Roe v. Nothing

The Human Condition:

Roe v. Nothing – September 11, 2022

Since the Supreme Court in its Dobbs v. Jackson Women’s Health Organization ruling this June overturned the long-standing precedent in Roe v. Wade (1973), which found a Constitutional protection for a woman’s right to an abortion and was reaffirmed in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), the political discourse in these United States has gone ballistic. But most interesting, not to say heartening, is a recent vote in Kansas that rejected an amendment to that state’s constitution providing a blanket ban on abortion.

First of all, let me say that I don’t “have a dog in this fight.” I never could become pregnant myself or need an abortion. I have never risked making, nor have I made, anybody pregnant so that they might need an abortion. I am long past the stage where anyone in my family or near affinity can become pregnant and need an abortion. And I have no firm religious or moral conviction about the sanctity of life or the sin of taking it. I am as close as you can come to a dispassionate political observer.

People die all the time. Pregnancies end all the time, through mishap or bodily rejection. I would hope that every child carried to term will be wanted and be born into a family or familial situation that shows him or her love, support, and care. Every human being needs such an underpinning to reach their full potential. And I am enough aware of the death all around us that I would favor ending a pregnancy while the fetus lacks viability rather than carrying it to term and abandoning it to the cold, or to an overcrowded and undersupported system of public charity.

I am a firm believer in evolution. This is how we get the splendid diversity and vitality of life on this planet. And life is beautiful. But evolution is a harsh mistress. Over the four billion years or so since the first bacteria and blue-green algae awoke on Earth, evolution has created and destroyed more species than have been alive in my lifetime.¹ The very notion of a species is its fitness for or adaptability to a particular environment, and the environment is always changing. You can believe in perfect forms and God-created species if you live in a static and unchanging world. But the real universe is in a constant state of transition.

Evolution has no respect for individuals, either. Zero, none. Being part of a successful species—such as, so far, H. sapiens—is no guarantee of your personal survival. The incidence of random mutations and the accompanying loss of viability, which sometimes arises generations after the first single nucleotide polymorphism enters the genome, can take down any individual, regardless of his or her talents, other and more promising predispositions, or future contributions. In the evolutionary framework, individual members of a species, individual human beings, are only important as carriers of the genetic code from past to future. As people, we matter not at all.

So … death is all around us. The elimination of a potential life, because the mother is either unwilling or unable to commit to the love, support, and care that a child needs, should not be a great moral dilemma. There are two views on abortion. One is that the child is just a “clump of cells,” almost an invading foreign body like a tumor, at least until it is viable outside the womb. The other is that a fetus is a human being, with all the rights and privileges adhering thereto, from the instant of conception. I am sympathetic to neither view. The reality, for both the mother and the unborn child, is somewhere in the middle.

But I also would agree with Macbeth that if it were to be done, then it was best done quickly. Aside from complications that might arise late in pregnancy, a potential mother should decide what she wants to do, make a hard decision, and take the step earlier in the pregnancy rather than later. I think most people who are not staunch right-to-life advocates would agree that an abortion is best done in the first trimester. The first six weeks, as some state laws would allow, is too early, because a pregnancy might not become noticed and allow time for arrangements in that period. But also, staunch right-to-choice advocates who say that no infringement is acceptable, from the moment of conception right up to the moment of birth—and maybe a few minutes after—are also playing a legal strategy of absolutism, as if allowing the smallest exception arguably brings down the whole structure. And I am absolute about nothing in this discussion.

But in all of this, I do agree with the Dobbs decision, that Roe and its affirming cases were wrongly decided. The Constitution is a compact among the states to form a federal union for certain purposes, like defense of the country as a whole, policies on international trade, and rules for interstate commerce. It was never meant to establish a national government like that or France or Russia, where all polities and programs come out of Paris or Moscow. The states in the 1790s had different populations, originating in different parts of Europe, with different interests and values. Many of the states still do—for instance, talk to an Iowan about the corn market and then talk to a New Yorker. It is not unexpected to find people in different states, with different religious histories and backgrounds, disagreeing about something so debatable as conception, life, and abortion.

To pull an absolute right to abortion out of the notions of individual privacy in the First, Third, Fourth, or Fifth Amendment, or base it on equal protection in the Fourteenth Amendment, is a tricky deal. To use those notions to discover a right that is not otherwise spelled out in the text opens a trapdoor to all kinds of loose play. For instance, nowhere in the Constitution does it guarantee a right to life.² This is why the police officer guilty of killing George Floyd could be tried and convicted in Minnesota state court for murder but could only be convicted in federal court for violating Floyd’s civil rights. The Constitution leaves crimes like murder, rape, robbery, and so on to the states to legislate and judge. Imagine if a majority of conservative, pro-life justices were to find a right to life in those same intimations of a right to privacy. Both sides can play that game.

And so, although I think abortion ought to be a potential mother’s choice, within the limits described above—because I am not an absolutist about nearly anything—I still think the rules governing abortion, along with those about murder, rape, robbery, and other moral concerns regarding interpersonal transactions, should be established and voted on at a local level. In this country, that local sphere is the individual state. And if a person finds that they cannot live under the laws of the state where they reside and find those of another state more to their liking, they should be free to move.

But, as I said, I don’t have a dog in this fight. So what is my opinion worth?

1. Except maybe for beetles. There are a lot of species of beetles and other insects that we haven’t even discovered yet. I think it was Charles Darwin who said that God must have an inordinate fondness for beetles.

2. That whole “life, liberty, and pursuit of happiness” thing is in the Declaration of Independence, which is aspirational and reflects the founders’ early values but does not prescribe any particular set of laws.