Last night I wrote that liberals need to forcefully address the question of whether a fetus is a human life that deserves the same legal protections as any other human life. Primarily this is because it's the ground on which abortion opponents stand, so it can't be ignored. But it's also key to Alito's decision in Dobbs, something he mentions over and over:
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.”
....What sharply distinguishes the abortion right from the
rights recognized in the cases on which Roe and Casey rely
is something that both those decisions acknowledged: Abortion destroys what those decisions call “potential life” and what the law at issue in this case regards as the life of an “unborn human being.”...None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion. They are therefore inapposite.....It is impossible to defend Roe based on prior precedent because all of the precedents Roe cited, including Griswold and Eisenstadt, were critically different for a reason that we have explained: None of those cases involved the destruction of what Roe called “potential life.”
....The most striking feature of the dissent is the absence of any serious discussion of the legitimacy of the States’ interest in protecting fetal life.
Etc.
Alito claims that he's taking no position on the question of fetal life ("our decision is not based on any view about when a State should regard pre-natal life as having rights or legally cognizable interests") but it nonetheless pervades his opinion. In his view, it's the key thing that makes abortion a vitally local decision.
This reasoning doesn't do much for me. Courts hand down decisions all the time that affect human life either directly or indirectly. Regardless, Alito is right in thinking that most people consider the question of life to be the key to abortion politics. And thanks to Alito's opinion, it's now the key to abortion law as well.
Alito is indulging in sophistries. He is a case study in Dunning-Kruger. His legal "arguments" have been thoroughly eviscerated by the minority. In the end, Alito et al. don't need an argument, they just need five votes.
Apart from the human suffering that will result, the credibility of the SCOTUS is eroded. Like currency, the law only means something if enough people believe in it. When belief fails in either or both, civil society fails.
Abortion is necessary and in modern science, a tool to keep nature clean. It doesn't matter if the fetus is alive or not.
I never thought I'd see the day when Mexico would have more permissive abortion laws than much of the US. The pro-choice movement is making significant strides in Argentina, Chile and other parts of Latin America. I find that interesting, since Latin America is predominantly Roman Catholic. Although evangelicals make the most noise, it was five conservative Catholics who killed Roe (Gorsuch was raised Catholic, but converted to the Anglican Church while in Britain and eventually became an Episcopalian).
Perhaps we should look to Latin America for clues on how to defeat the creeping Falangism that is threatening our personal freedoms.
Two things to keep in mind:
1. In the US there seems to be a very strong alignment on the right between various Christian denominations which in other countries usually don't exist, so it really doesn't matter if they are Evangelicals, or Catholics, in the end what they want is a political landscape that is dominated by a hard right version of Christianity regardless of denomination.
2. Precisely because the power the Catholic church had over the Spanish colonies that make up Latin America, many countries including Mexico set very explicit bans on religious leaders and churches getting involved in politics or discussing politics from the pulpit, so churches regardless of denomination have far less influence on politicians than they do in the US.
Re #2: Not disimilar to the prevailing attitude in Quebec and indeed in France.
The left really specializes in creating euphemisms. In the case of abortion, it's things like "choice" and "bodily autonomy" and etc. The theory seems to be that if you avoid the real issue by fooling people into adopting a certain "vocabulary," you can win. But it never works. In this case, the question is simply: when does a fertilized egg become a human being. According to the Catholic Church, that's at the moment of conception, at which point something called a "soul" enters the embryo. And now many other Christian denominations have adopted that position.
My point is that there is no amount of protest, persuasion, or clever manipulating of words that can conquer that position. As Kevin says, those who support abortion rights have to have the courage to just say "I don't agree with that." But too many on the left would prefer to use the distraction tactic of reframing language, hoping that voters won't notice.
It does. not. work.
You mean like calling pro-force birth "pro-life?" Oh wait, that's the right-wing extremists.
But go ahead hypocritically flogging the "left" (as defined by the GOP).
Forced-birth? Maternal mortality?
'Pro-life' yet has more death?
As Kevin says, those who support abortion rights have to have the courage to just say "I don't agree with that.
No. Those who support abortion rights most certainly do not "have to" indicate agreement or disagreement with the hard right's theological preoccupations. I don't care about their private morality. And neither should you.
In fact, doing as Kevin suggests (if I understand him correctly) is a bad strategy from the perspective of electoral politics (but sure, knock yourself out on comment threads).
