The Question Neither Pro Life or Pro Choice Dares to Ask

The Right talks about abortion, the Left about freedom of choice; but the pivotal issue is neither a surgical procedure or a choice. It's something more basic.

When the Supreme Court in Roe v. Wade declined to say when life begins, they sanctioned a legal window of vulnerability that endangers everybody.

FREEDOMFRIENDS Rob Argento Sep 2010 | As things stand at this moment, everybody in America is at risk of loss of life. And no, I'm not talking about the risk of nuclear annihilation or a surprise terror attack. I mean that Homo sapiens has been—or perhaps should be—placed on the endangered species list. And it's not some external threat that is endangering you or me. It's a domestic threat. It's our own government's failure to rule in defense of human life.

Because the Supreme Court failed to rule on when human life begins, or when it ends, the disturbing truth is that you, or I, cannot be absolutely certain whether we have the right to life, let alone the unborn fetus that Roe v. Wade directly concerned itself with in 1973. There is a distinct legal prospect that the State might one day not count your life worthy of equal justice under the law. They could conceivably say, "Oh sorry, you do not meet our requirements for 'life' and therefore have no right to life."

Though this scenario seems entirely unlikely in contemporary America, recall that at the time of the writing of the Constitution slaves, though referred to as "other persons," were not granted all the same rights as the writers of the Constitution themselves. If these "other persons" could be denied the equal protection of the laws as late as the 1860s, and if it is true that "America will never be the same" in the wake of the 9/11 catastrophe (TIME, Michael Elliott, Sep 11, 2001) how can you be so sure that your status and rights before the law will remain intact in the wake of the next catastrophe?

When the Court in Roe v. Wade declined to declare the unborn child a person-under-the-law they left a legal window of vulnerability open. In the Court's own words:

"We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer."

Since we all began life as an unborn fetus, and before that a single-cell zygote, this raises the obvious question: At what point did you become a whole person? The law seems not to know. A well-known Senator was once heard to say that he didn't think that anybody could reasonably consider a single-cell zygote to be anything like a real person. Oh, Senator? So, just when did the law formally confer legal personhood on you? Or me?

Then there's Senator John Kerry. He voted against the Unborn Victims of Violence Act—which recognizes a "child in utero" as a legal victim under specified conditions—saying, "I have serious concerns about this legislation because the law cannot simultaneously provide that a fetus is a human being and protect the right of the mother to choose to terminate her pregnancy." Kerry is pointing out that the law as stated can not logically be understood as a declaration that a "child in utero" is a whole person under the law from the moment of conception—or at any particular moment thereafter. No, we dearly need a stronger law that addresses the recognition of whole personhood head on.

If the Court does not rule on this crucial question, who will? Who will decide who does or does not qualify as a person? Who does or does not qualify for the right to life guaranteed by the fourteenth amendment ("…nor shall any State deprive any person of life, liberty, or property, without due process of law…)? Is it a matter of size? Weight? Form factor? IQ? Do you have to pass a civil service exam or something before the State will recognize your right to life?

In recent years the situation is only getting worse.

In January 2010 the Washington Post reported that the Obama administration considered it legal to target certain U.S. citizens for assassination—with no charges, no trial, no ability to contest the accusations. And both the Democrats and Republicans, many of whom still repeat the mantra "right to life," have no problem with this. Some of us who have always assumed we have the right to life as guaranteed by the Constitution might be shocked to discover that our own protection under the law can be overruled by a single act of an authoritarian head of state. The logical implication of this latest development is that the same government that you expected to defend your life—and keep you safe from terror—can now, itself, become the source of your terror. This should not surprise us, however, if we have thought through the implications of Roe v. Wade, where the Court was not able to say when life begins, or by extension, ends. Can your right to life be denied by government fiat? The "officials" in Washington think so.

Sadly, the Sixties generation, which formerly could be relied upon to raise a stink whenever their liberties were encroached upon, are accepting it all—now that they themselves have risen to positions of power and authority within the very Establishment they once abhorred. Some of them are in the White House right now.

Ironically, though the Court could not resolve the difficult question of when life begins for the individual, they previously had no problem resolving the question for corporations, which they recognized as persons for purposes of the Fourteenth Amendment in 1886 (Santa Clara County v. Southern Pacific Railroad). Whereas, however, the Court can know precisely when the life of a corporate person begins, they have no idea when yours does! Perhaps we should all address the Court and inquire: "Have you qualified me as a person under United States law yet? And if so, how and when did that occur? And can I have that in writing?"

In traditional American law—based on Jewish morality, Christian spirituality, Roman law, and Greek rational philosophy—it was most often assumed, though sometimes refuted, that you become a person—that is, that life begins—at conception. But today in America (and in much of the "civilized" world) this is no longer common law, even though it is supported by the science of molecular biology. If it were common law, it would be required to have an advocate for every unborn child before authorizing an abortion that leads to certain termination of life (albeit justified by some as "the necessary though tragic collateral damage in the exercise of freedom").

And so the question neither pro life or pro choice dare ask is, quite simply: Are you a person as far as the law is concerned? If you're sure that you are, then you might request Senator Kerry to restate his concern something like this:

"I have serious concerns about this assumed right to assassinate that gives the government power over life and death because the law cannot simultaneously provide that a person has the right to life and protect the right of the government to choose to terminate that person's life without due process of law."