LIFE, LIBERTY, AND THE PURSUIT OF HAPPINESS: DID THE FOUNDERS REALLY MEAN THAT?

• Author: Walker, Burton

1. INTRODUCTION

   "And I've noticed that everybody that is for abortion has already been born." (1) When Congress passed it in 2010, the Affordable Care Act did not explicitly bar the use of federal funds appropriated under the Act for abortion services. The first version of healthcare reform legislation that passed the House of Representatives in November 2009 (2) contained such language, but the Senate did not approve that bill. The final version cleared by the House in March 2010 (3) and signed by President Barack Obama (4) similarly omitted abortion funding restrictions. That omission led to numerous attempts by conservative majorities in recent Congresses to codify the so-called Hyde Amendment ("Amendment") in the Affordable Care Act ("Act") with standalone legislation. (5) (A decades-old appropriations rider, the Amendment is found nowhere in the U.S. Code. It bars abortion funding in federal health programs, such as Medicaid, that receive funding under the normal appropriations process.) Proponents of these bills fear that health insurance plans provided through the Act's exchanges will be construed to include coverage for reproductive options, such as abortion, with which many Americans disagree on moral grounds. Conservatives argue that such insurance options would indirectly result in taxpayer-funded abortion coverage for millions of American women.

   This article will argue why these legislative efforts should come to pass. From a 3,000-foot view, it will present natural and moral law arguments for codifying the Hyde Amendment in the Affordable Care Act. It will also argue, using natural and moral law, why fetuses have a right to live. In addition, this article will address how all mankind, as part of the human race, can know of this right. Finally, this article will discuss why the Act's current language fails to fully protect unborn children of American women who receive, or may receive health insurance under the Act, and why separate legislation will provide that protection. There will be natural and moral law arguments for codifying these life protections in positive law; argument will also point to the works of authoritative jurisprudential thinkers such as Aristotle, Thomas Aquinas, Ronald Dworkin, John Locke, and John Rawls. This article's overall goal is to show its reader how various jurisprudential topics support the enactment of positive law codifying the Hyde Amendment in the Act.

2. ROE'S BACKGROUND

   In an age where constitutions codify legal rights and give them a God-like veneration, one would think that debate over certain rights would be a thing of the past. Lawyers, judges, legislators, philosophers, physicians, lobbyists, authors, college students, late-night TV show hosts, and impassioned citizens have debated for ages whether the unborn enjoy the same rights and worth as those who have been born. And as Professor Francis Beckwith aptly said, "No collection of U.S. Supreme Court opinions has been more misunderstood, and its arguments more misrepresented to the general public, than Roe v. Wade... and its jurisprudential progeny." (6)

   The Roe decision bears a heavy mark in a long line of 20th-century Supreme Court cases in which the Court extended constitutional protection to certain privacy interests in various aspects of American life. By a vote of 7-2, the Court, ironically composed entirely of men, held that a 119-year-old Texas statute prohibiting abortions except in the case of a threat to the mother's health violated the Fourteenth Amendment's Due Process Clause (7). In his majority opinion, Justice Harry Blackmun wrote that, "[A]side from procedural guidelines to ensure maternal health, a state has no right to restrict abortion in the first six months of pregnancy." (8) According to Blackmun, rights of privacy recognized by the Court for many years and in many settings (9) include the right of a woman to terminate her pregnancy during the first trimester. Roe invalidated countless state statutes that regulated abortion. Striking a blow to pro-life activists, the Supreme Court upheld the heart of Roe nineteen years later. (10) In 2007, it again declined to overrule Roe, but did uphold a nationwide ban on partial-birth abortion procedures. (11)

   Arguably, most Americans are unaware of Roe's full effects. Roe forbids the states from restricting abortion during the first trimester of pregnancy. Between the first trimester and the point of viability, states can regulate abortion only "reasonably" and only in the interest of maternal health. (12) However, only after satisfying those two interests did the Court consider the interests of the one whom an abortion affects the most: the unborn child. The states have discretion, only after the point of viability, to regulate abortion "in promoting its interest in the potentiality of human life," excepting abortions deemed medically necessary for the mother's health. (13) So, the Court made clear that a pregnant woman may obtain an abortion during the first two critical periods of time of a pregnancy (during the first trimester, and from the end of the first trimester to the point of viability). The State's interest in protecting fetal life, the Court concluded, may be ignored until after viability. (14)