Far better to concentrate almost exclusively on the many unjust and frequently terrifying real world outcomes flowing from this decision (and the GOP rule that got us this decision).
I think Kevin is saying that Democrats should just say that the fetus is not a human being, rather than try to avoid the issue. I tend to agree with your last paragraph - concentrate on practical consequences. And don't stop with abortion - the Republican Court is coming after everything that is not right-wing.
I also think he's saying that. I'm saying this advice is wrong.
Does it make any sense to say that abortion is different because it involves life or potential life, and to declare it a local issue because of that? Whether fetuses as "potential life" should have civil rights ought to be a national issue if anything is.
Every stem cell in your body is potential life. We know this from many experiments.
Also too, sperm and eggs are potential life. To prevent their union is to block potential life.
Can we please stop with the sophistry already?
Was that an argument against what I wrote? If so, I don't get it.
It's not true that adult stem cells are potential life in the sense that they can potentially become human beings. Bone marrow stem cells can become red and white blood cells, skin stem cells can become the different types of skin cells, and so on, but they are are limited to becoming only a subset of the types of cells in a human body. Only fetal stem cells are totipotent in that sense.
Anyway, I'm only pointing out a conflict between two parts of Alito's opinion, not saying I agree with either one.
Exactly what Kevin is implying.
The main question is not whether the issue is "local" or "national", although Kevin has focused on that. It is whether the Supreme Court decides what is legal, which is what was done in Roe, or whether the issue should be decided by Congress and/or the states. Alito says that Roe was an overreach of Court power, and that the issue should be decided by the "people", really meaning Congress or state legislatures.
This is where the term "legal person" might be useful. As joel has noted, every cell in your body is "potential human life."
This would lead to a debate on when "personhood" occurs. and that would be painful and require more thought than just changing "Choice! Choice! Choice!" or coming up with more multiword, bloated expressions like "bodily autonomy."
We lefties have lost our grip on effective, visceral communication -- but the right wing hasn't. "Baby." "Kill." "Life." It's time to start using the same playbook, albeit honestly because we're lefties. Let's try working in "Freedom." "Rights." "Equal treatment." "Respect for religion."
How come only MEN get to have "freedom"? Why does only one restrive xtianist sect's concept of "life" get any respect? Why don't host organisms (aka "women") have any rights?
And let's not stink up the discussion with talk of "pregnant persons." Unless you can show me a few dozen pregnant men.
Actually, now I wonder about "legal personhood." If any commercial grouping that's organized for the purpose of making money is a "legal person", the term has already been rendered meaningless to human life.
And apologies for the long rant, above.
“How come only MEN get to have "freedom"? ”
They don’t. About half the fetuses that are aborted are/would be female. The court decision pretexts men and women equally.
I was speaking of freedom from unwanted pregnancy.
I think it's not smart or reasonable to engage on when "life" begins - the woman's body is hers to control. I found this a much more persuasive argument. Unless "pro life" people are ALSO advocating for corpses and live people to be able to be harvested, against their wills, to "save lives" their arguments are moot. Unless you feel that getting back to Roe is only attainable this way - the "life" argument should be nullified by choice and autonomy arguments. I think it's actually biblical (which shouldn't matter) and constitutionally stronger.
Yes, as I said in a previous comment liberals usually do not really face up to the question of when a fetus becomes a human being whose life must be protected. Kevin says a fetus is not a human being, which at least is being honest. But is this a politically winning position? If the fetus is not human at all, then presumably women could have abortions whenever they want, for any reason. But polls show that people do not think in these terms - the majority approves of Roe v Wade and they approve of some abortions but not necessarily all. Maybe they do not want to fully face up to the question themselves.
Roe v Wade actually decided the question in a kind of compromise, in a gradual way. Abortion can't be prohibited in the first trimester. This was partly based on the common law respecting "quickening". Then there can some regulation in the second trimester, and abortion can be completely banned in the third except for health of the mother (rape & incest not mentioned). So the fetus becomes a human step-by-step. How else could this be decided, exactly? Is the fetus a human the instant it is fully outside its mother's body, or when it takes first breath (there is some legal precedent for this)? Or does the mother have the moral and legal power to decide? How can Democrats come up with an actual logical and politically-winning position on these things, other than just to say Roe should stand?
The "compromise" was historically aligned to how the British observed "quickening" in pregnancy.
Historian come journalist Thomas DiBacco wrote about this in WaPo, back in '92.
