrary. Most legal systems establish exit from the
birth canal as the moment of humanity but a 9 month old fetus in the womb is biologically
indistinguishable from a fetus that has just exited the womb. (Indeed when kangaroos exit from
the womb, it is only a temporary condition and the joey returns periodically to the mother’s
external womb for nourishment.) The fetuses is as viable at 9 months as at 9 and a half, but
distinctions must be made by the law.

The question of when life begins is somewhat more arbitrary than the related question of when life
ends. But even the latter question is subject to disagreement as the cases involving “pulling the
plug” demonstrate.

The religious component in the abortion debate is quite pronounced. For a believing Catholic,
and for some Protestants, life begins at conception. If I believed, as some do, that abortion is the
killing of a human being with a soul, I would probably be marching in front of abortion clinics to
stop the murder of innocent babies. The fact that I don’t believe this is largely a matter of my
upbringing, most particularly my religious training. It is not a matter of absolute “truth.” Some
scholars, believe that they can demonstrate, as a matter of philosophical truth, that the Catholic
position is wrong. I think that is the height of arrogance. Nor am I convinced by the faulty
argument, offered by some, that if Catholics really believed that fetuses were human beings, they
would punish abortion by the death penalty and the fact that they don’t proves, under this view,
that they don’t really believe that fetuses are human beings. This argument is preposterous on its
face, for several reasons. First, some religious extremists do believe that abortion should be
punished by death. Indeed, they have killed abortion doctors. Second, some Catholics are
opposed to the death penalty even for murder. Indeed, that is the official position of the Vatican.
Third, one can believe that abortion is murder and yet understand that there may be mitigating
factors.

Following the Supreme Court infamous decision in Bush v. Gore, essentially handing the 2000
Presidential election to George W. Bush, I wrote a book (Supreme Injustice) in which I argued
that “the seeds” of Bush v. Gore “were planted by the campaign to constitutionalize a woman’s
right to choose abortion.”

I argued that the abortion issue is quintessentially political. It involves a clash of ideologies, even
world views. Unlike the issue of equality for gays or state-enforced racial segregation, the
controversy over abortion has no absolute right and wrong, either morally or constitutionally.
Virtually everyone today acknowledges that segregation was both immoral and unconstitutional.
All it took was a strong push by a unanimous Supreme Court to set in motion a process that was
ongoing in most other democracies throughout the world, but that had gotten stuck in the United

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