Asher thinks that laws against abortion “intrude into private life.” He doesn’t seem to understand that some such intrusions are legitimate. If he abuses or kills his own children he will have to answer to the state, and rightly so. That is a legitimate intrusion into his private family life. Conservatives, and some libertarians, maintain that there is no difference that makes a moral difference between killing born and unborn children. If one of the legitimate functions of the state is to protect life, and it is, then that includes all human life.
In the matter of the so-called privacy right, I turn first to the late Justice Hugo L. Black, a man renowned for his defense of individual rights. This is from his dissent in Griswold v. Connecticut:
The Court talks about a constitutional “right of privacy” as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the “privacy” of individuals. But there is not. There are, of course, guarantees in certain specific constitutional provisions which are designed in part to protect privacy at certain times and places with respect to certain activities. Such, for example, is the Fourth Amendment’s guarantee against “unreasonable searches and seizures.” But I think it belittles that Amendment to talk about it as though it protects nothing but “privacy.” To treat it that way is to give it a niggardly interpretation, not the kind of liberal reading I think any Bill of Rights provision should be given. The average man would very likely not have his feelings soothed any more by having his property seized openly than by having it seized privately and by stealth. He simply wants his property left alone.
To put it more bluntly, as I do in “Privacy: Variations on the Theme of Liberty,”
if privacy were an absolute right, it would be possible to get away with murder in one’s home simply by committing murder there. In fact, if there are any absolute rights, privacy certainly isn’t one of them.
Further to the point (from “Law, Liberty, and Abortion“):
It is … unsurprising that the majority in Roe v. Wade could not decide whether the general privacy right is located in the Ninth Amendment or the Fourteenth Amendment. Neither amendment, of course, is the locus of a general privacy right because none is conferred by the Constitution, nor could the Constitution ever confer such a right, for it would interfere with such truly compelling state interests as the pursuit of justice. The majority simply chose to ignore that unspeakable consequence by conjuring a general right to privacy for the limited purpose of ratifying abortion.
The spuriousness of the majority’s conclusion is evident in its flinching from the logical end of its reasoning: abortion anywhere at anytime. Instead, the majority delivered this:
The privacy right involved, therefore, cannot be said to be absolute. . . . 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.
That is, the majority simply drew an arbitrary line between life and death — but in the wrong place. It is as if the majority understood, but wished not to acknowledged, the full implications of a general right to privacy. Such a general right could be deployed by unprincipled judges to decriminalize a variety of heinous acts.
What about the morality of abortion? Once again, I am uncannily in agreement with MP. This is from one of my early posts, “I’ve Changed My Mind“:
I can no longer condone the legality of abortion. For one thing, legal abortion is a step on the path to legal euthanasia. But legal abortion stands by itself as a crime against humanity….
Once life begins it is sophistry to say that abortion doesn’t amount to the taking of an innocent life. It is also sophistry to argue that abortion is “acceptable” until such-and-such a stage of fetal development. There is no clear dividing line between the onset of life and the onset of human-ness. They are indivisible.
The state shouldn’t be in the business of authorizing the deaths of innocent humans. The state should be in the business of protecting the lives of innocent humans — from conception to grave.
When I wrote that, more than seven years ago, I considered myself a libertarian. Subsequent reflection about libertarianism and its shortcomings led me to reject mainstream libertarianism because it is inimical to liberty, for reasons I spell out in many of the posts linked below. My rejection began with the issue of abortion, and it spread.
I am, in fact, a conservative, though I prefer the more accurate designation of Burkean libertarian. Thoroughgoing libertarianism is impossible in a world of flesh-and-blood social beings whose relationships are not merely calculated and transactional — or cold-blooded, like abortion.
Related posts (abortion and privacy):
I’ve Changed My Mind
Next Stop, Legal Genocide?
It Can Happen Here: Eugenics, Abortion, Euthanasia, and Mental Screening
PETA, NARAL, and Roe v. Wade
Notes on the State of Liberty in American Law
The Consequences of Roe v. Wade
The Old Eugenics in a New Guise
The Left, Abortion, and Adolescence
Law, Liberty, and Abortion
Oh, *That* Slippery Slope
Abortion and the Slippery Slope
The Cynics Debate While Babies Die
Privacy, Autonomy, and Responsibility
Oh, *That* Privacy Right
Peter Singer’s Agenda
The Slippery Slope in Holland
The Slippery Slope in England
The Slippery Slope in New Jersey
An Argument Against Abortion
The Case against Genetic Engineering
Singer Said It
Privacy: Variations on the Theme of Liberty
A “Person” or a “Life”?
How Much Jail Time?
A Wrong-Headed Take on Abortion
Crimes against Humanity
Abortion and Logic
Related posts (libertarianism):
What Is Conservatism?
Utilitarianism, “Liberalism,” and Omniscience
Utilitarianism vs. Liberty
The Indivisibility of Economic and Social Liberty
Law and Liberty
Negative Rights, Social Norms, and the Constitution
Rights, Liberty, the Golden Rule, and the Legitimate State
Accountants of the Soul
“Natural Rights” and Consequentialism
Rawls Meets Bentham
More about Consequentialism
Line-Drawing and Liberty
Pseudo-Libertarian Sophistry vs. True Libertarianism
Positivism, “Natural Rights,” and Libertarianism
What Are “Natural Rights”?
The Golden Rule and the State
Libertarian Conservative or Conservative Libertarian?
Liberty, Equality, Fraternity: Part I
Bounded Liberty: A Thought Experiment
Evolution, Human Nature, and “Natural Rights”
More about Conservative Governance
The Meaning of Liberty
Positive Liberty vs. Liberty
More Social Justice
On Self-Ownership and Desert
The Golden Rule as Beneficial Learning
Why I Am Not an Extreme Libertarian
Facets of Liberty
Rights: Source, Applicability, How Held
What Is Libertarianism?
True Libertarianism, One More Time