What can philosophy contribute to the lengthy, widespread, and often emotional abortion law debate?
The U.S. Supreme Court is about to issue a decision about a woman's right to abortion. A draft of the decision was leaked to the press a few weeks ago. The draft, written by Justice Samuel Alito, overturns the 1973 decision in Roe v Wade that gave women the constitutional right to abort a fetus in the first trimester of pregnancy.
It is predicted that Alito's draft will be approved by a majority of the Supreme Court and become law sometime in June 2022. In response, many U.S. states have already declared that they will either retain or create a state's right to abortion similar to the constitutional rights that are guaranteed by Roe v. Wade. But 23 other states have passed legislation that will prohibit all abortions except in cases of incest, rape, or the health of the mother. And some of these states will go even further and ban abortions in cases of incest and rape. Other anti-abortion states are considering legislation that will classify abortion as homicide (murder).
QUESTIONS ABOUT ABORTION LAW
There are two sets of philosophical (normative) questions that philosophers and philosophy students should consider if and when Alito's draft is approved and published.
First, does Justice Alito give sound arguments for overturning Roe v Wade? What implied theory of constitutional interpretation does Alito and the Court majority use in taking away a woman's right to choose abortion? Is the theory sound? What normative support should we expect of any theory about how to interpret the U.S. Constitution?
Second, assuming that all abortion law-making will return to individual states, what moral theory will guide legislation in the states that have said that will prohibit almost all abortions? What moral theory will guide legislation in those states that say they will guarantee a woman's right to abortion similar to that guaranteed under Roe v Wade?
CONTEMPORARY PHILOSOPHERS' ANSWERS
In 2019, Justin Weinberg of Daily Nous put together a group of philosophers who he asked to write "brief thoughts" on the ethics and politics of abortion. Professor Weinberg's hope was that posting these thoughts would serve as "prompts for further reflection and discussion." He urged readers to join the discussion and "share the following posts widely with your friends and colleagues."
That is exactly what I am doing here. You will find all of the posts below in the June 10, 2019 issue of Daily Nous.
“Why Abortion Should Be Legal Even if Every Fetus Has a Right to Life” by David Boonin“Abortion: Morality, Law, and Drawing Lines” by Kate Greasley
“Some Fetuses Have Moral Status and Some Do Not” by Elizabeth Harman
“Abortion is immoral even if the fetus isn’t a person: The impairment argument” by Perry Hendricks
“Banning abortions won’t stop them: What the empirical data tells us” by Bertha Alvarez Manninen
“On Abortion and Feminist Litmus Tests” by Gina Schouten
“Rational Natures, Fetuses, and the Protection of the Law” by Christopher Tollefsen
“A Conflict of Interests” by Rivka Weinberg
DEBATES OVER HOW TO INTERPRET THE CONSTITUTION
The other part of the question asked earlier is about the normative question "How should justices of the Supreme Court interpret the U.S. Constitution?" Is there an objective answer to this question? If Rowe v Wade is overturned, many years of precedent cases using similar interpretations of the Constitution will be at risk of also being overturned. Some non-partisan essays, online help, and books highlight the main precedent cases and theories of constitutional interpretation now being debated.
- Constitutional Interpretation: The Basic Questions, by S. Barber and J. Fleming (2007).
- "Constitutional Interpretation," Ch. 6 of Philosophy, Law and the Family by Laurence Houlgate (2017).
- Interpreting the Constitution by Harry Wellington (1992).
- "Constitution Annotated: Analysis and Interpretations of the U.S. Constitution," Online at Congress[dot]gov (2022).
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