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Jewish World Review July 26, 2001 / 6 Menachem-Av, 5761

David Limbaugh

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Consumer Reports

Legislating morality is not taboo -- SOME people are pro-choice on the abortion issue because they believe that government should have no say in the matter. I disagree.

Don't get me wrong: I also disagree with the notion that the mother's so-called right to privacy justifies her right to choose abortion. But I want to focus on the flawed argument that the government has no business "legislating morality."

First, I'm not saying that under the Constitution the federal government has the power to outlaw abortion. I believe that since the Constitution is silent on the matter, absent a Constitutional amendment, the matter ought to be decided by the individual states.

But those arguing against the government "legislating morality" are probably opposed to government at any level making these decisions. What do they mean when they say that the government shouldn't legislate morality? Aren't they really saying that as long as a person does not harm someone else he ought to be able to do anything he pleases and the government should stay out of his private affairs?

Those who advocate legalizing drugs make this very argument. The government shouldn't interfere with individual behavior even of the self-destructive type, as long as no one else is directly harmed. Because most people do not live in a vacuum vis-Ó-vis the public (Howard Hughes' types excepted), I don't buy the argument that individual drug use is solely a private matter. But abortion is even less so.

The only way to claim that abortion is a private matter is to deny that the unborn is a human being. It's one thing to argue that the mother's right to abort is superior to the unborn's right to live. But if the unborn is a human being, then killing it is not a private matter.

And those who acknowledge uncertainty as to whether the unborn is a human being are fooling themselves when they maintain that abortion is a private matter. If they can't be sure the unborn is not human, they can't be sure that killing it/him/her is a private matter. Yet, I've heard some people say, "I don't know or care if an unborn is a human being, the government has no business interfering with the private decisions (freedom) of the mother."

But some anti-government pro-choicers mean something else when they say the government shouldn't legislate morality, as illustrated by a recent e-mail I received. The e-mailer didn't rely on the mother's right to privacy as guaranteeing the mother's right to abort, at least during the early stages of pregnancy.

Rather, he asserted that the First Amendment Establishment clause (which he erroneously referred to as the mandated separation of church and state) precluded the government from outlawing abortion in the early stages of pregnancy.

He said that since our society considers brain death actual death, then we must concede that brain activity and the capacity for cognition and self-awareness are essential to personhood. As such, "an argument may be reasonably made that a cell/blastocyst/embryo is not a person in the legal sense ... When you get to the stage of the fetus, and the development of the cortex, you then get brain activity, and the argument for personhood becomes much more compelling."

Believing that he'd established this point, the e-mailer went on to say that since the pre-fetal unborn is not a person then the only justification for protecting it is the spiritual belief that the soul inhabits "the cell" at the moment of conception. Since that is by definition a religious/moral determination, the government is precluded, on First Amendment grounds of separation of church and state, from outlawing these pre-fetal abortions. So by "legislating morality," this e-mailer meant "legislating spirituality."

The e-mailer is wrong. Our national, state and local governments have "legislated morality" since the inception of this country with the full blessing of the framers of the Constitution. Almost all of our criminal laws and many of our civil ones are (and should be) based on moral judgments, such as those embodied in the Ten Commandments and elsewhere in Scripture. This entire body of law, based on moral and spiritual judgments, was ratified by our founding fathers as they drafted and adopted the First Amendment. They knew there was no conflict.

I dare say that some people then, as now, disagreed with many of these laws on moral grounds. But it is a gross revision of history, and frankly absurd, to argue that the framers meant to preclude the government from passing laws that had their roots in moral and spiritual beliefs.

David Limbaugh, a columnist and attorney a practicing in Cape Girardeau, Mo., is the author of the just-released exposÚ about corruption in the Clinton-Reno Justice Department, "Absolute Power." Send your comments to him by clicking here.