The Unanswerable Question

The attempt on the life of Supreme Court Justice Brett Kavanaugh by a man apparently motivated by the leaked draft of the Dobbs decision re-kicked the hornet's nest that is the abortion debate. The would-be murderer, a 26 year old Californian who "wanted to give his life meaning," has spawned a fresh round of opinions, with vocalizing the same visceral antipathy toward the 'other side' that we've grown accustomed to, and prompted the same position reiterations we've heard time and again.

I have seen a "slippery slope" argument posited in many places regarding the precedent leveraged in the Roe decision, namely the Griswold case that inferred a right to privacy from 1A, 4A, and 5A, and therefore legalized contraception, would be at risk from a Roe overturn. Ditto for the Obergefell ruling that legalized gay marriage, as well as other Court decisions that, per the arguers, affront conservatives.

I don't find these arguments compelling in the slightest, for the simple reason that rejecting the applicability of a precedent is in no way the same as saying the precedent itself is improper. Concluding that a square peg doesn't fit into a round hole doesn't make that peg not-square.

Abortion isn’t really about privacy. Here’s why:

The core of the abortion issue is the question of “personhood.” When does a fertilized egg becomes a "person," and therefore deserving all the protections established by common law, legislation, and the Constitution itself?

Some claim it’s the moment of fertilization. Rationales include “potential,” as in if left alone, a baby will be born 9 months later; and religious arguments including that of a soul.

Some, the moment of birth. Rationales include the 14th Amendment’s language “All persons born” and the supremacy of the mother’s rights as a support system for the fetus.

Some, a point in between, e.g. viability, a detectable heartbeat, or some other biological ‘milestone.’

I’ve encountered other rationales for for all these. While I have my own opinions about all these arguments, and on abortion itself, I deliberately omit any such here.

The problem is, there really isn’t a scientific answer to the personhood question. It’s a definitional matter, which makes it a metaphysical debate.

Thus, there isn't one logic-based path to a conclusion.

Thus, it's not for judges or Justices to decide.

Thus, the question belongs in Congress, or if we take a stricter 10A path, state legislatures.

I've already called Congress out on its failure to codify (or alter) the Roe parameters in the 49 years since the Court tortured logic and usurped the legislative branch's job to achieve a preferred end. The Democrats, for whom abortion rights purport to matter more than anything else in the political sandbox, had, on at least two occasions, enough control of the government to pass such laws. That they didn’t is a tacit admission that it’s far more controversial, even within their own ranks, than they admit.

I've also had at the hypocrisy of the "my body, my choice" chanters. Apart from being a lie in just about every matter excepting abortion, it fails to compel once a "personhood" standard is established because, at that point, there is another body that the State is legally obligated to protect from harm.

Most pro-choice advocates I encounter fail to attend to the issue's core, and instead cite privacy, body autonomy, or both. However, the personhood question remains, and it should be addressed. Moment-of-fertilization proponents do rest their argument on personhood, but I often see it as presumptive, rather than explained.

I think the debate needs to accept that the core issue is personhood, instead of seeing the dominating polar extremes yelling disconnected assertions past each other. I don’t expect a meeting of the minds, but an honest dialogue would be better than incessant hate-spewing. That is the proper foundation upon which to build any sort of national-level consensus and resultant legislation, not the end-run on the legislative process that is the essence of the Roe decision. It is a certainty that there will be many unhappy people at the end of a process that produces legislation, but I think that’d be better than trying to achieve an outcome via the Court.

I welcome every reader's opinion on the point personhood is achieved. Leave a comment here at Substack if you’re so inclined. My goal here is to refocus the debate to where it belongs, and to dissociate the presumed Court decision that Roe is bad law from the abortion debate itself. They are two separate matters, and there are indeed pro-choice people who nevertheless think Roe was poorly reasoned and deserving of overturn.

A reminder - overturning Roe does nothing, in and of itself, to set or change limits on abortion. Many states have laws either on the books or "ready to go," but the Court's ruling is neutral on those laws.

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Yours in liberty,

Peter.