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Listening to the way proponents of abortion rights structure their arguments, I've always been puzzled and disappointed by the defensive, apologistic tone usually taken: "Well, it's a hard choice whether or not to have an abortion..." (thus preemptively conceding moral ramifications that don't necessarily exist) "...but women must have the right to make decisions about their own bodies."  While this "pro-choice" framing of abortion rights is technically proper, it merely hints at the heart of the matter, and fails to vehemently attack the patently illegal and immoral nature of the alternative.  We who support abortion rights don't even need Roe v. Wade - we have the entire Constitution on our side, and Roe v. Wade is merely one historical case where that was recognized.  

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To ban or even significantly hinder abortion via onerous restrictions is tantamount to imprisonment and enslavement of women without due process as well as seizure of their property to support the unwanted pregnancy and birth.  As such, all legislation doing so represents bills of attainder expressly forbidden by the Constitution - i.e., bills that usurp the Judicial due-process function through legislatures.  The only way that it would not be a Bill of Attainder would be to make pregnancy itself under all circumstances a criminal offense, and then have all women who become pregnant tried, convicted, and sentenced to bring the pregnancy to term.  The closer you look at the legality and morality of the issue, you find more and more interlocking reasons why limitations on abortion are fundamentally unconstitutional and morally indefensible.  

In fact, while I am not a lawyer, let's just run through the text of the US Constitution and see how many different ways we as laymen can show that the right to abortion is guaranteed and its alternative legally impossible:

Article I, section 9, paragraph 2:

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
Since neither foreign invasion nor domestic insurgency have any bearing on the right to terminate pregnancy, it would seem women who face onerous government-imposed burdens and restrictions that effectively seize control of their bodies and finances for nine months all have the right to file writs of habeas corpus to liberate them from de facto custody.  And since none would have been charged, tried, or convicted of any criminal offense in order to receive this treatment, any judge would have the authority to do so by releasing them from prohibitive legal and regulatory impediments designed to hold them effectively captive.

Article I, section 9, paragraph 3:

No Bill of Attainder or ex post facto Law shall be passed.
As noted, the only way a ban or limit on abortion would not be a Bill of Attainder would be if the bodies and finances of all pregnant women - including those who intend to bring theirs to term - are forfeited to state supervision for the duration of pregnancy, and if all women who become pregnant are placed under state authority via a trial process and conviction for a criminalized act of becoming pregnant.  During this period of supervision, the state would have the power to dictate what a woman eats and how often, what she drinks, whether she smokes, and basically every single detail of her life for nine months in order to guarantee the health of the baby, and impose criminal penalties if she deviates from this program.  Ask any Forced Birther / Body Snatcher whether they would be willing to accept such forced supervision during their family's pregnancies, or if the government authority they perceive in this area only exists when they find it convenient.  

Moreover, if government has the authority to force a pregnancy, it must also have the authority to force the termination of a pregnancy.  Either it wields authority in this domain or it doesn't.  In fact, if it does, it must also have the authority to both force women to become pregnant, or to sterilize those it deems unfit to do so.  Either the government has the authority to regulate human reproduction or it does not, and since the Constitution does not give it such authority - and in fact gives individuals many rights that preclude it - obviously it cannot legally sterilize women, force them to become pregnant, force them to have an abortion, or force them to carry a pregnancy to term.  Any argument that it has the authority to prevent abortion but not do these other things is just a lawless, selective, constitutionally moribund attempt to use government as the instrument of personal opinion, and would clearly involve Bills of Attainder to be enforced.

Article I, section 10, paragraph 1:

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
So the prohibition on Bills of Attainder explicitly extends to the state level as well as federal, so every state-level attempt to impede access to abortion or usurp authority over a pregnancy to the state is patently illegal.

Article IV, section 2, paragraph 1:

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
In other words, the Constitution - and therefore the multiply-guaranteed right to have an abortion - is the universal law in the United States of America, and not merely some superficial umbrella document of a Confederated government that individual states may ignore at will.  Which is also what this says:  

Article VI, paragraph 2:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Then, of course, there's this slight matter:

Amendment I:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Attempts to ban or limit abortion have one and only one basis: Religion.  Legislation to that effect has one and only one motive: To limit the freedom of others based on a particular group's religious beliefs about human development, no matter how drastically those beliefs fly in the face of biological fact.  Just as there is no non-religious reason to legally force people to wear yarmulkes or hijabs, and thus any such law would violate the 1st Amendment, there is also no non-religious reason to ban or limit abortion.  All such restrictions are in flagrant violation of the Establishment clause.

