At the end of June, the Supreme Court of the United States (SCOTUS) overturned the prior Roe v. Wade decision. This has led to much rejoicing among pro-life proponents, and an absolute meltdown among advocates for abortion. It also appears to me that there is widespread misinformation on this topic as people turn to exaggeration and hysteria instead of trying to rationally examine both the court decision and the matter of abortion itself.
It should go without saying that this post will delve into controversial topics: sex and politics. I have spent a long time revising and editing this in an effort to maintain an honest yet respectful tone despite my own biases, and have made an effort to restrict my arguments to scientific and philosophical principles. I anticipate disagreement, so I only ask that replies be made in the same spirit.
The Legal Situation
Fourteenth Amendment to the United States Constitution
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
[Emphasis added, subsequent sections omitted]
Roe v. Wade was a 1973 SCOTUS decision which decided the 14th amendment to the United States Constitution granted a "right to abortion," and overturned state laws prohibiting the practice. As an anarchist, I only respect those parts of the Constitution which tell government, "no," but even if I don my minarchist dunce cap, and embrace strict constructionism, that was still a deeply flawed decision. The convoluted rationale twisted the plain language of the amendment, sidestepped the question of delegated power, and ignored serious philosophical questions about life and rights. Imposing a nationwide political dictate would be in error even if I grant that their opinion about abortion was fundamentally correct.
I contend Dobbs v. Jackson Women's Health Organization, the decision which overturned Roe v. Wade, is being deliberately misrepresented in corporate and social media alike. The SCOTUS did not ban abortion, prohibit contraceptives, or establish a theocratic dictatorship à la The Handmaid's Tale. They merely said the prior decision was in error, and the matter of abortion was outside the scope of SCOTUS authority, so the matter reverts to the various states to decide more locally as it had been prior to 1973. By the plain wording of the 9th, 10th, and 14th amendments along with the delegated powers in the Constitution, this seems like the correct legal outcome based on current law. Either a plainly-worded amendment, or at least a clear legislative act, is necessary if abortion is to be enshrined nationwide.
Some states have already legalized abortion. No one in these states is affected by the SCOTUS decision in the slightest, as the decision to leave this matter to the authority of individual states did not impose a prohibition. Other states had laws prepared to trigger an abortion prohibition should Roe v. Wade ever be overturned, with varying restrictions. As far as I know, most still allow emergency contraception like the "morning-after pill" and at least some period of first trimester abortion, although I could certainly be wrong on this matter. Please feel free to cite any exceptions in the comments.
Whether these laws affect stillbirth and miscarriage seems to be more a matter of hysterical accusations by the pro-abortion crowd than serious examination of the laws in question, but again, I could be wrong. This would require a closer examination of several different pieces of legislation to verify.
President Joe Biden has also announced an executive order to intervene on this topic. If the prior SCOTUS decision was inadmissible due to effectively serving as judicial legislation, this EO is surely on similarly shaky ground. If there is to be any pretense of a federal government with delegated authority, this kind of grandstanding and posturing needs to end before any real progress can be made under Constitutional procedures, and surely some manner of democratic decision-making is required.
Arguments and Counterarguments
There are many flawed arguments from the abortion advocates. Gametes are not a new human life, so masturbation is not equivalent to abortion. Human reproduction is not analogous to parasitism, and mammalian biology is designed for the process. A fetus is not "just a clump of cells," it is a developing being following a pattern of growth with clear purpose. Accusations that the pro-life crowd does not care about the children after they are born, justified by pointing out conservative opposition to welfare programs, blatantly ignores all the charitable causes they support. Arguing that opposition to government programs is opposition to their publicized aim just fuels discord instead of understanding why people might not want to be forced to fund something they might quite reasonably believe to be ineffective or even counterproductive.
Slightly more plausible are the arguments that conservatives do not care about killing in war, capital punishment, or police brutality. At least in some circles of US Republican ideology, this may have merit. However, this hypocrisy does not negate their arguments against abortion, and I have deleted paragraphs of counter-accusations of hypocrisy against Democrats as I edited this post. It is not a persuasive tactic, just a weak rhetorical effort to gain applause from people who already agree with me.
The best case I have seen for abortion is evictionism. No one has a right to impose an obligation upon another to feed, shelter, or clothe them. No one may be forced to support another individual against their will. There is no denying that pregnancy is a burden. I may not be capable of pregnancy, but I have been around long enough to make some observations from the sidelines. It is approximately nine months of hormonal chaos, increasing weight, and discomfort followed by the ordeal of childbirth with its small (but non-zero) risk of complications, and then several years of child-rearing. And that is just my oversimplified description for brevity. Does the unborn child have a right to impose this duty?
