Abortion and constitutional underdetermination

Please note that this post is from 2012. Evaluate with care and in light of later events.

Abortion is a complex and controversial topic. As such, I won’t try to deal with it fully here (nor will I be arguing for or against the legality abortion). I will, however, point out a few issues regarding the subject in Michael J. Nellet’s “How The Left Redefined The Term ‘Rights.‘” Nellett writes:

The “right” of abortion, granted in 1973, is NOT a right under the Constitution … The “right” to an abortion is nowhere in the Constitution.

No specific, individual situations are explicitly delineated in the Bill of Rights. It is thus no surprise that abortion is not specifically mentioned. (Neither are wiretaps or handguns.) But liberty and autonomy of self (what the courts have connected to “privacy”) has been held to permeate the Constitution, and for this reason the courts have connected personal integrity and personal autonomy to the decision to have an abortion. This reading is supportable, but so are readings that deny this position  — especially when beginning assumptions differ. In Roe v. Wade, the Supreme Court found protection of the right to an abortion to be more supportable than alternative interpretations. Again, specific situations do not need to be listed explicitly in the Constitution (the Second Amendment does not mention handguns). And remember, too, that the Ninth Amendment allows for rights that are not specifically listed:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Nellett’s argument on abortion illustrates one example of constitutional underdetermination. To get to his conclusion, he adds the assumption that “an unborn child is a person whether you want to believe it or not.” This assumption is nowhere in the Constitution itself. That a fetus is not a person is also not in the Constitution. The text of the Constitution thus underdetermines the abortion question. Answering it (in either direction) requires the courts bring in something more than the text itself. Nellett’s abortion argument also illustrates another common problem of lay interpretation: confusing one foundational document with another. In his case, he confuses the Declaration of Independence (which has only persuasive authority) with the Constitution (which is binding law):

In fact, the practice of abortion is in direct confrontation with the supreme laws and rights provided for in the Constitution. According to this document, the three unalienable rights you have in this country are, LIFE, LIBERTY, and the PURSUIT of HAPPINESS!

But the phrase “life, liberty, and the pursuit of happiness” are not in the Constitution, although it is nonetheless a profoundly powerful and influential set of words. The phrase is persuasive, but not binding on the courts. And  —  to reinforce my previous point on underdetermination  —  the phrase also underdetermines an answer to the question of abortion.