ABORTING A HUMAN EMBRYO IS NOT MURDER

 

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The nonsensical idea of a natural right

At this writing, the U.S. Supreme Court has removed a constitutional right: the right of a woman to to have an abortion in the first trimester of her pregnancy.  From now on, it will be up to the states to decide whether women should be allowed to abort a fetus under certain conditions or not at all.  

In some states the legislature might decide to treat all abortions as murder. Punishment of a woman for aborting a fetus at any stage of her pregnancy will be prosecuted and punished the same as if she had killed her newborn child.   The argument goes like this: If it is murder to kill a child, then it must also be murder to kill what pro-life advocates call an “unborn child,” or what scientists call a zygote, embryo, or fetus.  At every stage of pregnancy, from fertilization to birth, it is contended that the human fetus has the right to life.  Since abortion (killing the fetus) is an intentional violation of the right to life, it follows that abortion must be treated as an act of murder.

Suppose that a woman takes a pill that aborts (kills) the human embryo within her body.  If abortion is murder, then the logical implication is that the embryo has the right to life at the very moment of conception.  But there is no evidence, no valid argument for this conclusion.  To say "The embryo is human" does not logically imply "The embryo has the right to life."  To put it another way, there is no contradiction in saying "It is a human enbryo but it has no does not have the right to life."  Having human DNA no more gives it the right to life than having feline DNA gives my cat the right to life.

How does any being, including a human being acquire the right to life?   When we say that a being of any kind (human, dog, cat, horse) has a right to life, we mean that it has a valid claim on society to protect its life from those who might attempt to kill or harm them.   A right or valid claim for social or legal protection comes into existence when society finds that the social consequences of giving protection are better than the social consequences of not giving protection.

The same argument applies to the right of bodily autonomy, understood in this context as the right of a woman to make her own abortion decisions without interference by others.   Women do not have this right by nature.  They are not born with the right to bodily autonomy.  There is no contradiction in saying "The human embryo does not have right to bodily autonomy when she becomes pregnant."

How does a woman acquire the right to make her own decisions about abortion?  In the same way that an embryo acquires the right to life.  If she has the right to abortion, then she has a valid claim against society to protect her from physical interference.  The 1973 Supreme Court decision (Roe v Wade) gave her that right (made her claim valid) but prior to 1973 she had no valid claim to protection from state interference.  There were few states that granted a right to abortion at any stage of pregnancy.

We do not know whether the social consequences of protecting any particular  embryo from abortion will be good or bad. A lot depends on the mental and physical health of the child, the social environment in which the child is born, and the effect of pregnancy on the woman.

But there is a lot we know about the bad consequences of forcing a young woman to continue her pregnancy for nine months until birth: her loss of liberty,  loss of education, loss of a job, loss of friends and social opportunities that she should otherwise enjoy.  The bad consequences of forced pregnancy are usually much worse than any good consequences. Therefore, women have a valid claim on society to protect it from government interference. If there is a valid claim, then by definition, there is right to bodily autonomy.  If there is a right to bodily autonomy, then aborting an embryo cannot be murder.

There is no mention of “natural rights” in this argument. The very idea of a natural right is nonsense.  Let me put it this way.  The concept of “a right” is not to be found in the concept of any kind of animal, including the human animal.  It is not a contradiction to say, “Nancy is a hen but hens do not have the right to life.”  Similarly, it is not a contradiction to say, “Marilyn is human but Marilyn does not have the right to life.”  We can imagine circumstances in which this is true, for example, Marilyn is a slave and is the property of her master who has the right to sell or kill her. 

The word “natural” is the opposite of “conventional.”   Natural rights are falsely said to exist in humans (and only in humans) as an essential element without which they would not be human.  But this is where the nonsense cones in.   What makes a being human is that they are born with a specific DNA that can be confirmed to exist by laboratory tests.  But there are no lab tests, observations or experiments that would be evidence for the existence of rights in human beings.   If humans have rights of any kind, including the right to life, it is only because rights are conventional.  Rights are the product of social mores and human-made law.  Without rules that humans create and enforce, we would have no rights at all.

