Abortion just elbowed its way to the forefront of politics. In early May, Josh Gerstein and Alexander Ward wrote on Politico that the Supreme Court of the United States had voted to overturn Roe v. Wade. They referenced a leaked draft ruling by Justice Samuel Alito writing for the majority of the court, laying out the reasons.
Gerstein and Ward wrote, “The draft opinion is a full-throated, unflinching repudiation of the 1973 decision which guaranteed federal constitutional protections of abortion rights…”. (Supreme Court has voted to overturn abortion rights, draft opinion shows, 2 May 2022). Alito wrote this opinion in the case of Thomas Dobbs v Jackson Women’s Health Organization, No. 19-1502, with the evident intention of crushing Roe and its reaffirmation in Planned Parenthood of Southeastern Pa. v. Casey (1992).
After reading Alito’s document (confirmed as authentic by Chief Justice John Roberts), it is clear it contains the seeds of its own destruction.
I don’t have better ability to read the future than any other person, and I am frequently surprised by the turn of events. But I believe and fervently hope that there will come in that future a new majority on the Supreme Court that will overturn this decision, in its turn.
As soon as a pro-Roe majority takes over the Court, someone will bring a new case to the Court challenging Dobbs, and the Court will reverse this decision. That’s because this ruling is premised on a falsehood: that a fetus is a human being.
Roe's defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called “fetal life” and what the law now before us describes as an “unborn human being”.
[Alito’s Draft, p 5]
The claims that a fetus is an “unborn human being”, that abortions kill “unborn children”, and (in its more incendiary formulation) that abortions murder “unborn babies” are false. There’s no reason to believe this nonsense, but the law challenged in Dobbs seeks to outlaw abortions on the premise that abortions kill these theoretical humans.
The law at issue in this case, Mississippi's Gestational Age Act, see Miss. Code Ann. §41-41-191, contains this central provision: “Except in a medical emergency or in the case of a severe fetal abnormality, a person shall not intentionally or knowingly perform or induce an abortion of an unborn human being if the probable gestational age of the unborn human being has been determined to be greater than fifteen (15) weeks.”
To support this Act, the legislature made a series of factual findings. It began by noting that, at the time of enactment, only six countries besides the United States “permit[ted] non-therapeutic or elective abortion-on-demand after the twentieth week of gestation.” The legislature then found that at five or six weeks’ gestational age an “unborn human beings heart begins beating;” at eight weeks the “unborn human being begins to move in the womb;” at nine weeks “all basic physiological functions are present;” at ten weeks “vital organs begin to function,” and “[h]air, fingernails, and toenails begin to form;” at eleven weeks “an unborn human beings diaphragm is developing,” and he or she “may move about freely in the womb;" and at twelve weeks the “unborn human being” has “taken on the human form in all relevant respects.” … It found that most abortions after fifteen weeks employ “dilation and evacuation procedures which involve the use of surgical instruments to crush and tear the unborn child,” and it concluded that the “intentional commitment of such acts for non-therapeutic or elective reasons is a barbaric practice, dangerous for the maternal patient, and demeaning to the medical profession.”
[Alito’s Draft, pp 6-7, section indications omitted]
None of these characteristics of a human fetus are unique to humans. Every living mammal has a heart beat, functioning internal organs, hair, fingernails, toenails, muscle movement, and everything else mentioned here. We don’t count them as humans because we believe humans have something else: a special form of consciousness I’ll call “sentience”.
The entire theory that killing a human is murder is founded on the premise that other humans have the kinds of mental life that we (humans) do. We abhor killing a being that has the kind of feelings we have, the complex understandings and interactions with the world we have, the motives, desires, and desire for life, we have. Beings that have sapience (self-knowledge, interconnectedness, conditioned origination of mind-states, and other deeper understandings of subjective experience). (See Sapience in Wikipedia.) Beings that understand theory of mind: the ability to understand the states of mind of others.
In the modern world, this is often called sentience, but not in the narrow sense of the term’s origin among philosophers in the Fifteenth Century, where it just meant the ability to sense the world around us and feel things. So, I’m going to use sentience in the modern sense, to include all the special capabilities of the human mind that we believe make it murder to kill another human.
In doing this, I’m not saying that adult humans are the only sentient beings on the planet. (Or, elsewhere, for that matter). Many mammals and even non-mammals like octopus show evidence of sentience. But a fetus? What’s the evidence a fetus is sentient, especially early in pregnancy?
There’s some evidence a fetus becomes sentient, in this sense, in the third trimester, that is, around week 27. The list of characteristics in Mississippi’s law have nothing to do with sentience. They are generally signs of a living animal. If this opinion outlaws abortion, shouldn’t it also outlaw the slaughter of livestock? If a mammal with a heartbeat is a person, then killing a steer is murder.
If the law tried to regulate abortion (sensibly) in the third trimester, then it would have some logical basis. But when it seeks to outlaw abortion at all stages of pregnancy based on theoretical human beings, then it has no foundation.
Or, if it merely sought to prevent suffering of the fetus during abortion in the same way we insist (where we can) on humane means of killing livestock, then that would be a point of discussion.
That’s not what the Alito argument proposes. A ruling on abortion should be based on facts and reasoned argument. That’s what we should expect of the Supreme Court.
But we can’t expect that from this Court. This Court has been brainwashed by the anti-abortion movement. That entire movement is based on a lie. It is a political movement, and it uses the idea that a fetus is some tiny human, to get people to believe they should oppose it as a form of murder. It does that to con people out of their money. It tells them a fetus is an “unborn human being”. This is false.
