Abortion Analogies


October 27, 1991|By RAY JENKINS

For quite some time, the more militant opponents of abortion have maintained that the 1973 Supreme Court decision in Roe vs. Wade, which legalized abortion, is the modern equivalent of the Dred Scott decision of 1857, which held that Negro slaves were not human beings but rather property of whites.

It is an ominous analogy, because the Dred Scott case was the catalyst that brought on the Civil War within four years.

But you have to concede that from their perspective, the anti-abortionists' argument makes perfect sense. If you truly believe that a conceived child is a human being in every sense, then killing that human being could hardly be less odious than enslaving a human being. And, it follows, any measure necessary to stop the killing would be justified -- even civil war.

For those who do not believe that a fertilized ovum is instantly a human being, the struggle over abortion becomes more analogous to prohibition of alcoholic beverages in the 1920s. They see it as the legal imposition of one's particular moral code on everyone, even those whose code may be quite different.

Prohibition was imposed in 1920 with adoption of the 18th Amendment to the Constitution during a time of xenophobia, Negrophobia and rampant religious intolerance. During that time the manufacture and sale of alcoholic beverages was illegal throughout the country -- and bootlegging was widespread.

If the militant anti-abortionists had their way they would not only overturn Roe vs. Wade but would write into the Constitution a new amendment prohibiting abortion under virtually all circumstances. It would be the modern equivalent of the 13th Amendment, which bans slavery. Not even abortion of pregnancies resulting from rape or incest would be permitted. From their standpoint -- and again, there is a consistency in their logic -- aborting a child conceived in rape would be morally indistinguishable from killing a rapist's living children for the crimes of the father.

Some committed anti-abortionists would even argue that such an amendment is not even needed. They maintain that the Fifth and 14th Amendments to the Constitution already prohibit abortion by protecting the life of "persons." In fact the new Supreme Court justice, Clarence Thomas, once indicated a sympathy for that point of view, although he quickly retreated from it at his confirmation hearings. It is not likely that even the activist Rehnquist court would take such a far-reaching step.

If such a prohibition should be written into the Constitution, either by amendment or by judicial interpretation, abortion would be banned throughout the country -- no ifs, ands or buts. $H Permissive state laws such as Maryland's newly enacted one would be unconstitutional. It would be Prohibition all over again, and the illegal abortion would no doubt flourish just as bootleg liquor did while the 18th Amendment was in effect from 1920 to 1933.

Simply overruling Roe vs. Wade would, in practical terms, have the same effect as repealing the Prohibition Amendment in 1933, by throwing to the states the question of how much or how little abortion to permit. After repeal of Prohibition, some states elected to remain completely "dry" (even though Mississippi charged a sales tax on bootleg whiskey), while many others regulated liquor sales in varying degrees.

Similarly, if Roe vs. Wade were repealed, some states no doubt would prohibit abortion under all circumstances, while others would permit it in varying degrees from the highly restrictive to DTC the very liberal. Such a patchwork of laws no doubt would create a brisk interstate business in abortion. For instance, women in Pennsylvania, which recently adopted a restrictive abortion law, would get their abortions in Maryland, which recently adopted a state law which in effect codifies the right of choice under Roe vs. Wade.

Prohibition of alcohol was repealed after 12 years because a majority of the people came to believe that it just didn't work, that in the end the decision to drink or not to drink had to be left to personal choice. Public opinion polls today suggest that an increasing number of Americans have tacitly reached this same conclusion with regard to abortion. The emerging view seems to be that no matter what one's own view of abortion may be, the decision in the end must be a matter of personal choice.

After all, what's the alternative? If we accept the Dred Scott analogy, then the alternative could well be another civil war.

Not possible? Well, the recent Operation Rescue tactics in Wichita could be called the equivalent of the Kansas fanatic John Brown's assault on Harper's Ferry out of the belief that he was God's instrument to destroy slavery.

And the street battles in Cincinnati between anti-abortionists and pro-choice advocates might be the equivalent of firing on Fort Sumter.

Ray Jenkins is editor of the editorial pages of The Evening Sun.

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