Friday, January 4, 2013

Clear and Present Dangers 12: Abortion and the Living, Breathing Constitution

In my latest reading of Clear and Present Dangers: A Conservative View of America's Government (copyright 1975), M. Stanton Evans defended his objections to marijuana, pornography, abortion, and euthanasia.  On pornography, Evans believes that local communities have the right to set their own anti-obscenity standards.  But doesn't that violate the First Amendment?  Evans did not specifically address this question, but you may recall from my previous write-ups on this book that Evans does not believe that the Fourteenth Amendment applies the Bill of Rights to the states.

But I want to focus in this post on the abortion issue.  Regarding Roe vs. Wade, Evans says on page 350, "The legal reasoning was that the drafters of the Fourteenth Amendment didn't believe the child in embryo was a 'person' and didn't intend to confer its protection on the fetus----and far be it from the court to enlarge upon the purposes of the drafters."

I get the irony: Evans is probably saying that liberal judges ordinarily believe in a living Constitution as opposed to sticking with the original intent behind the document, yet in Roe vs. Wade they suddenly decide to go with the original intent!  But is Evans guilty of doing the opposite: ordinarily supporting original intent while regarding the Constitution as a living document when it comes to the abortion issue? 
I can only guess.  If Evans believes that the Fourteenth Amendment protects the unborn, then the answer is probably "yes".  If, however, Evans merely thinks that state governments under the Tenth Amendment should have the authority to restrict abortion as they wish instead of seeing their laws struck down by judges according to a definition of a right to privacy that (according to him) is not in the Constitution, then the answer is "no", for in that case he'd be going with his own understanding of the original intent behind the Constitution. 

Which accords more with Evans' belief?  One the one hand, one could make the case that Evans has the latter approach (states' rights) to the abortion issue, for he says on page 347 that states have the authority to ban contraception (whether or not they should do so), and so it's conceivable that he'd say that states have the constitutional authority to restrict abortion.

On the other hand, perhaps Evans thinks that the federal government should recognize the fetus as a human being with rights.  On page 355, Evans appeals to court decisions (Bonbrest v. Katz in 1946, Kelly v. Gregory in 1953, and Paul v. Milwaukee Automobile Association in 1959) that, according to him, acknowledge that the fetus has rights as an entity separate from its mother.  Evans states on this same page that these decisions differ from certain earlier court decisions: "Prior to recent medical discoveries concerning the reality of fetal life, it had been assumed in some court decisions that the unborn child was indeed a 'part of the mother's body.  But it is noteworthy that the trend of twentieth century jurisprudence had been moving away from this notion as the scientific evidence unfolded."  Is Evans supporting the concept of a living, breathing Constitution here: that our interpretation of the Constitution should be influenced, not just by original intent and what the text literally says, but also by recent scientific advancements?  Would Evans, therefore, argue that the Fourteenth Amendment protects the unborn, even though the Fourteenth Amendment explicitly defines as U.S. citizens those who are born or naturalized in the U.S.?  Or would Evans conclude that the Constitution as it currently stands is not sufficient to protect the unborn, and thus there should be a Constitutional Amendment banning abortion?

(UPDATE: On page 403, Evans supports Congress passing a human life amendment.)

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