The Alito draft actually contains a brief discussion of sentience, but in the context of criticizing Roe. It quotes this section of Roe:
With respect to the State's important and legitimate interest in potential life, the “compelling” point is at viability. This is so because the fetus then presumably has the capability of meaningful lie outside the womb. Roe, 410 U.S., at 163.
[Alito’s Draft, p 46]
Alito goes on to say:
This arbitrary line has not found much support among philosophers and ethicists who have attempted to justify a right to abortion. Some have argued that a fetus should not be entitled to legal protection until it acquires the characteristics that they regard as defining what it means to be a “person.” Among the characteristics that have been offered as essential attributes of “personhood” are sentience, self-awareness, the ability to reason, or some combination thereof.” By this logic, it would be an open question whether even born individuals, including young children or those afflicted with certain developmental or medical conditions, merit protection as “persons.” But even if one takes the view that “personhood” begins when a certain attribute or combination of attributes is acquired, it is very hard to see why viability should mark the point where “personhood” begins.
[Alito’s Draft, p 47, underline mine]
This is where I’ve previously criticized Roe. I never believed viability was the correct standard, precisely because it doesn’t distinguish between when a fetus is sentient and not sentient. A correct decision on whether an abortion should be legal, overall, should rest on whether it is a form of murder, and that, in turn, rests on whether the entity killed is sentient.
But this Court is glib about how using this standard might lead to difficult questions about whether born individuals should be given legal protection as “persons”. Yes, that’s a difficult question. That’s what we pay Supreme Court Justices to decide: difficult questions. This Court isn’t even up to deciding this somewhat difficult question.
What’s clear, however, is that this Court is accepting, without evidence or reasoning, that all fetuses are “unborn humans”, and what’s likely is that this Court is accepting that because it wants to get to a particular result. In other words, it appears the Court is lying to us. It appears that Alito, and any of his band that are signing on to this ruling, are doing so because they plan to lie to the American people that all fetuses are humans and therefore abortion is a form of murder.
But once the Court is cleared of abortion ideologues, the way will be open to attack this decision based on fact. Fact: A fetus in early pregnancy is not sentient. Fact: It doesn’t gain sentience until late in pregnancy. Fact: Murder is only possible if it is the killing of a sentient being.
Fact: When a state outlaws abortion pre-sentience, it is interfering with the right of the mother to control her own body.
Is this a constitutional right? Let’s see.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
[Constitution, Amendment IX]
Alito argues that Americans don’t have a right to privacy.
Roe, however, was remarkably loose in its treatment of the constitutional text. It held that the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned.
[Alito’s Draft, p 9]
Let’s say I hit Samuel Alito with a big club. That would be illegal. But would it be wrong?
Why can’t we just hit anyone we want? We believe they have a right to control their own bodies. We recognize other humans as sentient beings, so we afford them control over their own bodies, as long as they recognize that right for others. Otherwise, we could just beat them until they did what we want.
I’m willing to bet Alito believes he has the right to control his own body. But is he willing to afford that right to others? Is he willing to recognize their right to control their own bodies? If so, why doesn’t that right extend to those who are pregnant?
Alito then complains:
These attempts to justify abortion through appeals to a broader right to autonomy and to define one's “concept of existence” prove too much. Casey, 505 U. S., at 851. Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like.
[Alito’s Draft, p 32]
And your point is? Actually, the Constitution does not give the federal government the power to make drugs illegal. There’s certainly the over-broad application of the Commerce Clause to justify abuse of police power, but on the same basis that I can’t just go club Alito, because he should have control of his own body, each person has a right to inject, ingest, or inhale whatever they like. It’s just a fundamental right to privacy. When we mess with it, we get the horrors of the war on drug addicts, which has caused society extreme harm. When you do something wrong, you get a bad result. Stepping on the right to privacy has caused this country untold harm, because the invasion of privacy is wrong.
Does Justice Alito have a right to keep his bank accounts secret? Why? Isn’t that just a right to privacy? If he claims he doesn’t have that right to privacy, let him just send me all his banking information. Institutions, account numbers, passwords—send it all. What’s your objection, Sir? Oh, I see. You claim to have a right to privacy.
Could a state decide to forbid these Justices the right to their own surgical procedures? Suppose one of them wanted a face lift. Could a state decide that they just had to suffer with the face they have now?
Can states prohibit vasectomies? After all, the point of outlawing abortion is to generate as many children as possible. But suppose a man didn’t want children. He doesn’t want to pay for them or raise them. How far can a state intrude into the privacy of its citizens?
Privacy is a right reserved to the people. Without it, we would not have a free society. It’s this fundamental respect for the rights of others that distinguishes the U.S. from autocratic nations. Giving up the right to privacy would be un-American.
There are a lot of rights that are not specifically mentioned in the Constitution. The Constitution does not guarantee a personal right to have a gun. It guarantees the right to keep and bear arms to militias, not individuals. If we are going to claim the Court cannot make inferences that citizens have rights, even though they are not specifically enumerated, then there goes the personal right to have a firearm. Because, what’s sauce for the goose is sauce for the gander.
Of course, this notion that a right has to be specifically spelled out runs afoul of the Constitution itself. “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
The Court needs to recognize the obvious right of citizens to control their own bodies. We make the exception where that person is doing something that interferes with the rights of others. We don’t allow this control to extend to shooting another person dead. But when someone isn’t interfering in the rights of another person, we leave them alone.
And a fetus is not another person.
Is abortion murder?
Is abortion murder?
Yes, it always kills an unborn human being.
Yes, it can kill an unborn human being.
Maybe, if it’s performed late in pregnancy.
No, it’s killing a fetus, not a human being.