In Contempt of the Constitution

Nearly one month ago I argued on this page that every Harvard student--not to mention every parent who pays a tuition bill--should know of his or her right not to participate in subsidizing abortions through University Health Services (UHS). I assumed this was as uncontroversial an argument as anyone could make at this University. But a flurry of acrid letters to the editor proved my assumption wrong. The most indignant of these respondents wanted to abolish the right I had advertised and interpreted the right of a woman to choose an abortion as the virtual right of a woman to force pro-lifers to pay for her elective abortions. These reactions, like UHS's abortion policy itself, are contemptuous of our basic constitutional principles and of the priorities of our University.

The right of a woman to choose an abortion is nowhere in the actual text of our Constitution; it was found by the Supreme Court in a constitutional "penumbra" known as the right of privacy, which was first established to protect the use of birth control. But the Constitution explicitly and augustly ratifies "free exercise" of religion and "freedom of speech" in the First Amendment. A religiously-inspired refusal to help pay for elective abortions is an exercise of religion, and a denial by government of an exemption must survive "strict scrutiny," which is the same standard applied to state-sanctioned racial discrimination.

The refusal to pay for elective abortions also falls within the immediate penumbra of the free-speech right not to be forced to, as Supreme Court justices proclaimed, "confess by word or act" any particular view of "politics, nationalism, religion or other matter of opinion." The Supreme Court has protected under this aspect of free speech a Jehovah's Witness's refusal to salute the American flag and a refusal to carry a license plate with a libertarian state motto.

Of course, Harvard is not directly constrained by the Constitution. But Harvard students and faculty owe a special, zealous allegiance to the First Amendment, which epitomizes the liberal values that Harvard aspires to preserve above all others. So it is shocking when Harvard students say that the free exercise of religion and the freedom of speech must take back seats to other values of dubious significance, such as "a sense of community" or an extremely broad notion of a woman's right to a legal abortion.

Anyone who says otherwise, such students might claim, is a moral prig. Somehow the rights emanating from the fact that human beings occasionally engage in sexual intercourse have trumped the rights emanating the fact that human beings possess minds and consciences. This is not compatible with the spirit of the Constitution, and it is surely not consonant with the purpose of this University.

One should be shocked at Harvard's official behavior as well. Because the UHS policy uses student money to subsidize elective abortions by default and with suspiciously inadequate notice, Harvard officially favors the exercise of the right to abortion over the exercise of First Amendment rights. This is a perversion of the University's priorities. Harvard should correct it by at least making the choice not to help pay for elective abortions as intelligible and accessible to students as the choice to help pay for elective abortions. And since UHS says that the abortion subsidy amounts to only "a few pennies" per person, Harvard can well afford to protect liberal First Amendment values by shifting miniscule amounts of financial responsibility for abortions over to the alleged majority of Harvard students who have no objection to paying for them. Daniel H. Choi'94 is a second year student at the Law School and a Ph.D. candidate in the Government Department.