Wednesday, August 22, 2012

Moral Wrongs And Legal Tolerance

The piece immediately below this one is my argument that an embryo or fetus in the womb is inseparable, in terms of identity, from the child it becomes -- and that therefore, abortion at any stage of gestation is the execution of an innocent human being, a clear moral wrong.

As the movie critics like to say: Buy the premise, buy the flick. If you disagree with my premise that continuity is identity, the remainder of this article will be irrelevant to you. But if you find it persuasive, what follows constitutes an important proviso that the pro-life movement will ultimately find that it must respect.

Amendment IV: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment V: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The Fourth and Fifth Amendments, taken together, constitute the private citizen's protection against many potential abuses of the criminal justice system. Were their defenses of privacy to be removed from the Constitution, apologists for the Omnipotent State could then argue for such things as compulsory contributions to a national DNA database, or compulsory testimony by the defendant in a criminal trial. After all, if "justice" is the end in view, then individuals' prerogatives that fall short of the status of rights must give way, for "justice" is the redress of violations of others' rights!

Happily -- though perhaps less happily among certain totalitarian-minded sectors of the populace -- the Fourth and Fifth Amendments stand. God willing and the electorate smart enough not to allow Barack Hussein Obama a second term in the White House, they will continue to stand. However, their protections do constrain what Americans can do to oppose moral wrongs with the justice system. Indeed, we would not want it otherwise.

Imagine the following scenario: Miss Smith, for reasons known solely to her, goes to her local pharmacy and purchases a home pregnancy test kit. She uses it in the privacy of her home, reads the verdict, and destroys the test strip. The next day, she calls her physician and asks him to schedule a dilation and curettage, which takes place a few days later. All these actions and transactions are conducted between Miss Smith and other private parties.

Add that recent Supreme Court decisions have overturned Roe v. Wade. Miss Smith lives in a state that has recently criminalized abortion at all stages of gestation. Can the state make a case against her for having solicited and received an abortion?

Under the strict terms of the Constitution of the United States, particularly the Fourth and Fifth Amendments, the answer is no:

  • Miss Smith cannot be compelled to testify against herself.
  • In the absence of probable cause, no warrant may be issued for any of the items that would constitute evidence against her.
  • As the D&C procedure is often administered for reasons other than an abortion, neither her physician nor her pharmacist can produce substantiation for an "oath or affirmation" that would pass Constitutional muster.

Mind you, Miss Smith may have received a first-trimester abortion. Many persons would link the purchase of the pregnancy test to the D&C and declare with personal (albeit unjustified) certainty that she had done so. If she did, then by the metaphysical standards presented below, she has extinguished the life of an innocent child -- a moral wrong. But nothing can be legally done about it without breaching her Constitutionally acknowledged and protected rights: a far worse measure that in time would bring about far more than one death.

America must extend legal tolerance to this moral wrong because the consequences of not doing so would be unimaginably worse.


There are other deeds which huge majorities regard as moral wrongs that we must treat similarly: some for similar reasons; others because no State could ever have enough power to enforce laws against them. It's not that our moral judgment is necessarily incorrect, though there have been cases where huge majorities have eventually been proved wrong about such a conviction. Indeed, there are several such issues before us today. Perhaps you can name one or two yourself.

Despite the notions of the Left, the Omnipotent State, capable of arranging reality in all dimensions and to any degree, is a fantasy. In this libertarian-conservative's opinion, it had better remain so; the alternative would be horrifying beyond all contemplation. But more specifically toward the eternally contentious subject of abortion, even a clear moral wrong, condemned by everyone on Earth but the one man who wants to do it, isn't necessarily a proper subject for action by the State. The imperatives of justice include the protection of our postulated, pre-existent individual rights against the zeal of the Cause People: those folks to whom individuals' rights are tolerable only as long as they don't obstruct their notions of "progress."

Don't be a Cause Person. Be an American.


Weetabix said...

Sometimes I try to paraphrase to make sure I understand:

1. We live in an imperfect world, so we have to put protections from each other and from the State in place.

2. It's better to err on the side of protecting the individual than to try to eradicate all moral evils because trying to eradicate all moral evils necessarily requires whoever was in power to define the moral evil, and they may (or probably will) get their methods horribly wrong.

I agree in principle, but I wonder... People always say you can't legislate morality, but that's really what most non-administrative legislation is: thou shalt not kill; thou shalt not steal.

I guess you could say that legislation should prohibit demonstrable harm to others. Or perhaps demonstrable harm to others where the other could choose to avoid the harm (gambling, alcohol abuse, etc would then be allowable activities).

Considering abortion murder, would you prohibit purposeful abortion where there's clearly a baby and the doctor knows it?

Francis W. Porretto said...

It's not about "erring" in any particular direction. A valid, defensible justice system doesn't set out to err, and doesn't ever do so deliberately; rather, it operates within a legal framework it's forbidden to violate. Neither is it about who gets to define "moral evil." We don't have a code of "moral evils;" we have a code of criminal laws created by legislatures according to a Constitutionally defined procedure. It's about the nature of rights.

A right is not something suspensible at the convenience of the State. An acknowledged right, explicitly protected by the Constitution, cannot and must not be violated even in the pursuit of justice. In the scenario I presented, Miss Smith cannot even be indicted because there is no objective evidence of a crime, and only she would know if one had been committed. Thus, to frame an indictment would require that Miss Smith testify against herself, which by Constitutional law she cannot be compelled to do.

But let's imagine that somehow an indictment were laid against Miss Smith. What would her lawyer say to the jury?
-- Yes, Miss Smith bought and used a pregnancy test kit, but the verdict of that test is known only to her.
-- Yes, Miss Smith sat for a D&C, but the reason for that D&C is known only to her.
-- Rather than assume the D&C was to abort a developing baby, why not allow that it might have been a routine menstrual extraction to avert painful cramps, and that she pregnancy-tested herself to guarantee that no baby would be harmed?

In the absence of any physical evidence to the contrary, reasonable doubt would compel an acquittal under those circumstances...which is yet another reason why no indictment would ever be proffered.

The law must not violate the rights the Supreme Law purports to protect. Neither may it extend its reach beyond its true power to enforce. Those are supra-legal principles that bind all justice systems at all times... whether they're recognized and acknowledged, or not.

furball said...

Francis, just spitballing here but:

If Roe v. Wade is overturned, as you posit, isn't it reasonable that some state might then pass a law making it illegal for doctors to perform an abortion? And wouldn't it be reasonable to assume that they would then require a doctor to perform a pregnancy test before performing a D&C? It's a short step to assume that the results of THAT pregnancy test would be permissible in court.

Francis W. Porretto said...

Same set of problems, Fur. Think it over.

Joseph said...

In view of the declining number of abortionists in the U.S. (apparently doctors have consciences), an intrusive law against abortion might not be needed at all.