gracchusdixit

Imagine that you are home one night, all alone.  There is a knock on the door.  You open it a crack and peer into the dark.  With a violent shove, a stranger pushes his way in.  He demands the right to occupy your home, to be fed and cared for, and you are too afraid to say no.  As the weeks go by, the stranger refuses to leave, and you begin to wonder if your nightmare is ever going to end.  Then, you finally get a moment alone to call 911.  The police arrive, and you tell them your story.  They issue a warning, not to the stranger who has invaded your home, but to you.  You have no rights, they say.  Your only choice is to suffer the intrusion.  When you try to protest, they turn their backs and, with a dismissive shrug, walk away.

This, in effect, is what just happened to the more than two million women who live in the State of Alabama.  They have been told by the legislators of that state, almost all of whom are white men with a median age of nearly 60, that they must endure pregnancies they do not want, must allow their bodies to be occupied against their will, and have no say about how they will live the rest of their lives.

Alabama has just passed the most sweeping anti-abortion bill in more than half a century.  It bans all abortions, with the sole exception of a “serious” threat to the life of the mother, defined in the narrowest way possible.  It explicitly outlaws abortion from the moment of insemination, even if a woman is the victim of rape or incest, regardless of her age.  Under this law, a 10-year-old girl, raped by her father, will be required to give birth to her own brother-son, and any physician who helped her to put an end to this moral tragedy would be declared a felon, indicted for homicide, and sent to prison for 99 years.  

How, it must be asked, can those who so loudly insist on the “sanctity of life” so readily desecrate the lives of the living?

The answer is that the Alabama anti-abortion bill is a stalking horse, designed, not to become law, but to topple existing law.  Its target is Roe v. Wade, the 1973 Supreme Court decision that, for the first time in our history, granted women the right to make their own reproductive decisions.  The Alabama bill is extreme, precisely because its sponsors hope to provoke a judicial showdown, in which the newly empowered conservative majority on the Supreme Court will either neuter or reverse Roe.

The rhetoric of the Alabama anti-abortion bill and others like it exudes an odor of feverish desperation in a struggle to assert that zygotes, embryos, and fetuses are “persons”.  Without legal “personhood,” they cannot be said to have any rights, let alone rights that supersede those of the women whose bodies they inhabit.  Hence the desperation.

The assertion that fetuses are entitled to the rights of “personhood” relies on some combination of three arguments:  legal, medical, and theological.  None of them holds up under even the slightest scrutiny.

Our legal system derives from English “common law,” in which fundamental principles evolve slowly from the convergence of statutes, judicial precedent, social consensus, and common sense.  The definition of “personhood” under that system goes back nearly 300 years to the seminal Commentaries of the English jurist, William Blackstone.  That definition was crystal clear then and hasn’t changed since.  “Personhood,” with all the rights and obligations it involves, begins at birth, because it is only then thats a “person” actually exists in the world.

The Alabama anti-abortion bill tries to skirt this inconvenient history by invoking “natural law,” a philosophical tradition, which holds that universal and timeless moral precepts can be derived from human nature and the nature of the world itself:

In the United States Declaration of Independence, the principle of natural law that “all men are created equal” was articulated.  The self-evident truth found in natural law, that all human beings are equal from creation, was at least one of the bases for the anti-slavery movement, the women’s suffrage movement, the Nuremberg war crimes trials, and the American civil rights movement.  If those movements had not been able to appeal to the truth of universal human equality, they could not have been successful.

This is a preposterous perversion of “natural law”.  It is also deceptive and deeply offensive.  

It is deceptive, because it twists the language, “all men are created equal,” to mean “all human beings are equal from creation,” insinuating that “creation” and “conception” are one and the same.  The Declaration of Independence says nothing whatsoever about “conception,” nor, for that matter, does “natural law.”

This language is offensive, because it suggests that women who want the right to make their own reproductive decisions are as guilty or sinful as slave-owners and Nazi war criminals.  Coming from the State of Alabama, which once committed treason to preserve the institution of slavery, such a charge is, to say the least, worse than ironic. 