(1) - https://bityl.co/Cvn5 page 111
(2) - https://bityl.co/Cvo4 paragraph 2
D_Ohrk
Thanks for bringing this up. IIRC "quickening" was thought to be when the mother first detected movement in her womb which in todays language was in the second trimester.
Abortions were "routinely" performed up until the "quickening time" -after that they were performed but only if the health of the mother and baby were at risk.
But the decision was not based upon legal, or moral grounds it was a doctor and a patient discussing the issue with the parent(s). There was no judgement made by society because the decision was medical at that point.
We seem to have politicized abortion so heavily that now it is morally reprehensible for anyone to have an abortion for any reason, at any time during a pregnancy.
The word "fetus" does not appear in the constitution.
True dat, and +1
No, no, no! We will never get anywhere arguing over when life begins. Maybe there are ten swing voters somewhere in the whole country who you can sway by arguing with them for the next ten years, but good luck. The only argument that has any traction is that this should be a private decision a woman may make on her own without government interference. Do we want the government deciding when men can get vasectomies, or use Viagra, or get hair implants? No. So why should the government get to tell a woman what healthcare she can or can't seek?
As far as when "life" begns, the ovum that became your mother was formerd and inside your grandmother when she was born.. Sperm, on the other hand, are made fresh every day. Fewer if the dude is wearing fashionably tight pants.
Sperm actually take about 3 months to make.
The question of when a fetus is a human life or when it will be viable is increasingly moot.
It won't be long before medical science will be able to bring any stage of fetal development to term inside or outside the womb, but they can't do it now.
In the meantime that threshold will keep being pushed back until every minute of a pregnancy will be called a late term abortion.
Focusing on the fetus is irrelevant.
The issue is the cost to the woman, her life and her family.
If I enslave someone to serve all my needs for nine months, and then kidnap them for two decades thereafter, would that be legal?
That's the only issue.
That's the position the fetus and the state that's forcing the fetus upon someone are in.
Will conservatives extract a condemned person's organs for transplant before their execution, because there's no reason why they need to die for the crimes of the dumb brain?
Or require organ donation in the event of death in any case?
Many lives could be saved with this policy.
And here I though Roe was a reasonable compromise. Silly me. As cld states above arguing about when a viable life begins is a losing proposition. I think we have to stress the result of this - victims of rape and incest will have to carry the baby to term, minors will have to carry the baby to term, pregnant women whose health is in danger will have to carry the baby to term, poor women who can ill afford to even go through a pregnancy will have to carry the baby to term, next they will go after birth control, etc.
Even if you grant the point that life begins at conception, the fetus had not traditionally received legal status nor was its viability the primary concern of the legal profession. The primary concern, of society, was the immorality of sex out of wedlock.
Predating the Constitution and the creation of the United States, laws criminalizing abortion were few and scattered, but generally used to dissuade prostitution and "illicit" sex. Prosecution of women who had attempted an abortion focused on their acts of sex rather than their attempted abortion.
In the mid-19th century, there was a flurry of activity on both sides of the pond to codify abortion as criminal (in the UK abortions were criminalized under Offences Against the Person Act 1861), but in doing so, framed it in moral terms. Horatio Robinson Storer, specifically, made clear that abortion was a moral issue, in subsequent reports from his (1867) AMA Committee on Criminal Abortions. As noted by the Blackmun decision, Storer's committed called "the attention of the clergy of all denominations to the perverted views of morality entertained by a large class of females-aye, and men also, on this important question."
These were not coincidental; they were coinciding. They reflected the prevailing social attitude of morality, focused on the greater sin of women having sex outside of wedlock rather than men having sex with women out of wedlock. Was it coincidental that The Scarlet Letter was published in 1850? I think not.
Ergo, I reiterate my point that this is a women's rights issue. The basis of criminalizing abortions was rooted in the unequal treatment of women and their lack of rights.
It is irrelevant whether or not a fetus is "alive" or "human." (I hate that idiotic objection. It's not a freaking kitten. So?) The point should be whether it is "alive" or not, NO ONE has the right to force me to donate my uterus (and indeed my entire body) to keep it that way. If my bone marrow/blood/kidneys/liver etc was a perfect match for a transplant, I would be fully within my rights to refuse to donate my organ, even if the patient died as a result. I could even refuse to donate an organ to MY BORN CHILD, even if the child died as a result. Bodily autonomy is certainly tied in to the right to privacy, but the bottom line is that state has NO business dictating what I do with my body.
If it is dependent on the mother's body to survive, then it is part of the mother's body.
