From Roe to Dobbs, to the recently attempted pro-life Kentucky Constitutional Amendment, to the EMW Surgical Center case, the question that is asked over and over is: “Does a woman have a Constitutional right to an abortion?”
The scientific and legal reality that an abortion destroys another human life necessarily opens the door to the follow-on question: “Does a baby in a mother’s womb have a Constitutional right to life?” But few seem willing to ask this and by failing to do so, we miss the more fundamental legal question and the higher moral question.
During the EMW Surgical Center case at the Kentucky Supreme Court it was even suggested that the Kentucky Constitution is neutral on abortion, which I do not believe is true. The Kentucky Constitution includes the right to life for all of us, including the fundamental right to life for babies in the womb.
In the Kentucky Constitution (Preamble, Bill of Rights, Section 1) the first “inherent and inalienable right” listed for all people is: “The right of enjoying and defending their lives and liberties.” We cannot evaluate “liberties” without defending the “lives” of those involved.
This fundamental Constitutional right to life in our Kentucky Constitution (Bill or Rights Section 1) and in the U.S. Constitution (Amendments 5 and 14) should not be violated by a law allowing abortion, unless that law addresses a compelling state interest, and the least restrictive alternative is applied—such as when the mother’s life is at risk.
Applying existing legal concepts, such as self-defense, or the compelling interest test discussed above, allows the doctor to work with the mother, as they do with any such life-threatening situation, to protect human life. Doctors must use their best professional judgment, working with their patients on a case-by-case basis. As with any case, and as with any medical professional, decisions are open to review and possible legal challenge when questions arise about whether appropriate care was given.
In Dobbs, the U.S. Supreme Court recognized there is no right to abortion in the U.S. Constitution. What is in both the Kentucky Constitution and the U.S. Constitution is that a baby in the womb, as a human being, has a fundamental Constitutional right to life. It is time for us to make this bold case, it is the true moral and legal position.