On Tuesday, November 07, 2023, the people of Ohio voted by a margin of 57% to 43% to enshrine the right to abortion in their state constitution. What does this act mean? First, let me be clear right up front: A state possesses no power to transform an immoral activity into a moral one. A state can declare that black is white, up is down, evil is good but it cannot make them so. And a person may engage in an activity that incurs no guilt according to legislated law—or even garners praise—but that incurs profound guilt according to moral law and condemnation according to God’s law. Abortion is profoundly immoral, irresponsible, and sinful. And no rationalization can justify it. But Ohio declared it to be a constitutionally protected right. And that makes it so; that is, it really does make it a constitutionally protected right. But to make use of that humanly invented right is as immoral and sinful today as it has always been. And the divine Judge does not care in the least what the constitution of the State of Ohio asserts.
Why a Constitutional Right?
I am sure I am oversimplifying it. But I see a difference between activities that a state declares (1) illegal (2) obligatory, (3) matters of positive right, and (4) matters it leaves unregulated. In a just state, the legislative authority makes illegal only those activities it considers seriously deleterious to the common good (e.g., armed robbery) or obligatory only those activities it considers necessary to the common good (e.g., paying taxes). The state leaves the vast majority of life’s activities unregulated (4). To leave an area unregulated assumes that no serious threat to the common good is at stake one way or another. Or, another way to put it is that leaving certain areas unregulated is itself advantageous to the common good.
But what about (3) positive rights? If the State of Ohio did not want to make the immoral act of abortion illegal, it could have left it unregulated or regulated it within specific limits. Instead, however, it made abortion a positive right. What does giving abortion this particular legal status say about the State of Ohio’s understanding of abortion in relation to the common good? A positive right is a freedom for a certain activity that a person may make use of or not. Like activities the state leaves unregulated, engaging in the privileged activity is left to individual discretion. Moreover, it is assumed not to damage the common good. But unlike unregulated activities, it is specifically named. Naming a right—rather than lumping it in with other unregulated activities—indicates that protecting this right has been recognized as of great value to the common good. Making it a constitutional right reinforces this conclusion. For no state legislature can make a legitimate law contravening the constitution of that state. Think of other positive rights: freedom of religion, assembly, and speech. These rights must be protected because their exercise enhances the common good.
How does exercising the constitutional right to abortion enhance the common good in analogy to exercising speech, religion, or assembly? Do fifty-seven percent of the people of Ohio believe that aborting a child is a good thing? Perhaps fifty-seven percent of the people of Ohio are utilitarian in their ethics and think that limiting population or reducing poverty by way of abortion is a good thing. (Utilitarianism asserts that whatever produces the most good for the greatest number is also good.) But I doubt that very many of the good people of Ohio are self-conscious utilitarians. I don’t think Ohioans, believing that abortion itself is a good thing, wanted to maximize the number of abortions in their state. What, then, is the good the fifty-seven percent see produced by their action? I think they take the freedom to choose as such, without regard to what you choose, as a higher good than minimizing the number of children aborted. Apparently, they were willing to make that trade, which is a very Utilitarian thing to do! What they may have lost sight of is that exercising freedom in an immoral act is itself an immoral act. And freely cooperating to grant a positive right to commit what you know is an immoral act (as opposed to leaving areas unregulated) is itself an immoral act.
ifaqtheology 
Something you do not mention in this article, but which bears mentioning, is that including a positive right in the constitution changes the threshold for making subsequent regulations. It makes it more difficult for a group of citizens to come along later and impose regulation on that right. This was, in part, the reason the Bill of Rights was added to the US constitution. And it was, presumably, at least partly the reason for the way voting went in Ohio on the abortion issue.
What many discussions of abortion fail to take into account, and what this article also fails to take into account, is that there are situations that sometimes arise in the course of pregnancy that make abortion medically advisable. The one I am personally most familiar with is fetal anencephaly. These are cruel situations, which would be made worse by a prohibition of all abortion for all reasons. At a minimum, discourse on abortion ought to be informed by the knowledge that these situations arise.
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Hello HAT,
Of course we can most of us think of unusual examples to this debate ( which incidentally, the main issue Ron enunciates is that for this State in question- that particular debate is over and somewhat iced with “let no man change or alter these ‘holy’ words” sealed). But is it God’s seal?
A woman is gang-raped and left in a coma, but nowhere in natural law would she be kept on life support for the sake of an unborn child. But nonetheless, i do not judge what best medical and eccumenical advice may be postured in specific cases… Legislature can never accomodate special or extraordinary cases, and thus, you will find in every bicarmel house of representatives there is a ” supreme overule” court. Across the democratic world, that admits and permits ” on this occasion, ‘we’ were wrong”!
Before i go, indulge this piece of scripture for one moment “All lies are wrong”. Over millennia, holy men and philosophers, great thinkers and students have thought up exceptions to this tenet, for one reason or another (myself included). But really, if you think hard, in piety, and with a knowledge of the sovereignty of God, you WILL discover that without exception, “all lies are wrong”. If someone really feels that the life & soul of an unborn child is within their power, then they lie to themself. If a nation’s constitution admits to being under God, then this should be paramount. The extent to which individual states pick and chose is for their consiences’ (or 57% of it).
Finally, the point at which God places a soul inside the being of the being of his creation is at issue here. Scripture tells us, this point is when the “foetus is recognizable”.
I let God decide about souls, and medicine decide about a human form formed; as for myself, with both skillsets, i can only compromise, and above all do as my love of God and humanity bids me. And then indeed, as scripture reminds me… “to choose life”.
The Lord guide us.
JS (Dr)
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HAT: Thank you for reading my essay. My essay consists of around 800 words, so I am not surprised that you found some things missing or not treated in depth. In my experience of reading ethics books and in taking and teaching ethics courses, I’ve noticed that writers, teachers, and students get so sidetracked by exceptions, borderline cases, and exploration of consequences that in the end, everyone is left to do as they please. Jesus dealt with this attitude in Matthew 15. “Honor your father and mother,” says the law. The Pharisees found a way around that unconditional law by using the idea of Corban, designating the funds they should have used to support their aged parents as a gift to God. Also, writers, teachers and students don’t seem to be able to distinguish between legality and morality. I wanted to state the distinction clearly. I hope I did that in this essay.
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You did make the distinction well!
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Thank you, Professor Highfield, I appreciate that. And I can see your point about exceptions, borderline cases, and so on. Although in the case of abortion, the situation in which a choice has to be made between mother and child (or “child”, for those who prefer to think that way) is the central issue. The question is always, really, at what point, if ever, does the ethical imperative tip in favor of the mother?
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I have a student in class this fall whose mother was diagnosed with breast cancer while 3 months pregnant. The doctors urged her to get an abortion. She refused and carried my student to term. The mother endured chemotherapy while pregnant. My student survived and her mother is alive and well today.
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Amen a thousand times over!!!
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Hi Ron.
There is, in fact a lot in context 1 Cor 10:13. About this topic-
If we read the in-depth references for Strong’s 3985 peraizo, πειράζω.
We can see that it is not so much ‘to tempt, to evil or do wrong’ but moreover, ‘to test, to proof’ and to be proven by suffering. There are few, if any Christian parents that would not give their life for a child. Esp mums.
The analogy is that Isaac might well have chosen a terrible sarifice, but as St Paul teaches above, God provided an immediate ‘out’ for faithful goodness.
Your own personal example re your student, Ron, is a beautiful example of this!
Thank you again.
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