In response to Richard Cohen’s article, “Support Choice, Not Roe,” in October 20’s Washington Post
Dear Mr. Cohen,
Thank you for your thoughtful piece on abortion, privacy and Roe. I share your concern that abortion is about much more than privacy. The Douglas opinion is tortured to say the least. I have always thought that Goldberg’s concurring opinion, where he talks about the Ninth Amendment which states that there are other rights reserved to the people in addition to those mentioned in the Bill of Rights, was a better opinion. What might those rights be and how do we divine them? For instance, is the pursuit of happiness one of them? It is mentioned in our Declaration of Independence but not in the Bill of Rights—an unimaginable omission until one realizes that the Ninth Amendment actually means something.
I would submit that decisions about human reproduction are among the rights reserved to the people. It might be debatable whether Madison even thought about this, but birth control and abortion (at least pre-quickening) were legal in 1776 and 1789.
You mention that Supreme Court decisions should be based on clear logic and up-to-date science. I agree. Griswold and Roe were ahead of the science. The whole field of Evolutionary Biology was in its infancy in 1965 and 1973. Now we know so much more about human reproduction and the role of human evolution in our childbearing. I set out all the science and my new argument for reproductive freedom in my book, Beyond Choice: Reproductive Freedom in the 21st Century.
The issue is, does society set the rules for human reproduction or do each of us reproduce as we think best. With abortion, is it better for humanity, for society, to set a rule that every pregnancy should result in childbirth? The science says no.
Now, how do we get there? Do we let each state decide this (your view) or do we say that a decision of this sort is beyond the purview of the states and reserved to the people? Is a power of this sort vested in our government what we signed on for when our government was created? We created a limited government for good reason. Freedom to reproduce on one’s own terms is just one good reason why this matter should not be left to the whim of where you live.