The medical or biological arguments for fetal “personhood” fare no better than the legal ones. There is, in fact, no scientific concept, category, or classification called “personhood”.  Medical science cannot therefore be called upon to validate a concept it does not recognize.   That, however, is precisely what the Alabama anti-abortion bill tries to do:

Abortion advocates speak to women’s rights, but they ignore the unborn child, while medical science has increasingly recognized the humanity of the unborn child.  Recent medical advances prove a baby’s heart starts to beat at around six weeks. At about eight weeks, the heartbeat can be heard through an ultrasound examination.  A fetal Doppler can detect a fetal heartbeat as early as 10 weeks. As early as six weeks after fertilization, fetal photography shows the clear development of a human being. The Alabama Department of Public Health publication “Did You Know . . .” demonstrates through actual pictures at two-week intervals throughout the entire pregnancy the clear images of a developing human being.

This is a stew of bogus science and outright fabrication.   Consider just one of those fabrications:  

Recent medical advances prove a baby’s heart starts to beat at around six weeks.  

The purported “medical advances” this statement cites aren’t named or sourced, because they don’t exist.  Nor,  at six weeks, does a “baby’s heart,” because there is no “baby” at six weeks, let alone a “heartbeat”.  There isn’t even a fetus.  There is only an embryo the size of a pea.

The Alabama bill was able to invoke “medical science” to justify its nonsense, because the Supreme Court of the United States did something similar when it handed down its decision in Roe v. Wade.  Rather than recognizing a woman’s unconditional right to make decisions about her own body, the Court declared that abortion was permissible only up to the moment of “viability”.   This supposedly “scientific” standard was problematic from the day the Supreme Court adopted it. 

To begin with, it begs the question of what “viability” actually means.  Does a brain-dead fetus qualify as “viable,” because its pulse can be sustained outside the womb with respirators and feeding tubes?   Does a fetus destined to be born without limbs or a spine meet the same standard?  These are cruel questions, I realize, but the greater cruelty is that the Supreme Court didn’t bother to ask, let alone answer, them. 

Moreover, what “viability” meant in 1973 is not what it means today or will mean in 2023.  We now have the capacity to sustain biological life for years or decades without there being any semblance of meaningful human life.  On what logical or moral grounds should the lives of women be chained to such an elusive standard?

Thus is it that anti-abortion zealots are left to fall back on theology and religion to justify their case.   Which only makes their case even worse.

The Bible says nothing about abortion and little about the beginning of life, and most of what it says about the latter is vague or ambiguous.  Christian fundamentalists who claim a Biblical imprimatur for their denunciation of abortion are simply making it up.  The Catholic Church’s view that life begins at conception is dogma, not scripture, but is no less fictional.  It was invented out of whole cloth in 1869 by the ultra-conservative Pope, Pius IX, to whom we also owe the loony notions of an “immaculate conception” and “papal infallibility”.  

Even if there were a bona fide religious justification for opposing abortion, it would be irrelevant.  The Constitution of the United States guarantees freedom of religion and freedom from religion.  No particular set of religious beliefs can be imposed upon those who do not subscribe to them, nor can they be used to make laws that apply to the nation as a whole.  Religious arguments against choice and abortion are thus the weakest arguments of them all.  They have no claim on those who hold different beliefs or on those of us who have no religious beliefs at all.  

None of which will stop the so-called “pro-life” movement.  Its acolytes are determined to end reproductive choice, control the lives of women, and punish them for their sexual behavior.  They are little different from the Puritan fanatics who condemned and hanged 19 innocent people for “witchcraft” in Salem in the 1690s.  No amount of logic, reason, or precedent is going to deter them.

The mistake made by those who support choice has always been their moderation in the face of unyielding and fanatical opponents and their willingness to accept offers of half a loaf in the hope of getting a few crumbs.  Roe v. Wade was never strong or comprehensive enough.  The protection it provided to women was explicitly “qualified”.  Its foundational argument, that women have a limited “privacy” right under the Due Process Clause of the 14th Amendment, was questionable and weak.  That weakness made Roe vulnerable from the start, which is why it is now under attack.

If women ever hope to enjoy the freedom they deserve, if they ever hope to defeat those who are hell-bent on denying them their freedom, it will not be enough to preserve Roe v. Wade.  They must demand more than conditional or “qualified” rights.  It is time for them to demand choice without compromise.