Photo by Gayatri Malhotra on Unsplash

Yes, Mississippi, abortion is a Constitutionally guaranteed Right

When the constitution is silent on a specific right or freedom the Supreme Court must take the expansive view of an individual’s rights. This would be in keeping with history and the intent behind the founding of the nation. After all, when the Constitution was written it was the most expansive and open concerning individual freedoms & rights. To read it as restrictive would be completely wrong, completely disregarding history, the motivations of the colonists, and an overt shunning of the very foundations of the nation.

While the Constitution is explicit that any right not granted to the Federal Government falls to the States we must also keep in mind that it is the United States Constitution that enumerates the original Bill of Rights and is the document that sets the framework and foundation for the various States to follow. It is the controlling document, and for as much as our Republic lives in a delicate balance of Dual Sovereignty between State and Federal Governments we must remember that, similar to Animal Farm, while all governments are equal some are more equal than others. In this case, and take the metaphor any what you want, the Federal Government is the pig.

How does this apply to abortion? The decision in Roe v. Wade hinges on the 14th Amendment’s Due Process clause, interpreted to grant the right to privacy which, as I understand it, when taken in context of the doctor/patient relationship means that any decision to abort a pregnancy is a private matter that exists solely between the doctor and the patient. While many question whether or not applying the 14th Amendment to abortion was legally and logically correct, you have to remember that in other areas of one’s health the government has no role, no interest, and no jurisdiction aside from determining certain Federal, State and local benefits (not including laws and regulations aimed at medical practitioners meant to protect the patient from malpractice). At this point the question as to whether or not Roe was decided correctly is nothing more than a red herring. Taken on its own the underlying legal basis may in fact be a bit of a stretch, but when considered in the light of 50 years of history as well as the numerous laws, regulations and requirements on keeping patient health records private, there should be no doubt that pregnancy is as much a protected health concern as any other. There is no law, nor would any reasonable person accept such a law, that prohibits men from getting vasectomies. Nor is there is any law criminalizing a man for ejaculating without attempting to impregnate a woman.

Which brings us to the equality granted each person before the law, regardless of sex, sexual orientation, race, color, creed, religion, etc. If a man can lawfully discard sperm, or in fact literally cut off its very method of egress from the body, why then must a woman carry a non-viable, non-independent bundle of cells until they grow so large that their very exit is excruciatingly painful and carries with it a high risk of life long injury, disfigurement and health issues. And it’s not just the birthing process that presents a multitude of health risks, including death, that men by their very physical makeup can never experience, but the entirety of the pregnancy is a nine month gauntlet of sickness, uncomfortable to downright dangerous body changes, and monumental life changes. And, it’s not just the pregnancy itself that offers up life altering changes as health issues can and do arise after birth.

As so many of you parents already know, a child is a lifelong commitment. Meanwhile, pregnancy for men is not something that will negatively impact their career growth or trajectory, legally or socially. Pregnancy for men doesn’t impact their financial standing. When it comes to financial support the burden rests much more on the shoulders of the woman than the man, even when in a committed relationship. If the couple splits and the father fails to financially support their child it falls to the mother to fill the gap. Even when the courts demand that the father pay child support how many women have the financial foundation to hire a lawyer to ensure the father complies? How many single parent women have the time, emotional and mental resources to continuously hound a deadbeat dad?

Here is where, in order that men and women have equal legal standing, the law must make special accommodations for women. This starts with bodily autonomy and ends with stronger, fairer and more rigorous laws to ensure that men provide their fair share when their actions lead to pregnancy and birth. That financial, social and career impacts for both parents of a child are equally shared.

And so, yes, abortion is a special consideration, but not one that must put higher weight to an unborn, unconscious, unaware fetus’ right to life. And not one that by its very nature diminishes or makes unequal the social, political, financial and legal standing of men. In fact, just the opposite. The right of women to have the same equitable footing before the law, in society and financial affairs must be given the same weight and gravity that is afforded to men. In a nation where men can skip out on their parenting and financial duties to the children they help create the burden to ensure the proper balance falls to the State and the Law. In a world where women carry the full brunt of the physical and mental challenges and fallout of pregnancy it falls to the State and the Law to ensure their equality in all aspects of life. And, that equality is the right to choose. The right to choose their happiness, their liberty, their life.

Simply and without doubt the Constitution is neither neutral nor ambivalent on abortion. Pregnancy is the one thing that women must bare the costs of wholly but the very framework of our nation, the very fiber of our makeup not only demands but requires that all opportunities for all citizens be equally attainable. And, yes, that means that, just as for a man who seeks sexual relationships for physical pleasure, women must be able to pursue the same such gratification without worry and concern that the State will require of them a life path they do not wish to pursue. Anything less makes women not just second class citizens not worthy of being counted as a whole person, but binds them to a life of servitude and submission to the men in their lives and the State. A position that in American society that was done away with by the Emancipation Proclamation, and yes, the 14th Amendment.

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