An Equal Protection Argument Against Abortion

And interestingly enough, it becomes an argument for why we have to get the courts out of the abortion business.

(This isn't going to become The Abortion Blog, I promise. I just have been thinking about it a lot recently. At some point we will switch back to pictures of puppies playing with jello. )

Musing about the guy who's suing for the right to terminate his own fatherhood of a child on the grounds that he didn't want it and didn't get an abortion, I wonder if there is a 14th amendment case against abortion, on the following lines:

Once a child is born, both a man and a woman share financial and custodial responsibility for the child. They each have general duties toward the child under the law. This is just and equitable, as far as I know. (Where there are individual exceptional cases, ("that crazy judge gave him full custody!") they are in violation of the basic principles, in the absence of extraordinary circumstances.)

However, women have a power that is not granted to men: the power to abort the child. This is specific, unique to women; it can't be transferred. Unlike financial responsibility, this existential responsibility is assigned, by nature and the state, to one gender only.

It is not the state's place to rule on what nature may or may not do. However, there is no need for the state's action in the matter to conform to that set of facts. To be treated equally under the terms of 14th Amendment, which do not (so far as I am aware) make an exception for cases where only one group can exercise a right, it would seem that the state should bar both sexes from procuring the abortion of a jointly-conceived fetus, or allow both to procure unilaterally.

The latter option is ethically appalling. To grant men the arbitrary power to unilaterally decree an abortion, even in the case of a woman who greatly desired a pregnancy, would be monstrous beyond measure. No man was born to wear that crown of power over a woman, save One, and he is a gentle Lord.

The former seems to genuinely preclude the right of any woman to get an abortion. While in many cases it is likely that this would be an increase in justice, rather than a decrease, the fact that remains for some irreducible portion of pregnancies, such as cases of medical necessity or dire and unrelievable circumstances for the mother, an abortion is the morally right course of action. To deny those abortions is monstrous in and of itself. The measure of harm is, in my personal feeling, less than that imposed in the case of allowing male dictation of abortion. However, it still well exceeds the amount of injustice that can be tolerated under a humane regime of law.

It would seem, therefore, that some kind of compromise is in order. Perfect (i.e., strictly Constitutional) justice cannot be effectively delivered. However, some solution must be reached.

And here I suggest that the appropriate remedy on the part of the judicial system is: withdraw. Remove this element of our national, and personal, lives by making it a political issue instead of a legal issue.

The political system will come up with a messy, patchwork system - or more likely, set of systems. It will evolve in accordance with the efforts and desires of the people in the many communities and governmental entities that make up our society. There will undoubtedly be abuses and excesses; political systems eat efficiency and excrete corruption. But that's often a better thing than rulings by judges. You can't move out from an order of the Supreme Court. But you can leave New York for Utah, if that's what suits you. Or from Nebraska to Nevada, if that's your preference. If states and even towns are setting their own policies, then Americans for whom the issues are important can do the Burkean self-sorting which is the peculiar genius of our political and social culture.