Government in the womb
On the Supreme Court’s expected decision to eliminate abortion rights.
Government in the womb
Ryan McCarl
Five Supreme Court justices are preparing to eliminate women’s constitutional right to decide for themselves, in consultation with their physicians, whether to continue an early-stage pregnancy. This will allow Republicans to enact laws throwing reproductive health professionals and the women they serve in jail.
Almost fifty years ago, in Roe v. Wade, the Court struck down a Texas statute that made abortion at any stage a crime. Conservative activists, animated by a mystical belief in fetal personhood, have fought for decades to restore such criminal penalties for abortion. The Court is preparing to grant them their wish.
In Republican-run states, each woman’s individual circumstances, healthcare needs, and personal values will be rendered irrelevant as their power to make reproductive decisions is transferred to the government. Republicans will elevate the supposed rights of a fertilized egg, embryo, or fetus above those of the pregnant woman. The effect of these abortion bans will be to treat women as government incubators and conscript their bodies to the conservative cause.
Conservatives do not see this as an encroachment on liberty. Rights to bodily autonomy and privacy interfere with the conservative project of improving society’s morals by regulating sexual behavior, so conservatives do not recognize or value those rights. Their concept of liberty includes a right for gun aficionados to own semiautomatic weapons, but not a right for women to make their own reproductive decisions in the safety of a doctor’s office rather than in an alley and under threat of criminal prosecution.
Anti-abortion activists claim to believe that at the moment of conception or soon thereafter, a fertilized egg (and later embryo or fetus) acquires personhood and the rights that personhood entails. They say that this entity, which begins as a clump of insentient and unconscious cells and which is wholly dependent on the mother’s body for survival, has a “right to life” that overrides the mother’s right to make decisions about her body free from government interference. They say that terminating this biological potentiality is equivalent to murdering a conscious human being who is part of a family and community.
I question whether such beliefs can be seriously held, but people may believe in any absurdities they like so long as they do not try to force those beliefs upon others.
Unfortunately, social conservatives are rarely satisfied with the live-and-let-live condition of freedom, and they seek to impose their moral code upon others by force. Though presumably they would not want the government forcing them to have abortions, they ask the government to force women to either continue an unwanted pregnancy or face criminal prosecution. But these busybodies who think they are better positioned than individual women to make women’s reproductive decisions are spectators with nothing at stake and no specialized knowledge to offer.
The central task of the Supreme Court in our constitutional system is to limit the power of such meddlers to impose their preferences upon their neighbors. Federal judges guard the limits of government power: the boundary between matters of right and matters of politics. When a decision is reserved to individuals as a matter of constitutional right, third parties who feel strongly about the decision, but do not stand to suffer legal harm if they do not get their way, cannot force their point of view on the individuals most directly concerned.
Once the Supreme Court has eliminated the right to reproductive privacy and placed women at the mercy of fanatics, Republican politicians across the country will declare open season on bodily autonomy. They will introduce police officers into the medical clinic and override individual reproductive health choices with one-size-fits-all regulations. It is a testament to the power of self-deception that these same politicians call themselves champions of limited government.
Ryan McCarl (Home | LinkedIn | Twitter) is a founding partner of Rushing McCarl LLP, the author of Elegant Legal Writing, and a former research fellow at the UCLA School of Law.
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