THE U.S. SUPREME COURT AND THE POLITICS OF ABORTION

 

 

 

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I am writing this on the day of a huge protest at the White House demanding action by the president to do more to help women whose right to abortion has been taken away by the US Supreme Court. President Biden said that the Court's decision to overturn Roe v Wade was a "political" decision that can only be reversed by appointing liberal justices to the Court or by electing liberal senators who will vote to codify Roe v. Wade. In other words, we should make another political decision about abortion by replacing pro-life justices with pro-choice justices. 

 

When it is said a decision was made "for political reasons," we usually take this to mean that the decision relates to or is influenced by the ideas or strategies of a particular party or group in politics. Decisions of the president or members of the U.S. Senate to seat judges who will vote for or against proposals to take away the right to abortion are definitely political.  These decisions are generally understood to be deeply influenced by the ideas and objectives of the Republican and Democratic parties.

 

Why is this? Why are judicial decisions about abortion political? What would a non-political judicial decision look like? 

 

In overturning the 1973 precedent case (Roe v Wade) the current conservative court used a theory of interpretation known as “textualism” or “originalism”. This means that the Court should always adhere to the words and intent of the the Framers — that small group of men who signed the Constitution and the representatives of the states who agreed to it. 

 

However, there are several theories of constitutional interpretation known as “non-originalism.” Some of these theories look at the unstated moral principles that give support to the original text. “Privacy” (the right against undue government intrusion into fundamental personal issues and decisions) is the central principle that was used 50 years ago in creating the constitutional right to an abortion. It is now ignored by the current court as irrelevant and the decision of the 1973 Court was branded by Justice Alito as "egregious." 

 

The point I want to make is that this is a battle about theories of interpretation. What theory should be adopted by the court? The Framers of the constitution left no instruction about how their words should be interpreted. This makes the Court very susceptible to politics. Three members of the current court were nominated and approved by a conservative president and Senate. The majority of this court are all believers in originalism and although they vowed to be impartial and respectful of precedent, they were all well-known in their writings and lectures about Roe v Wade to be dismissive of the non-originalist argument that supported this decision.

 

Politics drives the membership of the court and the judges act accordingly. After the selection of three new judges by a conservative Republican president, we should not be surprised that Roe v Wade fell and women lost their constitutional right to abortion.

 

How do pro-choice citizens reverse this decision? The suggestion that there might be a non-political theory of constitutional interpretation seems to me to be a fantasy. It would have to be an interpretation of the Constitution adopted by the Court that bore no relation to fundamental ideas about the limits of personal autonomy (women have the right to make decisions about what happens in and to their body) and the meaning of personhood (the human embryo is a person with the right to life).

If there is no persuasive argument for adopting a single theory of constitutional interpretation, there are three ways that the right to an abortion can be restored. 

 

First, as mentioned, the U.S. Senate can vote to codify (make into a federal law) the right to an abortion. Of course, this will be blocked by Republicans who cheered when the Supreme Court overturned Roe v Wade.  But if Democrats can win the Senate and get a slim lead in the mid-terms and hang on their narrow lead in the House, they might be able to pass a federal law that obligates every state in the union to allow women to have an abortion.

Second, pro-choicers can try to amend the Constitution with a new bill that guarantees a right to privacy.  Of course, pro-lifers might respond with a bill that guarantees a right to life to any being that has human DNA. This tactic is much less likely to work than codification. This is because it takes two-thirds of both Houses of Congress, or, two-thirds of the States request a convention called for the purpose of adopting this right. The proposed amendment must then be ratified by three-fourths of the State legislatures, or three-fourths of conventions called in each State for ratification.

 

Third. the president might try to "pack" the Court with two or three judges who share his political beliefs. This tactic has been used before but it would succeed only if a few Republican senators broke ranks and voted with Democrats for the recommended judges.

So there you are. My solution? Get out and vote! Change the makeup of your state legislatures and Congress.