All Rights Aren’t Created Equal

The nomination of a Justice to the United States Supreme Court should always give us cause to re-examine the role of the Court in our Constitutional Republic.  A case can be made that of the three branches of Government, the Judiciary is the most independent and powerful.  Think about it. The Supreme Court gets to pick and choose the cases it hears; Justices aren’t elected; they’re appointed; they serve for life, and can only be removed by impeachment, retirement, or death. And in the history of the court, only one Justice has ever been impeached.

In 1804, Samuel Chase of Maryland, one of the original signers of the Declaration of Independence was impeached by the House of Representatives.  Supporters of President Jefferson claimed that his politics biased his decisions and attempted to remove him from office. They failed; Chase was acquitted by the Senate and remained on the bench until his death in 1811.  Instead of weakening the power of the Court as Jefferson hoped, the impeachment actually strengthened it by establishing the precedent of Judicial Review that affirms the Court’s power to void legislation it deems unconstitutional.

The Supreme Court is the ultimate authority on the rights, liberties and freedoms of the American people.  Its rulings set the precedent for all other courts to follow. Each Justice must balance the hierarchy of human and civil rights and strive to render a decision that is just, fair, and true. It’s an awesome responsibility, and a difficult and demanding task because not all rights are created equal.

The rights and freedoms that we enjoy as Americans are either expressed or implied. The rights of life, liberty and the pursuit of happiness are our most fundamental rights and are expressed in the Declaration of Independence.  Just as the freedoms of speech and the press are expressed in the Bill of Rights.  The freedom of choice, however, is not an expressed right because it doesn’t appear in either document.  It is an implied right because it must exist and is necessary if one is to exercise their right of liberty in the pursuit of happiness.

Rights are also either conditional or absolute.  Most rights are conditional.  That is, we are free to exercise them on the condition that it does not infringe upon the rights of another.  Subsequently, conditional rights can be restricted or temporarily denied.  The freedoms of speech and press are protected by the 1st Amendment, but a judge can issue a gag order restricting them to protect an individual’s right to due process.  However, the gag order must eventually be lifted, and the 1st Amendment Rights restored. Absolute rights cannot be restricted because once they are denied, they cannot be restored. The right to life is an absolute right.

The Supreme Court may be the final authority on our rights and freedoms, but it is not infallible. Over the years, it has chosen political expedience over truth, and rendered some extremely flawed and terrible decisions.  The Dred Scott decision of 1857, which ruled that African Americans, whether free or slave could not be US Citizens, is generally considered its worst. That was nullified by the passage of the 14th Amendment.  Plessy v. Ferguson in 1896, upheld legal segregation, but was overturned by Brown v. the Board of Education in 1954. Buck v. Bell in 1927, upheld the sterilization of people with intellectual disabilities, and Korematsu v. United States in 1944, upheld the internment of Japanese-American citizens during World War II.  Interestingly, neither of these decisions has been overturned. Another extremely flawed decision that will have difficulty being upheld is Roe v. Wade.

Roe v. Wade is the 1973 ruling that upholds a woman’s right to have an abortion. It’s flawed not because it upholds a woman’s right to choose, it’s flawed because how it defines a human being.

Roe v. Wade pits a woman’s conditional right to choose against an unborn child’s absolute right to life. A conditional right cannot infringe upon an absolute right.  A woman has the right to choose an abortion only up until the point in time when the fetus becomes a person and inherits its absolute right to life.  The ruling defines this as viability; the point in time when the fetus is “potentially able to live outside the mother’s womb, albeit with artificial aid.” The problem with this definition is that it is uncertain and ambiguous.  The definition that determines what is and is not a human being, and when the conditional right to choose can supersede the absolute right to life, cannot be uncertain and ambiguous.  It must be certain, universal, and verifiable. Viability is none of these.

In 1973, viability was generally considered to be around the 28th week of pregnancy.  Today however, because of advancements in medical technology, viability occurs between the 23rd and 24th weeks.  So, viability is dependent upon ever evolving and changing technology?  How can technology, or worse, an individual’s access to technology, be a determinate factor in what constitutes a human life? It can’t, it’s too uncertain.

In low-income countries, the survival rate or viability of preterm babies less than 28 weeks in gestation is below ten-percent, in higher-income nations it exceeds ninety-percent. Does a person’s country of origin, ethnicity, or socio-economic condition determine whether or not they’re a human being?  Of course not, because that’s not universal.

And how do we know the precise moment when a person becomes a person?  If we’re going to allow the conditional right of choice to infringe upon the absolute right of life, don’t we need to verify that the life in question is indeed not a viable person?  How do we do that? We can’t, viability is neither certain, universal nor verifiable, and it is not an acceptable standard for determining what constitutes a human life.

If the Supreme Court agrees to hear a challenge to Roe v. Wade the viability criteria will almost certainly be discarded.  The Court will then have to decide upon a new definition for human life. Both sides will make their case for what they believe constitutes a human life. The pro-life side will argue that life and personhood begin at conception. That a fertilize egg is a single-cell organism that contains human DNA, and therefor, a human life with the absolute right to life that the Court is obligated to protect. Abortion-rights advocates will argue that a fetus isn’t a person and doesn’t inherit its absolute right to life until it exists outside the womb independent from the mother at birth.  However, given the hierarchy of rights, the burden of proof will fall upon those advocating for the conditional right to choose over the absolute right to life. It will be a very difficult case to make and is why the left vehemently opposes any challenge to Roe v. Wade.

No one knows with absolute certainty when human life begins.  There are opinions, but as of yet, there is no certain, universal, and verifiable standard.  However, considering what’s at stake, aren’t we obligated to at least try to discern the truth?  Let each side present its case.  Let’s hear from the expert witnesses; the scientists, philosophers and theologians, and let’s arrive at a decision that is just, fair and true.  Now, if one side continually insists upon opposing anyone or anything that requires it to argue its case and defend its position, doesn’t that tell you everything you need to know? Think about it.