If men had babies, they wouldn't stand for this decision
In reading the Supreme Court’s judgment about the constitutionality of Mississippi’s law that makes abortion illegal after fifteen weeks, the majority’s legal reasoning was peripheral to a more basic and uncontestable fact: if men bore, and were the principal caretakers of, children, they would never allow the government or courts to control decisions about their bodies that would be so fatefully consequential for their lives. Men adamantly oppose limited governmental regulation in a far less personal and consequential realm—the possession of guns.
Contrary to the Roe v Wade decision, the majority concluded that there is no constitutional right to an abortion and that abortion laws should therefore be decided by the individual states. The consequence is that states can eliminate a woman’s right over her body and future, and many states will.
The majority of the Supreme Court reasoned that there is no mention of the right to abortion in the Constitution and that it is not part of the concept of ‘ordered liberty’ in the 14th Amendment that can be ‘deemed fundamental.’ And why can’t a woman’s right to make the most momentous decision in her life about her body, health, and future be ‘deemed fundamental’? Simply because it was not a legal right in 1868 when the 14th Amendment was passed.
But this reasoning is absurd. It makes sacred the patriarchal past when women had no voice in the political process and only had legal standing through their husbands. The Court wrongly assumed that fundamental rights guaranteed in the 14th Amendment’s liberty clause can be established objectively only by looking to the ‘Nation’s history and tradition.’ This is colossally circular reasoning since our Nation’s history and tradition prohibited women, among others, from participating in our Nation’s history and traditions.
The Supreme Court’s attempt to isolate the right to an abortion morally from other individual liberties established later by the Court—such as the right of African-Americans to attend desegrated schools, the right to contraception, the right to interracial marriage, the right to non-heterosexual sex, and the right to gay marriage—is utterly unconvincing. How can these rights be legally supported since they, too, have not been part of the Nation’s history and tradition? In his concurring opinion, Clarence Thomas acknowledged this logical implication. The Court focused only on the legal past and not on the moral and legal progress in the 20th and 21st centuries.
Finally, the reasoning is obviously partisan since, contrary to the Roe decision, it does not give an even-handed consideration to the conflicting moral principles that make the issue of abortion such a contentious moral issue — the right of the women to make decisions about childbearing and her future health and life versus the right to life of a potential person (note that a fetus is genetically human, but that does not mean that they are automatically legal and moral ‘persons’). What the Court has done is to give states the authority to disregard entirely the mother’s well-being since states can legally ban abortion upon fertilization. And although Roe’s legal dividing line of viability—when a fetus can exist independently of the mother—can be rationally contested, I think it might be the most non-arbitrary time during pregnancy to allow a woman to terminate a pregnancy since viability is far more morally relevant than the appearance of a heart beat or sentience.
Given the exceptionally weak nature of the majority’s reasoning, it is difficult to avoid the conclusion that, contrary to the Court’s conservatives’ public repudiation of judicial activism, it has privately imposed its moral (and likely religious) beliefs on the country by taking away the constitutional right of woman to an abortion and by potentially conferring unconditional value on the developing fetus.
However, this absolute value cannot be morally defended. For it is a biological fact that an embryo and fetus cannot exist without a woman to bear it, and a fetus cannot become a functioning human being without the help of actual existing persons, usually women. Were human pregnancy brief, were it without actual physical, psychological and familial consequences, and were humans independent at birth, then giving a fetus the legal right to life would be rationally justifiable. But bearing and raising the human species is totally unlike this.
Those who dissented against the majority opinion are right—the Court’s decision to take away a constitutional right to an abortion will make women less free and equal. As in the pre-Roe era, without a guaranteed liberty to choose, women will suffer and die and experience economic disadvantages, especially the poor.
Other than perhaps some of the liberties guaranteed in the First Amendment, I cannot think of a more fundamental human right than a woman’s liberty to make what the dissenters characterized as the ‘most personal and consequential of all life decisions.’
There can be little doubt that were men child bearers and the principal child rearers, they would never stand for any governmental or court intrusion whatsoever.
Lou Matz is an aging basketball player and professor of philosophy at University of the Pacific.
This article originally appeared on The Record: If men had babies, they wouldn't stand for this decision
