Wrong Focus in Abortion Issue

On Jan. 22, abortion rights groups will celebrate the 30th anniversary of Roe vs. Wade. Antiabortion groups will memorialize it.

Rhetoric will fly on both sides, all of it aimed at the new Republican-controlled Congress, which Roe supporters see as a grave threat to women’s reproductive freedoms and Roe opponents see as their best hope for securing fetal rights.

Of course, the rhetoric will be aimed at you and me too because, in 2004, we will decide whether to reelect President Bush or install the Democratic challenger. Bush is likely to sign into law any bill Congress passes banning partial-birth abortion and to appoint pro-life judges to the Supreme Court; a Democratic president would probably veto such a ban -- as President Clinton did twice -- and appoint pro-choice judges.

For far too long, the abortion debate has been about political advocacy, not ideas. The feminist establishment has made choice a woman’s issue. The Christian right has made life a religious issue. Both have made loyalty crucial. If you’re pro-woman, you’re pro-choice. If you’re pro-God, you’re pro-life. But this is a false dichotomy. Abortion is not a feminist issue, and it is not a religious issue. It’s a libertarian issue that, legally speaking, has nothing to do with women’s bodies or God and everything to do with the Constitution.

So let’s be clear about the basics. “A woman’s right to choose” and “sanctity of life” are misleading phrases used to whip up public outrage and obscure the real issue at hand.

The case for abortion, and the legal basis on which Roe was decided, does not rest on “choice” but on the right to privacy implied, though never explicitly stated, in the 1st, 3rd, 4th and 5th amendments.

The case against abortion does not rest on “life” in the cosmic or biblical sense but on life in the purely legal sense, as set forth explicitly in the 5th and 14th amendments: “Nor shall any person ... be deprived of life, liberty or property, without due process of law.”

Thus, despite what the activists want you to think, the real question on abortion is whether the right to privacy or the right to life should prevail. Which comes down to the real choice on abortion: Is the fetus human?

If the fetus isn’t human, then getting an abortion is no different from getting a tattoo or a nose job. It’s a victimless procedure that is nobody’s business and should be legal.

If the fetus is human, then it deserves all the constitutional protections that you and I enjoy, the most important being the right to life.

If a fetus is human, then the logical conclusion is inescapable: Abortion, by definition, is homicide and should be illegal except when, to save her own life, the mother aborts in self-defense.

Fetal humanity is the philosophical hinge on which the abortion debate turns.

The less time since conception, the stronger the case against fetal humanity becomes, which is why pragmatic pro-lifers realize that first-trimester abortions are likely to remain legal in this country even if Roe is overruled.

But the converse is also true. The closer you get to the ninth month, the more irrefutable the case for fetal humanity becomes. That is why pro-choicers are going to have to accept that a ban on late-term procedures like partial-birth abortion is not only an inevitability under the current administration but also a moral imperative.

So maybe a good way to mark this 30th anniversary would be to move the debate from all or nothing -- conception to birth -- to a compromise in which lifers concede the first trimester, choicers concede the third and the rest of us have an intellectual discussion about the middle.