Assessing Pres. Obama's statement on the anniversary of Roe v. Wade

President Barack Obama issued an official statement on the Jan. 22 anniversary of Roe v. Wade, the 1973 U.S. Supreme Court ruling that (together with companion ruling Doe v. Bolton) struck down the democratically-decided abortion laws of every state and imposed on the entire nation a policy of legal abortion for virtually any reason throughout all of pregnancy. Applauding the decision, Obama emphasized his commitment to "a woman's right to choose" and said abortion is a "fundamental constitutional right."

Women at the 2012 MCCL March for Life,
disagreeing with Pres. Obama

It is revealing that Obama so staunchly supports Roe, a constitutionally indefensible ruling that even legal scholars who support legal abortion (including Obama friend, adviser and member of the administration Cass Sunstein) think was badly decided. As Timothy Carney notes in the Washington Examiner, Obama "either shows a strikingly poor understanding of constitutional law (especially for a Harvard Law grad), or he buys into the dishonesty that pervades the opinion and its defenses." Law professor and legal-abortion advocate Kermit Roosevelt put it well in a 2003 Washington Post column:

You will be hard-pressed to find a constitutional law professor, even among those who support the idea of constitutional protection for the right to choose, who will embrace the [Roe] opinion itself rather than the result.

This is not surprising. As constitutional argument, Roe is barely coherent. The court pulled its fundamental right to choose more or less from the constitutional ether.

In any case, let's consider two claims Obama offers in his short Roe statement, both of which are typical of pro-choice rhetoric. The first is this:

As we mark the 39th anniversary of Roe v. Wade, we must remember that this Supreme Court decision not only protects a woman's health and reproductive freedom, but also affirms a broader principle: that government should not intrude on private family matters.

He uses three key phrases here: "women's health," "reproductive freedom," and "government should not intrude on private family matters." Let me briefly take them one at a time.

First, Roe wasn't about women's health -- it was about legalizing elective abortion. (Laws before Roe allowed abortion to save the life of the mother.) That is what Obama supports. That is the issue in dispute.

Second, "reproductive freedom" is a vague term, but in this case Obama means the freedom to have an abortion, which, as a plain factual matter, is the killing of a member of the species Homo sapiens at the fetal stage of development. Of course, Obama agrees that "freedom" doesn't justify legalizing acts that assault the dignity and rights of other persons, such as intentionally drowning one's toddler in the bath tub. (Obama also opposes "freedom" -- to at least some degree -- with regard to a wide range of issues, including economics, health care, gun ownership, and so on.) The issue, then, is obviously not freedom, but rather whether abortion is or is not the kind of act, like drowning a toddler, that should not be permitted. And this depends, in turn, on whether the being dismembered and killed by abortion counts as someone deserving of respect and protection, as human beings at later developmental stages do. On that matter -- that is, the matter of whether his position on abortion is correct or not -- Obama has exactly nothing to say.

Third, to say that "government should not intrude on private family matters" is likewise to beg the question as to whether elective abortion is really a "private family matter" or is instead a fundamental human rights violation, like when a man abuses his wife or strangles his child in the privacy of his own home, both practices that are wrong and should not be permitted.

So Obama has not offered any reason to think that abortion is morally permissible and ought to be legal (much less subsidized by taxpayers and exported to developing nations, as Obama advocates). To my knowledge he never has.

The second claim is this:

And as we remember this historic anniversary, we must also continue our efforts to ensure that our daughters have the same rights, freedoms, and opportunities as our sons to fulfill their dreams.

The freedom to have an abortion, then, is necessary for women to have "the same rights, freedoms, and opportunities" as men. It is true that, as a fact of biology, only women can become pregnant, and so the "burden" of not killing human beings in utero falls disproportionately on them. It is also true that the burden of not killing five-year-old children falls disproportionately on parents who have five-year-old children, so we might say that such parents do not have the same freedoms and opportunities as non-parents. But we would not then legalize the killing of five-year-old children, whose own "rights, freedoms, and opportunities," indeed very lives, are at stake.

Everyone is equally morally prohibited from killing innocent persons. This prohibition is not gender-specific. The question at hand is whether it includes the killing of the unborn. Pro-life advocates point to the scientific facts of human embryology and fetal development, which show that the unborn is a living member of our species, a human being, and then argue that all human beings, irrespective not only of gender, race, class, religion and ethnicity, but also of age, size, ability, dependency and cognitive function, ought to be treated with basic moral respect and protected by law.

Some thoughtful pro-choice advocates have engaged and responded to that case, and/or have seriously argued for the moral permissibility and legality of abortion. Most pro-choice activists have not, relying instead on intellectually superficial rhetoric. Pres. Obama is firmly in the latter category.