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Jack Weinstein

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Roe v Wade is bad constitutional law. It asserts that the right to an abortion is derived from the right to privacy, but as many people have argued, it is unclear whether the U.S. constitution recognizes privacy at all. It might, but it is a hard sell. The word privacy isn’t found in the text.

More problematic though is that if the fetus is a baby—and notice that I am only saying “if”—then the baby’s right to not be murdered would indeed take precedence over freedom from government intervention. Preventing murder is one of the core jobs of government. That’s why the debate over the meaning of life is so important. Everything depends on it. Liberals need a better pro-choice argument and I believe that I know what it is.

The fact is that the only way to decide whether a fetus is a baby is by appealing to religious or historical tradition. Both religion and science define life based on their own internal standards—life beginning at conception only makes sense in some denominational worldviews, while life beginning with brain waves or viability only makes sense when we accept certain scientific principles. As a result, the right to choose is best justified using the first amendment, not the fourth. Abortion is not about privacy, but about freedom of religion. Congress shall make no law impinging on an individual’s right to choose when life begins, therefore, congress shall make no law impinging on abortion.

Once we recognize that abortion is an issue of religious freedom, it should be easy to harness conservative suspicion of government overreach to craft a political argument acceptable to everyone. In short, if I were running for president, this is what I would say:

I stand in full defense of your right not to have an abortion. No government should ever force anyone to violate their religious beliefs and to kill their unborn child. Whatever your situation, whether you chose to get pregnant or not, whether you consented to sex or were the victim of a crime, it is your constitutional right to keep the baby if you want. I am pro-choice because the only way to insure that you are never ever forced to kill your child is to recognize that the government has no authority over abortion at all. Today’s president and congress respects our right not to abort our children, but what about the next president and the next congress? Maybe they’ll start with forcing inmates to abort their children and then move on to the mentally handicapped—all for “their own good.” They’ve come close before. It is not hard to imagine a time when the only people who will be allowed to have children are the ones the government approves of. We must be pro-choice because we must protect our right to not have an abortion now and forever.

Notice that this argument is entirely consistent with the worldview of the religious right and small-government conservatives. It acknowledges their suspicion of government, it recognizes their definition of life, and it does not carve out exceptions for rape or incest. I personally am not suspicious of the government, but this argument isn’t for me. It’s for those with whom I share a country. It is a sign of respect and a celebration of democratic joint governance.

It seems to me that if liberal are correct, than just a little empathy with conservatives will allow them to reframe their positions in a way that respects their opponents but confirms liberal practices. That’s the beauty of liberalism. It is inclusive, not combative. If liberals can’t find a way to make their opposition feel respected, even in the face of disagreement, then they miss the very point of liberalism.

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