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A Jurisprudence of Doubt

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Message Rafael Ventura-Rosa

Liberty finds no refuge in a jurisprudence of doubt. (Justice Sandra Day O'Connor) (Casey v Planned Parenthood)

But that it were as simple as being pro or anti something.

The abortion/choice/life issue is made all the more complicated by the fact that both sides are seeking and have always sought simple answers to very complex questions.

If you can bear with me, I will try to explain my own position. It is not simple. A lot of why the debate is made all the more complicated is that each side chooses to define the issue by using politically loaded buzzwords tailor-made for our sound-byte ordered media world. So, to an anti-choice person, the pro-choice people are Pro-Abortion. For the Pro-Choice people the Right to Life/Anti Abortion folks are Anti-Choice. In reality, neither side can come up with a simple answer because there isn't one.

For starters, it is my belief that NO ONE is pro-abortion! Not even pro-choice liberal feminists. What is really at the core of the debate and its complexity is that we have certainty and uncertainty on both sides. How we choose to decide in light of that uncertainty says much about us as a society. In the abortion/choice continuum, you have on the one hand a woman (a definite life) who may suffer (reversible) harm from being forced to carry to term a child that results from an unplanned pregnancy. On the other side, you have an uncertain potential life that may suffer the ultimate and irreversible harm of having its life (if it exists) terminated forever and all time.

For the same reasons that I oppose the death penalty, I oppose the termination of a life, under any circumstances. It is interesting to note that some of the same people that call themselves Pro-Life when it comes to the abortion issue are Pro-Death penalty. But then again, there is no law against inconsistency.

When addressing the "life" issue, it gets particularly complicated. When exactly does "life" begin? Well, in order to arrive at an answer to that question, you have to define what "life" is. If it is based on a scientific definition the answer will, of course, be different than that reached based on a religious, moral or ethical bases. If we choose the scientific definition used in Roe v Wade, then "life" begins (and therefore the constitution begins to apply to the "being" in question) at the point of "viability" (that is once the child is medically able to live outside of the mother's womb).

Even if we were to be able to determine, to a reasonable degree of medical certainty, that life, as defined in Roe, begins at 3 months, the construct is on a collision course with itself. Why? Because medical science may and probably will push the point of "viability" to an earlier and earlier stage in the pregnancy. Suppose it is someday possible for "viability" to take place at 2 days of conception? Then what?

As with the presumption of innocence, given the degree of uncertainty that exists on all sides of the abortion/choice/life debate, as a society we have to decide what is the acceptable "fallout" from having to make a decision under circumstances of uncertainty. Where the abortion/choice debate is concerned, if we choose to protect a woman's right to privacy in such a manner as would allow her to make the decision to terminate a pregnancy without government intervention, what we as a society are saying is the we are choosing to err on the side of protecting a woman from potential harm at the expense of protecting a potential life from definite and irreversible harm.

However, the idea that we as a society may well have sanctioned the wholesale termination of millions of "lives" brings with it a cumbersome burden of societal guilt. So what do we do? We say THAT'S NOT THE ISSUE! The issue is a woman's right to control her body. However, even if you fully support a woman's right to control her body, do you not have to ask: control her body in what way and to do what with? If your answer is no, then the logical conclusion you would have to come to is that a woman has the right to terminate a pregnancy, without any governmental intervention, even up to the point of childbirth minus one day. I do not believe that there are many (if any) pro-choice activists that would support the right to terminate a pregnancy that is in its ninth month.

Moreover, the abortion debate cannot and should not take place in a vacuum. Every unplanned pregnancy does not result in an unwanted child. Unless and until we address and de-stigmatize the adoption process and provide full resources to foster and adopting parents, the abortion/choice/life debate will not move out of the political morass in which it is stuck. However, that is another aspect of this very complicated debate and will be addressed in a later article.

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Yale Law School (Class of 1982). Private law practice, 1986-2006. Former law associate at Wall Street firm Fried Frank Harris Shriver and Jacobson (1984-86). Summer Associate, Rabinowitz, Boudin, Standard, Krinsky and Lieberman (NYC, Summer, 1981), (more...)
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A Jurisprudence of Doubt

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