   Unfortunately for him, Justice Blackmun did not understand that he was opening the door to abortion on demand by categorizing first-trimester interests, viability interests, and fetal life interests in the structure of his opinion. Professor Francis Beckwith correctly points this out. In the post-Roe world, a woman may obtain an abortion during the earlier stages of pregnancy not just out of medical necessity, but for any reason she deems fit. (15) In 1973, doctors estimated viability to be between twenty-four and twenty-eight weeks; modern medicine has moved it to between twenty and twenty-four weeks (16). Justice O'Connor, dissenting in Akron Center for Reproductive Health, recognized this shift in viability as a collision course by which Roe will collide with itself. (17) Professor Beckwith explains: "In other words, if viability is pushed back far enough, the right to abortion will vanish for all practical purposes." (18)

   However, thanks to Roe's sister case, Doe v. Bolton, such a collision may be avoided. The Doe Court required the government to interpret the word "health" as broadly as possible "in light of all the factors--physical, emotional, psychological, familial, and the woman's age--relevant to the well-being of the patient." (19) So essentially, when put together, Roe and Doe legalize abortion up to the time of the child's birth as long as the woman can convince her doctor that some aspect of her health depends on the abortion. (20) Congress found this to be true in the year of Doe's decision; at that time, a Senate Judiciary Committee report concluded that "no significant legal barriers of any kind whatsoever exist today in the United States for a woman to obtain an abortion for any reason during any stage of her pregnancy." (21) Just thirteen years after joining the Roe majority, Chief Justice Warren Burger, too, acknowledged that the point at which abortion is available on demand had already passed. (22) Although the number of legal abortions reported to the Centers for Disease Control and Prevention has dropped in recent years, (23) the CDC recorded over 600,000 abortions in 2013. (24)

   This article will not argue against abortion in general or that it should be completely outlawed. Rather, it will focus on the Affordable Care Act and submit two arguments: 1) the Act's language is inadequate to protect the unborn, and; 2) passage of codification legislation can provide that protection. For the remainder of this article, the following arguments will be made. First, Americans can know through the law of nature that abortion is an immoral practice which Congress should restrict as much as possible. Second, moral law requires that legislatures pass statutes to combat immoral practices. And third, the current language of the Act cannot protect the unborn from loopholes through which individuals might procure abortions with federal money. Several jurisprudential arguments support the enactment of positive law codifying the Hyde Amendment, and that will be seen in the following paragraphs.

3. A BRIEF HISTORY OF ABORTION

   Scholars generally agree that abortion as a procedure has been around since ancient times. Soros of Ephesus, an early Greco-Roman gynecologist (A.D. 98-138), identified abortion with two separate Greek words, both of which reveal what the procedure really does: phthorion, "which destroys what has been conceived," and ekbolion, "which expels what has been conceived." (25) No wonder feelings have been strong on the morality of abortion, even from the earliest times. The Didache, an early Christian treatise, included the practice of abortion in a list of prohibited vices: "You shall not kill.... You shall not slay the child by abortions (phthora). You shall not kill what is generated." (26) The Epistle of Barnabas also forbade the killing of a child in the womb. (27) John T. Noonan observes that the foundation of these prohibitions was the love of one's neighbor. (28) Clement of Alexandria, in the second century, wrote the following in his Pedagogus: that "Christians do not, in order to hide their fornication, 'take away human nature, which is generated from the providence of God, by hastening abortions and applying abortifacient drugs [phthoriosis pharmakois] to destroy utterly the embryo and, with it, the love of man.'" (29) According to Noonan, these ancient writings disallowed the use of abortifacient drugs because it destroyed the fetus, a creation of God, and in so doing violated the principle of loving one's neighbor. (30) The condemnation of abortion was widespread among other thinkers. In addressing the Roman emperor, an early Christian philosopher, Athenagoras, pleaded: "How can we kill a man...