Today we look at abortion from a natural law perspective. In our opinion, looking at it an any other way is at best a misdirection, and at worst a serious strategic and tactical error. In particular, making it a religious issue does little good in the long run, although in the short run it makes it easier to get emotional support and raise funds.
Natural rights to life, liberty, and access to the means of acquiring and possessing private property are not religious issues per se, but are, and have always been, human rights issues. Within the traditional western Aristotelian framework, natural law is a religious issue only in regard to the source of natural law itself. It should not be of any concern to civil authorities except as private persons or in their official capacity in guaranteeing freedom of conscience.
As far as human positive law is concerned, all human beings have these rights and their exercise cannot be taken away except for just cause and after due process, although — of course — their exercise must necessarily be limited, however absolute the right. For civil authorities or anyone else to assert that a natural law is not binding because it is a religious issue is not merely bad jurisprudence, it is bad logic and contrary to reason.
The first principle of reason is the law or principle of (non) contradiction: nothing can both “be” and “not be” at the same time under the same conditions. A claim or argument that contradicts reason is automatically invalid. If it is used as the basis for law it is invalid because it posits a logical impossibility, such as holding a person guilty until he proves himself innocent.
Proving a negative is logically impossible; you cannot, as Fulton Sheen commented more than once, prove the existence of non-existence. To assert, therefore, that the natural right to life is invalid because it is a religious issue when clearly it is not contradicts the definition of natural law itself and subverts the purpose of human positive law. Claiming a constitutional basis for a right to an abortion contradicts any constitution that has a natural law basis, and automatically invalidates any interpretation of a constitution or amendment that makes such a claim.
The constitutional issue is much simpler than the question as to whether a natural right is religious or civil. In a sense, claiming it is a constitutional issue has already settled that question. If a right is not a civil right, what is it doing in the constitution? This, of course, gets into another logical tangle, for if opposition to abortion is a religious issue, isn’t support for abortion equally religious? If the whole thing is a religious issue, the U.S. Supreme Court has nothing to say either way, unless a religious issue violates someone’s civil rights.
It seems reasonable to conclude that if being in favor of abortion is a civil right, then opposition to abortion is a civil issue, regardless how it is expressed, so long as it is argued on the basis of natural law. If, however, opposition to abortion is a religious issue, then support for abortion should also be regarded as such, and the Court has no business either supporting or opposing abortion.
And if it is both religious and civil? Then the Court may deal with it, so long as it avoids the religious issue, e.g., admitting an objection that the pro-life movement is using a religious argument when it maintains that a fetus has a natural right to life. The Court cannot have its cake and eat it, too. If the right to life is rejected as being religious, then the whole of the natural law is religious — which contradicts the whole basis of western law and invalidates all human positive law except for the principle that might makes right.
This brings us to the question as to whether a fetus or slave is a “person” as that term is used in the U.S. Constitution?
|Roger Brooke Taney
Legally, a “person” is that which has rights. A natural person is that which has rights by nature, while an artificial person is that which has rights delegated to it. A natural person cannot be owned as its rights are part of what it means to exist and are therefore inalienable, while an artificial person must have an owner as its source of rights; an artificial person is an abstraction, a human construct that has no independent existence.
In 1857 Justice Roger Brooke Taney, a “neo-Catholic” (a pre-1881 term for modernist), declared in his opinion in Scott v. Sandford (the Dred Scott case) that “person” and “citizen” are equivalent terms. As Taney argued, the State confers citizenship at its discretion, therefore the State also confers personality.
Taney concluded that because Dred Scott was clearly not a citizen, he was also not a person, and therefore had no right to be free or anything else. This Supreme Court decision overturned the natural law basis of the U.S. Constitution and shifted sovereignty from the human person created by God, to the State created by man, in effect making God subservient to man.
The Fourteenth Amendment in part overturned Scott and reaffirmed the natural law basis of the Constitution, securing to every person the full spectrum of natural rights. Less than ten years later, however, in the Slaughterhouse Cases of 1873, the Supreme Court effectively nullified the Fourteenth Amendment, in part by mis-citing Taney’s decision in Scott, but largely by handing down what constitutional scholar William Winslow Crosskey called one of the worst decisions in judicial history.
According to Crosskey, the decision in Scott was written so vaguely and “craftily” (Crosskey’s word) as to allow the Supreme Court in the future to interpret the Fourteenth Amendment any way it chose. The Court would be able to uphold or dismiss the privileges and immunities clause (based on whether someone is a person and thus has natural rights) as it found convenient.
Exactly a century after Slaughterhouse, the Supreme Court in Roe v. Wade “rewrote” the Constitution in two ways. One, the case was moot. Prior to 1973, it was held that no federal court could try a moot case. The baby had already been born, and it should have been a non-issue. To get the case to the Supreme Court, however, the interpretation of the Constitution was changed to mean that a federal court could not try a moot case in most instances. This is a meaningless stipulation, as it allows any court to try moot cases at its discretion.
Two, the decision in Roe v. Wade was based on the claim that the Court did not know if a fetus is a human being, but it is not a person as that term in used in the Constitution. This is extremely problematical.
Most immediately, if the Court did not know whether a fetus is a human being, then it could not know if it is a person. Logically, you cannot base a certainty on an uncertainty. The Court based its decision on a contradiction, thereby invalidating it.
Further, the Roe decision ignored the natural law basis of the Constitution by again separating personality from humanity. It also reaffirmed the nullification of the Fourteenth Amendment that — as seen in the Court discerning an implied and derived “right to privacy” that overrides explicit natural and inalienable rights — effectively vested the Court with unlimited power.