Sorry Fellas, but Wombs are Canadian

With the GOP Presidential candidates touting extreme and unconstitutional positions on abortion, I offer a defense of the right to choose to end a pregnancy at any time prior to delivery.
Santorum's Racist Stereotyping of Obama Pro-Choice Position

A human fetus is a potential human being. In future with technological advances in cloning any cell in a human body may well become a potential human being. If a human being could be grown from saliva, then spitting could be considered a mass destruction of potential human life. Under our system persons have rights. Only legally designated “persons” are protected by rights. The spectrum of when beings become “persons” stretches from conception to birth.

Abortion kills potential human beings who have not yet reached the point in their development where our law defines them as persons. Under Catholic doctrine, sperm cells can constitute potential human beings. Autoerotic stimulation leading to non-reproductive ejaculation would kill sperm thus effectively mass “murdering” thousands of potential human beings. In American jurisdictions with the death penalty murdering more than one person can make the case a capital one.

Believing that a human zygote should be considered a person as of conception, leads straightforwardly to the idea that abortion – by killing a person – is or ought be considered murder. Indeed, if abortion is a murder, it has to be considered first degree murder, as it is utterly premeditated – you have to make an appointment to get an abortion. That's as calculating as it gets. The physician has an office, employing staff, and maintaining all the apparatus required to commit the crime – hard to beat that in the premeditation/malice aforethought department.

So everything turns on our designation of personhood. Define the fetus as a person and abortion is murder, define the fetus as not-a-legal-person and abortion is not a murder. Pinning the label “person” on a living being of our species is non-problematic after birth, however contentious the matter is prior to birth. How can the point be settled? It cannot. However, there is a non-frivolous and non-arbitrary ethical and moral theory which I'll argue can sort things out and provide a coherent framework to justify the right to chose an abortion at any time prior to birth.

We have to go back to what allows us to order each other around in the first place. We take law for granted. It is what it is, and we must obey it or risk punishment. We know that some laws can be morally and ethically wrong. It is our custom to obey laws we are near certain are immoral, unless by refusing to obey we are willing to unashamedly proclaim our resistance and submit ourselves to the ordinary penalties running with the contested law.

Our constitutional system presupposes that the individual “precedes” the state – is “prior” to the state. Society exists for the benefit of individuals not the other way around. Our rights are individual arising from the notion we possess a legitimate sovereign authority to make laws for our tiny nation of one. We operate democratically, taking a vote (which is always 1:0) on those matters over which we retain sovereignty. Broadly speaking, the constitution delineates those areas of life where the individual is sovereign. It also divides this sovereignty in a variety of ways – between the three branches of the federal government, between the federal government and the states, and between governments and the individual. The locus of individual sovereignty is what we think of as private life. A woman's house is her castle. As sovereign her body is subject to no law but her own. This is personal freedom. The concept of rights and personal sovereignty flow from the Enlightenment’s “thesis of self-ownership.”

Where once Kings literally owned the bodies of their subjects in trust for the Christian God, the Enlightenment rejected giving effect to God's property rights. Slowly the interposition of law interrupted the prerogatives of the sovereign's property claims over people's bodies. From the Magna Carta to the Bill of Rights to the 19^th Amendment to the Civil Rights Act of 1964, the scope and extent of our sovereignty and the liberty it protects has been extended. 

In a democracy we hand over a part of this personal authority so that society through government is enabled to make a variety of collective decisions. Somewhat paradoxically we “let” government boss us around. But only … if the social contract is honored, such that the authority we give government is exchanged for not only civic rights but an inviolate sovereign authority over major areas of life where government is deemed to lack jurisdiction and lacks any warrant to boss us around. 

Now let's suppose for argument's sake that a vast consensus develops that views abortion as utterly immoral and because it fits the definition of murder this new consensus favors its criminalization. Congress and the 50 states all draft identical statutes purporting to overrule Roe v. Wade and setting criminal penalties for doctors who perform abortions and women who have the procedure. Exceptions are made for danger to life of the mother, rape, and incest. Discouraged by legal scholars who proclaim that Roe v. Wade cannot be overturned by statute, and that the new law is plainly unconstitutional, somebody offers the novel idea that the next best alternative is to promulgate the law to make abortion in Canada illegal. The rationale? The legislation embodies universal precepts of justice and morality -- transparently spiritually enlightened, manifestly wise it thereby gives effect to profound ethical and moral imperatives. Given the law's utility, justice, and moral thrust, can law-making bodies within the United States legislate for Canada? The answer is no, for American legislatures lack jurisdiction and sovereignty over Canada or indeed any other sovereign body.

It can now be seen why a democratic government such as our own is without legitimate authority to proscribe abortion. Any woman may rightly say “I own my body and therefore I own my womb. I retain sovereignty and remain the only person who can exercise true authority over a decision such as whether to carry a pregnancy to term. It is as if my womb were in Canada from the point of view of the jurisdictional reach of any American legislature. Canada's sovereignty precludes Americans from enacting laws purporting to bind Canada, and my personal sovereignty precludes an assertion of jurisdiction over my body.”