Editor’s Note: This is the second of two pieces we’re publishing today on abortion. Majestyk’s post may be found here.

I’d like to thank Majestyk for the opportunity to respond directly and immediately to his post. I would also thank Tom Meyer and the Ricochet editors for the invitation to offer a counterpoint to Majestyk’s argument. He makes some interesting points which clearly require a reasoned response.

Honesty and good faith demand that I first set forth my position on abortion: I believe that abortion is the intentional taking of an innocent human life; that this is always wrong; and that there can be no compromise. I happily admit that I am fanatical if that term is defined as unyielding in my belief that human life — from conception to natural death — is sacred. In my view any leeway is a devil’s bargain, not simply because innocent lives will be lost, but because a society that authorizes the killing of the defenseless will quickly perish, as we are witnessing in the population collapse that is sinking the western world. Thus the stakes are enormous.

Now to respond to Majestyk’s argument. Majestyk seems to suggest that rights travel up a continuum grounded in the various stages of prenatal development. At some point — largely undefined — a fetus is entitled to the full panoply of rights, most particularly the right to life. I’ll have him speak for himself:

In contrast, after an implanted blastocyst has attained a certain level of development — and as the pregnancy becomes more obvious — it becomes feasible to grant an increasing quantity of rights to it. Indeed, these rights should accrue rapidly as shown in my illustration and asymptotically approach those of a full person as it reaches viability.

Majestyk continues:

It makes sense that the beginning point for the growth of these rights should come as the fetus moves beyond the stage of being an implanted blastocyst and grows into recognizably human form. Another critical marker should occur when the fetus begins to have neurological activity resembling that of infants.

At bottom, Majestyk argument is that until an unborn child reaches a point at which he is a person in the eyes of society, he enjoys no rights whatsoever. I find the argument strange because it suggests that the rights of which we are endowed derive from the state. We are not then “endowed by our creator with certain inalienable rights,” but rather our rights are derived through the fiat of society’s centralized and coercive power. Majestyk cites Barry Goldwater’s famous observation that “A government big enough to give you everything you want is a government big enough to take from you everything you have.” I would add that a government which gives us our rights has virtually unfettered power over our lives.

The limits placed on government are fixed, not by its power over us, but by the power we have over the government. The only workable check on government are the rights we enjoy innately — rights that cannot be taken away by anyone.

Majestyk’s argument is interesting, but nothing new. His framework is essentially identical to that invented by the Supreme Court in Roe v. Wade and Planned Parenthood v. Casey. In those cases, the Court concluded that it was impossible to determine when a fetus becomes a person and therefore the Court was empowered to make that very decision. Roe established the three trimester process in which, for all practical purposes, the states had no authority to restrict abortion. While the Court held that the states could prohibit abortion in the third trimester except in cases in which the mother’s health was at risk, in Doe v. Bolton, the companion case to Roe, the Court defined health of the mother so broadly as to effectively prohibit state regulation in toto. In Casey, the Court abandoned the three trimester approach in favor of a viability analysis. The Court held that once a fetus is viable a state could prohibit abortions, but, again, concluded that any such restrictions were pre-empted by concerns over the “health of the mother,” a concept so expansive that states still have little actual authority to ban abortion.

Thus, to accept Majestyk’s analysis is to simply surrender to the status quo. He does seem to grant that late-term abortions should be restricted, although he offers no details. However, the Congressional Budget Office, while analyzing the cost of the Pain Capable Unborn Child Protection Act, estimated that there are no more than 11,000 late-term abortions per year. Majestyk’s compromise would require that pro-life advocates accept a million abortions per year in exchange for the small number saved from late-term abortion. In essence, unconditional surrender.

It strikes me that the only principled way to treat the question of abortion is to declare that the right to life (and personhood to the extent that is a relevant consideration) begins at conception. This would require that we outlaw abortifacients and every other means the direct purpose of which is to kill an unborn child (this would not include IUDs since there use does not involve a premeditated intent to kill). Abortion advocates will scream that this means inviting the government into our bedrooms. The argument is a red herring. Constitutionally there can be no search, seizure, or arrest without an a priori showing of probable cause. It’s certainly possible that a busy body neighbor could peek in a window to see if a woman is swallowing  RU-486, but the testimony of a Peeping Tom will not support a finding of probable cause. Protection from the first moment of life is, in fact, the surest guarantee that government will not stick its nose into our personal affairs.

Of course abortion advocates will surely argue that the outlawing of abortifacients like RU-486 will create a black market in such methods. But it is more likely that, rather than risk prosecution, people will exercise greater caution in the selection and use of legal birth control including, we might hope, the oldest and most effective of them all: The word “no.”

In his concluding remarks Majestyk decries the legacy of Roe:

Roe v. Wade has given us a tragic legacy of division. Its human cost has been nearly incalculable in addition to the violence it did to our system of jurisprudence. Conservatives have sought to use the tools available to us to limit that damage and we have won hard-fought battles to limit late-term abortions – and I should note, done it in the correct way, through the use of the legislative process, not judicial fiat.

As noted above, however, he advocates for the exact same methods albeit pursuant to legislation. The democratic enactment of an equally incoherent approach hardly seems to get us very far. While I too would prefer legislation over judicial power, I would leave the decision entirely in the hands of the legislature — including the authority to prohibit all abortions. We ought not to place any restrictions if we are truly interested in legislative solution. To create a presumption in favor of a viability analytic would effectively do exactly what present jurisprudence does: Limit legislators to a very narrow field of authority.

Majestyk concludes with this:

But let us not make the error of observing the evils of a Kermit Gosnell and his abattoir and conclude that we can and must stop all abortion. Such power is not ours to wield.

This argument, which is entirely conclusive and devoid of analysis, is to rationalize legal killing. Worse, in my view, the killing of the innocent. It’s hard to imagine a greater and riskier power than the right to kill an innocent human being. Nor is it difficult to imagine that protecting the innocent is our greatest calling.

You can read Majestyk’s original post here.