Moreover, it doesn't only violate the 1st Amendment because it imposes the religious beliefs of some on to the body politic, but because it theoretically prohibits the exercise of others.  What if someone's religion requires abortion under some or all circumstances?  Since there is no rational scientific basis for the claims of anti-abortion ideology, as there would be in prohibiting the exercise of a religion requiring (for instance) human sacrifice or rape, the only possible basis for prohibiting the exercise of a religion requiring abortion would be the beliefs of other religions that oppose abortion.  That is a quintessential violation of the 1st Amendment.  And this doesn't just apply to the vaguest overall right to an abortion - it totally precludes any impediment not based on medical science.  You can regulate it to the extent that it serves the purpose of allowing safe and effective access, not impose arbitrary burdens with the express purpose of limiting such access.

Amendment III

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
Not directly relevant to abortion, but you can see the obvious legal analogy: If a soldier acting to defend the United States of America has no right to force his way into someone's house and occupy it without their consent, how in the hell does the state have the authority to force a woman to quarter a fetus in her body for nine months?  Quartering a soldier in war actually serves some practical and perhaps necessary purpose, but as noted before, forcing a pregnancy is just imposition of a religious belief.

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.
You don't get to seize control of a woman's body and her life in general for nine months without her having been convicted of a crime, and even in prison today women have absolute reproductive freedom under the law: The government may not sterilize female prisoners or force them to become pregnant, nor may it either force nor prohibit an abortion.  In other words, there is no authority whatsoever under current law, under any circumstances, to do what Forced Birthers seek to do and have done through onerous regulation and restriction of abortion.  Their actions are criminal abuses of power in violation of multiple Amendments to the Bill of Rights.

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 offence 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.
Obviously there is no due process involved in state seizure of women's bodies without trial, nor any "just compensation" given for the financial expenses thus imposed.  That's one of the many hypocrisies of the Forced Birth political movement: They declare that all life is precious (except foreigners, people they suspect of crimes, abortion doctors, animals, women whose lives are threatened by pregnancy, and so on), but refuse to pay a single dime to support it.  That would be "socialism," whereas state seizure of someone's body for use as an unpaid government baby factory is apparently something else.

Amendment IX:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The fact that there is no sentence saying "The right to abort a pregnancy shall not be infringed" does not indicate the absence of such a right.  Rather, the overwhelming bulk of the Constitution implies that the right necessarily exists and be inviolate.

Amendment XIII, section 1:

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
If one person forced another to carry their luggage (however light) and feed them for nine months, that would obviously constitute involuntary servitude (i.e., slavery).  Same goes if a person forced another person to carry and feed a third person - e.g., the way plantation owners foisted their children off on "mammie" slaves who fed and raised them.  There is no moral difference between that kind of slavery and forcing a woman to remain pregnant - in fact, it's probably worse because it involves fundamental physiological and emotional changes, not to mention the arduousness of giving birth.  Not one minute of forced pregnancy is legal or moral, let alone nine months and a forced birth process.

Amendment XIV:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Making previous Amendments explicitly extend to states as well as the federal government.  And note "born or naturalized" - neither of which fetuses are.  Apparently the Founders - and even the Emancipators a century later - had never heard of this novel idea that you're a person before you're even born.  Abortion was only illegal in those days because women had no legal authority, not because fetuses had any.

Amendment XIX:

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.
Being forced to be pregnant and give birth might introduce impediments to the practical exercise of voting, not to mention whatever impediments could be caused by resulting complications or financial burdens.  A choice to be pregnant is the voluntary, informed decision to accept these risks and burdens, whatever effect they may have on voting, but being involuntarily saddled with them is an imposition that could compromise this and every other right - including the right of the mother to live.

Basically, a number of states in this country are in open rebellion against the US Constitution by making it a practical impossibility for women to obtain abortions, and underscore the undemocratic and authoritarian bent of their political cultures.  Moreover, those who support these measures are either ignorant of the law and moral implications, or such hypocrites that they simply don't care.  They are willing to impose tyrannical government on the minority of women who would make decisions they personally disagree with, but not accept any greater measure of state supervision themselves in any area of their own lives.  

It's about time people who support abortion rights stopped promulgating defensive lines of argument and made clear that this not a nuanced issue: Either women have the absolute, unlimited right to abortion whenever they damn well feel like it, or the state has the power to regulate human reproduction in whatever ways it sees fit, including ways that might deeply offend the very religious people trying to assert state power to impose their beliefs on others.  

So I put this to the opponents of abortion: Make up your minds, Body Snatchers - would you rather the state had the power to stop an abortion if that meant it also had the power to force one, to sterilize people, or to forcibly impregnate the unwilling whose genes they consider useful, or does the state have none of these authorities?  You don't get to have a government whose authority starts and stops at your convenience, that exists merely to enforce your prejudices and superstitions on others.

If you have the right to force others to carry pregnancies against their will through the power of government, they have the right to use the same power to have you sterilized against yours.  Is that a bargain you would be willing to make, Mr. and Mrs. Bomb-thrower?

Extended (Optional)

Originally posted to Troubadour on Sun Mar 03, 2013 at 08:09 AM PST.

Also republished by Sex, Body, and Gender, Abortion, and Pro Choice.

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