Here’s a constitutional argument regarding abortion that’s designed to make all the right (and left) people angry.
Suppose for argument’s sake that a embryo or fetus is a legally and constitutionally relevant life. (I say “relevant” to distinguish it from all the irrelevant forms of life, such as sperm, unfertilized eggs, cockroaches, etc.)
The 13th Amendment bans involuntary servitude, effectively making all citizens self-owners. People’s bodies are their property. The 14th Amendment assures that no citizen can be deprived of “life, liberty, or property, without due process of law.” The ability to decide the use of your body is surely a liberty interest, but given my point above, it is also a property interest. What due process is required for the deprivation of a property interest? The 5th Amendment’s Takings Clause specifies that private property “shall [not] be taken for public use without just compensation.”
By my interpretation, then, the 5th, 13th, and 14th Amendments together guarantee that if a woman is required by law to carry a child to term (when she would not otherwise have done so), she must be paid compensation for the use of her bodily property. After all, the state would be forcing her to use her property for a purpose the state has deemed important – specifically, the harboring of an embryo/fetus. If a woman’s house were claimed by eminent domain and used as housing for the poor, even if only on a temporary basis, compensation would surely be required. The same argumentation applies to the use of her womb.
But let’s take the argument one step further. In the case of Kelo v. New London, currently being considered by the Supreme Court, many defenders of strong private property rights (including many conservatives as well as Agoraphilia’s own Tom W. Bell) argue that “public use” should actually mean “use by the public,” not just use by a particular individual or privileged group. If the state took a woman’s house and handed it over to a private housing developer, that wouldn’t constitute public use, and hence the taking would be barred (so compensation never becomes the issue). Similarly, an anti-abortion law does not appropriate a woman’s womb for use by the general public, but for use by just one individual – the embryo/fetus in question.
Given these arguments, the conclusion is clear: anti-abortion laws violate the Takings Clause. And even if you don’t buy the property defenders’ argument in Kelo, an anti-abortion law would still have to provide compensation to mothers forced to bear children.
(An aside: Some argue that a strict textualist reading of the Takings Clause would actually allow takings for private use without compensation. Read Tom’s post with accompanying comments, linked above, for one response to that argument. Read Michael Rappaport for some other responses. Most of the responses rely on interaction of that clause with provisions elsewhere in the constitution.)
(A second aside: Before anyone points this out, I realize my argument isn’t unprecedented among libertarians; specifically, Judith Jarvis Thomson made a philosophical, as opposed to constitutional, defense of abortion rights along basically the same lines.)