I contend that pregnancy is not like an apartment rental, and abortion is not equivalent to evicting a bad tenant. Rental is a contract based on offer, acceptance, mutual voluntary consent, and exchange of consideration where terms are clearly stated. The unborn did not act to commit a trespass, and violated no consent. Is it rational to claim I consent to gluttony, but not to the consequent obesity? Pregnancy is the consequence of sexual intercourse between two people coinciding with the various factors of fertility, creating the situation in which conception is the natural biological process.
To argue by analogy, this is not like a ship captain throwing a mutinous sailor overboard. We would condemn even the murder of a stowaway who did trespass by boarding a ship in secret. But the unborn is more akin to a kidnapping victim found aboard ship against their will, or a slave imprisoned in the hold of a ship as cargo. How is a death sentence justified if such a person is deemed "inconvenient?"
As for legal matters, perhaps we should turn the very argument of Roe v. Wade on its head and ask when the 14th amendment equal protection applies to life. Birth is the usual benchmark, and is used in this amendment. Scientifically speaking, however, we know when gametes fuse, write a new genetic code, and implant in the uterus to begin development, this is the point when a scientifically verifiable new human life begins to develop. Since this is a genetically unique human life, why should those same rights and protections not apply? A difference in stage of development is not a change in kind, only degree. A newborn is no less dependent on a mother's care than he or she was before birth. Can it not therefore be argued that equal protection under the law should also protect the unborn from deliberate murder?
The diciest issues relate to medical concerns and rape. I cannot deny that there are some instances where abortion may in fact be medically necessary to protect the life of the mother, but that is not really the core challenge from the pro-life side. There are many accusations of a pervasive "rape culture," but while the crime does occur, it is not widely accepted in society. If anything, the stereotypical Republicans would support summary execution of rapists, and offer their own rifles and ammunition for the cause, especially in cases of child rape. Is it right to impose the burden of pregnancy on an underage girl who clearly did not consent to sex in the first place, though? Again, this is an unusual circumstance often used to avoid the core question of elective abortion, and such special cases should be considered on their own merit instead of being used to paint opposition as inherently uncaring.
Practical Solutions
There are many ways to avoid pregnancy. Abstinence (with one notable purported exception) is effective. For those who don't intend to forgo sexual activity, options include non-penetrative sex, spermicides, condoms, oral contraceptives, emergency contraceptives, IUDs, vasectomy, tubal ligation, hysterectomy, and even just keeping the testes a bit toasty. Many, many choices are typically ignored before fertilization and implantation can occur, and abortion even enters the conversation.
Adoption laws need serious improvement. I would estimate legal obstacles tend to impede good people far more often than they shield children from bad people. The current foster care system is rife with abuse, but this hardly proves the concept is broken. The political system which claims to safeguard children just reveals the inherent flaws of monopoly power yet again.
Reform is needed in the realm of child support laws. I have known people trapped in the catch-22 of poverty and debt. When failure to pay child support leads to loss of a license to drive, it just fuels a death spiral. People need to drive to get to work. Public transportation is not available at all here in rural America, and many jobs also involve driving. But the laws remove the ability of a father to gain and maintain employment, and then punish him further for being crippled by those prior punishments. This is not accountability, it is counterproductive cruelty, and creates a perverse incentive for fathers to pressure their sexual partners toward abortion.
We may be on the brink of practical artificial wombs, just one leap forward which can answer many of these concerns about unwanted pregnancies, rape victims carrying to term, and dangerous pregnancies. Male medical contraceptives are also being investigated. If all the money thrown at politics were used for actual solutions, maybe we could progress even faster.
My Conclusion
We, as rational acting individuals, have the power to choose our actions, but not their consequences. That is why we rationally define crimes by their consequences of trespass against the lives, liberty, and property of others because such crimes in turn deny their right to choose, and impose consequences without their consent. The unborn did not trespass, but those who perform abortions do. Every abortion deliberately ends a human life at a vulnerable stage of development. That is something we need to stop ignoring in our debates on the topic.
If we cannot discourage sexual promiscuity, we can at least encourage people to choose partners more wisely. To put it bluntly, guys, don't put your dick in crazy. Ladies, don't let losers jizz in you. Be willing to take precautions by seeking contraceptives beforehand, or take responsibility in providing support for pregnancy and childcare afterward. I want to encourage a culture of accountability instead of literally dehumanizing the unborn to avoid the natural consequences of reproductive acts.
