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.