A proposed national agreement on abortion

Women’s Rights

If liberal values mean anything, they include the basic right to bodily autonomy, which is central to each citizen’s political sovereignty. To uphold our nation’s longstanding commitment to liberal values, it is therefore crucial that we continue to ensure a woman’s right to autonomy by making abortion safe and readily available throughout the country. A civil right to an abortion is especially strong in the first trimester, where any countervailing rights that may accrue to the fetus or the state are small compared to the right of a woman to control her own body.

Fetal Rights

Pro-choice activists have claimed that recognizing a fetus’s right to life amounts to a theocratic imposition of Biblical morality and is thus unconstitutional. But the rights of a viable third trimester fetus are well established in secular ethics. The idea that just after birth, an infant enjoys the full panoply of constitutional rights, but just prior to birth, that same viable fetus has no rights at all, flies in the face of both logic and morality. While not recognizing fetuses as “persons,” our proposal would provide a provisional “right to be born,” unless the mother is threatened, during the final nine weeks of pregnancy.

States’ Rights

The Constitution’s Tenth Amendment seeks to balance majority and minority interests. And when it comes to the issue of abortion rights, this majority-minority tension exists at multiple levels. At the highest collective level, this tension is seen in the fact that a clear majority of Americans favor the abortion rights provided by Roe. Yet, in a minority of states, most voters continue to oppose abortion rights. At the next level, within these pro-life states, the numerous women who will now be denied the right to an abortion have a valid minority interest which the overturning of Roe negates. And at the individual level, a viable fetus has a similar yet countervailing “valid minority interest” with respect to the mother’s “majority rights” to life and health. Balancing all three levels of majority-minority interests – from the democratic majority of the American electorate to the minority interests of viable fetuses – accordingly requires give and take.