Very well thought out and factual writing Jacob.
Not a mention of religion though? Should humans whose religions basically forbid contraception have to forgo sexual pleasure and use the act purely as a means to procreate? We are human after all.
The scientific and legal arguments are great but this debate is so much more than that which can be boiled down to legalities and case law.
The question of what defines life must surely raise its head. Is life really a small clump of cells without any form of consciousness? If this definition is applied then let's ban bread as yeast is also a small clump of cells without discernable consciousness.
According to the information I found online, the brain does not even start to appear until week 5 and not until weeks 6 or 7 is it actually doing anything.
https://www.healthline.com/health/when-does-a-fetus-develop-a-brain
This has to be an important stage in the argument of the definition of 'life'.
I'm not really interested in the finer points of US Federal and State law, there is too much law and basing any decision on whether laws were broken or trampled upon in error or not is ridiculous in such an important human debate.
I notice very few (if any) women in this thread but it is they who ought to have the final say as it's their body and ultimately right to decide.
As for anyone, politician or anyone else who wants to ban all forms of abortion yet advocates the death penalty. I find that abhorrent. Life is life by definition not by action. Its just the definition that needs concensous.
I left out religion deliberately because it was not my intent to use that line of argument.
If someone's religion forbids contraception, odds are abortion is already out the window, too.
Does development of a brain affect your measurement of humanity? Why not the process prior to that benchmark?
The entire point is that it is not just the mother's body in this discussion.
I am anti-war, and the government is absolutely the last group I would consider worthy of deciding life and death for anyone. However, this case just removed a federal mandate, so I call it progress.
You mentioned that you notice few (if any) women on this thread. I am one :) I left a comment above and you can read some of my notions there, if you are interested.
If an unwanted pregnancy is something a woman theoretically decides upon (pro or against), she might change her stance when the matter of fact indeed happens.
As much as of an opinion I might have, I never was in the situation to make this decision. I call myself lucky, this cup never came into my direction. And it won't; I am past the years.
I did read your excellent and in depth response about the situation regarding the law in Germany and your more personal opinion.
I disagree with Jacob vehemently as attempting to solve such an emotive and personal issue using rigid law is ridiculous, especially when it is debated and argued in law by mainly men. The issue of abortion being a mainly woman's choice is important simply for the fact that it is the woman who has to make the final decision and her who has to live mostly with the possible emotional consequences.
Outright bans written into law are wrong. Guidance within a legal framework is better, such as it seems the law stands in Germany.
Apologies for missing your gender and thank you for your reply and calm opinions :-)
Thank you very much for reading my long comment on this.
As far as laws are concerned, I think they are suitable for extreme cases. Existing laws and appeals to the courts are always only the very last resort, or should be (whereby I make an absolute distinction between natural persons in dispute with each other and disputes between natural persons and organs of another legal form).
However, where laws are rigorously exploited to have disputes settled by the courts, they are, in my view, used too early. Some laws, because they are anchored in criminal law, have a high fear potential. But it is interesting, as with this abortion law in Germany, that although it is a criminal offence, the custom and acceptance of abortion is nevertheless high. The large loophole that this law offers is used by the majority, I think. Therefore, and although it is criminalised, the legislation seems less threatening, at least in this country.
The tendency to use the courts too early is one that I think has increased. Alternatives, for example, such as preliminary talks, dispute mediators, therapeutic and other services, etc. seem useful where they are properly applied and work towards the mediating outcome.
... Sometimes I think the cries for "there should be a law!" are an expression that shows that people indeed don't know much about the fact what written law actually means, and what long term consequences it can have, once a law has finally been passed. It's very hard to get rid of it.
It is true that the women who have had an abortion are usually more emotionally and psychologically burdened than the men involved (although I think the men can have equally intense feelings of loss and I am not denying that to anyone).
Good bye to you. ... Oh, where are you located, may I ask?
I'm English but have been resident in Thailand for 11 years now.
I’m not aware of many people being advocates for abortion, but there are certainly many who are advocates for a woman’s right to choose to have one. Not the same thing.
Alito’s opinion doesn’t exactly do that. He wrote “return the issue of abortion to the people’s elected representatives” which is effectively a wink, wink, nudge, nudge to Republicans who want to outlaw abortion at the national level.
Yes, the same thing.
And that sounds like a repudiation of judicial activism by appointed judges in favor of the alleged purpose of representative government. Even per the minarchist dunce cap rules, this is real progress away from dictatorial mandates.
I guess we’ll have to agree to disagree.
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