It is startling to realize that the looming battle for the Supreme Court hinges on whether nominees will pledge their support for the utterly irrational demand to suspend the law of cause and effect. For that is what the claim that we have a constitutional right to ?reproductive freedom? amounts to. All Americans are entitled to have the cause, namely, unlimited sexual activity, without ever experiencing the effect, namely, a live baby. To see the absurdity of this claim, try out a couple of analogies.
Consider eating, for instance. We can all agree that eating is a good and necessary thing, that everyone is entitled to eat. We might even agree that gourmet eating is one of life?s great pleasures. We would not conclude that everyone has a constitutional right to eat as much as they want, without ever getting heart disease, high blood pressure or other natural consequences of overeating. We could not coherently claim that every person has a constitutional right to eat without getting fat, and call it ?gastronomical freedom.? (Although, considering the number of overweight people waddling around America, maybe people do think they have such an entitlement.)
Likewise, no one is entitled to eat as little as possible, with a guarantee that they will never succumb to anorexia. You are free to purge yourself after every meal, but you are going to create a whole string of negative consequences for yourself. The state can not reasonably promise to suspend the laws of cause and effect to provide its citizens with the gastronomical self-determination that would allow them to eat or not eat, as much or as little as they want, without any negative consequences.
This is not an ideological argument, because it does not depend on any particular view of the proper role of the state, and the proper scope of its guarantees. Advocates of the welfare state might well argue that everyone has a right to food, at state expense if necessary. It does not logically follow from this that everyone has a right to eat nothing but butter and never get heart disease. Advocates of more minimal government might argue that people have every right to such food as they can obtain through fair market exchanges and gifts. But no libertarian would claim that people have a right to eat without consequences. No legislator in his right mind would attempt to pass a law guaranteeing such a thing. The very idea is reminiscent of a state legislature?s notorious attempt to pass a law declaring the value of ?pi? to be an even 3, rather than that irrational number with lots of pesky decimal places.
We don?t usually think of freedom as the right to suspend the laws of cause and effect in order to obtain what we want. We don?t think of freedom of movement as meaning the right to jump off the Golden Gate Bridge and not die. Freedom of assembly doesn?t mean an entitlement for an entire fraternity to actually fit inside a telephone booth, however much they might enjoy trying. Freedom of speech can?t mean the right to shoot off our mouths any time we want, and still have friends. No court of law could grant such a right.
Nor do sensible people think of freedom as the equivalent of ?being in possession of all good things.? Central heating and air conditioning are wonderful inventions that have greatly improved people?s comfort and well-being. That doesn?t mean that being without air conditioning is a deprivation of freedom. It is an inconvenience if the central heat goes out, but it is not the equivalent of slavery. You may regard contraceptive devices as the greatest things since sliced bread. That doesn?t mean freedom means using them without failure. You may think that low-cost abortion is on balance, a good thing. That doesn?t mean women are slaves if they must bear some costs associated with abortion.
Reproductive freedom is different in kind from the more basic economic and political freedoms. These older freedoms guarantee that people have the opportunity to participate in the economic and political systems under a set of transparent rules that apply to everyone. Political and economic freedoms are not guarantees of getting the particular outcomes we want.
Economic liberty doesn?t mean the right to succeed in business, only the right to try. And economic freedom certainly doesn?t mean that we are entitled to have the job we want, at the wages we want, whether or not we show up for work. Implicit in the notion of economic freedom is the individual?s responsibility to play by the rules of the marketplace.
We don?t think of political freedom as the right to have our preferred candidates always win elections, only that they have a right to compete in any election. It simply can?t be that I am unfree if my candidate doesn?t win, or if my policies are not enacted. Losing an election does not make me unfree.
Legal scholars will argue that the right to privacy upon which Roe v. Wade depends exists nowhere in the Constitution. I go one step further: the concept of ?reproductive freedom? which Roe attempts to establish is incoherent. It truly is irrational to insist that nominees to the Supreme Court their allegiance to the doctrine of abortion on demand.