Or if we have to reach into theology, the only place the Bible mentions something similar is in the Old Testament, where it comes down pretty squarely on the side of "life begins at birth," when you breathe the breath of life. You know, just like when Adam became alive.
I think it must first be said in the abortion debate is that both sides have valid points so it's best not to demonize them. Personally, I don't want to make family planning decisions for other people, so I am pro-choice.
But I can see arguments on the other side. Some of which I agree with.
As to the argument that women have a right to do what they want with their own bodies, that is true, but a fetus is a separate individual from the mother, even if it depends on the mother for survival. The question is what a woman is allowed to do to this other human being.
Kevin may not believe it, but I believe that life begins at conception. The human body is constantly evolving from start to finish. A fetus is as different from a baby as a baby is from a child as a child is to an adolescent as an adolescent is to an adult as an adult is to a senior citizen as a senior is to a terminal case. Which of these is a "true" human being?
That said, the sacredness of life is not an absolute. Americans in particular have sent more of its citizens to die---and to kill---in wars over the last 160 years to pretend that killing can't be justified. In particular, killing is justified for reasons of self-defense, whether as a nation or as an individual. Nothing seems more American than that.
So while I believe in a right to privacy, I think it is in the right to self-defense that abortion stands on the strongest legal ground. That's why exceptions for rape, incest and protecting the life of the mother always have loomed so large in pro-choice rhetoric, even if the number of abortions that fall into those categories is vanishingly small. It's the principle that counts. No man should be able to rape a woman, impregnate her and force her to carry the baby to term. Just as a woman cannot be required to give birth if there are underlying medical conditions that would make that dangerous. There is no scenario in which this is fair or just. A woman has a right to self-defense.
Pro-life forces know that once you grant these exceptions, you've got to allow abortions for all. Just as it can be hard to prove that a woman was raped, it is just as hard to prove that she wasn't. Consent is a tricky thing. So today's pro-life warriors have had to take extreme positions on the morality of carrying rapists' offspring to term. So too with exceptions for health risks to the mother. Under their medieval laws, doctors could be prosecuted for terminating an ectopic pregnancy that has no chance of viability but every chance of harming the mother. These are the draconian outcomes that come when you don't allow for medical exceptions, but when you do, a lot can be made to fit into them. Every delivery still carries with it an element of risk, risks that can be exacerbated by all sorts of medical conditions. But you have to give the mother the benefit of the doubt. She can't be forced to risk her life for anybody.
It is funny to me that the same states with stand your ground laws would pass legislation that takes away a woman's right to self-defense. Maybe if abortions were performed with handguns they'd find a way to make them legal.
Fetal life is not the deep question for the committed anti-abortion side. It's about *souls* for them. That's what they mean when they talk about life beginning at conception. That's why they think of abortion as murder.
That's a problem for the rest of us because "soul" is a religious idea, and the constitution that our Holy Six claim to revere says there's a difference between law and government on the one hand and religion on the other.
Their quarrel really is with the path of modern history in the western world. Western governments, broadly, used to concern themselves with souls until the vast bloodlettings and slaughterings that followed the Reformation. Starting with the Peace of Westphalia we've moved increasingly to the view and practice that the state and the law are properly about bodies and about behavior in public, and not about regulating souls.
Alito doesn't seem to think that was the right direction to take. Nor Gorsuch, nor probably Barrett. I don't know how far down that road Kavanaugh's ready to travel. Thomas probably is near Alito, though who knows really with him-- resentment and spite might be more fundamental than religious commitments.
When Alito pointedly cites the words of the MS law, he's pointing exactly to the attribute of soul-- the only reason to talk about the "unborn human being." This religious position seems to me the only thing that might make his farrago of bad history and questionable legal construction hold together.
So I don't think we should argue over fetal life, because "life," in the way we usually think about it, isn't the point for them.
I think we should be talking about why we have laws and what they're for. They're about how we behave in public. They're not about souls; that's private. We may think deep in our bones that some laws are dead wrong, even evil. But we have to live with the fact that others may lawfully do things we don't think they should, even at the peril of their own souls and the souls of others, because that's the bargain we make in order not to spend all of our time trying to force everybody else to agree with our most private beliefs. And then killing them if they don't yield, because that's where this can ultimately go. We've been there before.
You know, I bet we have a lot of believing Hindus in the US. Do they insist on laws that ban insecticides? By Alito's premises, they should.
It shouldn't be "life" as a determining factor. It should be "form and function".