The Legal and Philosophical Implications of Overturning Roe v. Wade {Guest Post}

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The following is part two of a guest post from Sri Preston Kulkarni, a democratic nominee for Texas’ 22nd congressional district in 2018 and 2020. 

Part one of this series discussed the policy implications of overturning Roe v Wade. Part two will pivot to the legal and philosophical impact. 

Obviously, there are many books on this topic, but I want to focus specifically on the draft ruling by Justice Alito, that this should be "left to the states." I have seen many op-eds recently (eg Peggy Noonan in the WSJ) claiming that leaving abortion up to the states is a "reasonable compromise." The problem with this is that if you really do believe abortion is "murder" then it is not at all "reasonable" to let each state decide if murder is a crime or not.  Conversely, if you do not believe that abortion is "murder" then letting state legislatures decide whether a woman can be forced to give birth against her will is not a "reasonable compromise," any more than letting each state decide whether to have slavery or not.  (If you think this is hyperbole, remember that the laws in Alabama and Oklahoma will not have exceptions, even for the LIFE OF THE MOTHER).

Clearly, whether this is "murder" or not is the heart of the issue, as is whether a fundamental human right can be taken away by the Supreme Court and given to each state to decide. My views on this are based upon my own experience in life, knowing many women who had abortions, and talking to many folks on the other side. I was actually asked about abortion many times on the campaign trail and I recognize that my own opinion differs from that of the median voter and may differ from yours.  I personally believe that abortion is not "murder" and consequently, any decision over whether the woman gives birth or not is completely up to the woman herself, in consultation with a medical doctor to assess health risks, period.

Any government interference between the woman and her doctor is a violation of bodily autonomy and fundamental human rights, in my opinion. (For those who want to draw a parallel to COVID vaccines, I believe that a global crisis that killed millions of people is a reasonable justification to require a shot similar to those we all got in order to enroll in elementary school, for that emergency period. I realize many people disagree with me. However, if you do disagree that requiring vaccinations in an emergency situation is justified, as did several members of SCOTUS, I don't see how you could also allow state legislatures to force generations of women to give birth, with all of the permanent consequences. The answer I've heard from people who oppose forced vaccinations but support forced births is that this is preventing millions of "murders.")

So then, to the central question, is abortion "murder"? No, it is not.

And I don't mean just that I personally believe that. Neither do most people who self identify as "pro-life", either. I know this because I asked them. Some people who identify as "pro-life" and even vote for pro-life candidates, when I ask them about criminalizing abortion, say things like, "I don't want anyone to go to jail, but I would never have an abortion." For these folks, the issue is one of terminology (and good marketing by the pro-life groups) because, legally speaking, they hold the same position as I. More on this in part three, "Politics".

If, however, they do want abortion criminalized as "murder," I  ask them whether they would support an exception for rape or incest. If they say yes, then I ask them, "would you also support an exception for killing a 1 year old baby who was the product of rape or incest?" (No one has ever said yes to that one.) When I ask why not, the usual response is something to the effect of, "Well, that's different", which is my point exactly. Abortion and murder are NOT the same thing.

What if they do not support that exception? (Personally, I think forcing a woman to give birth against her will, after sex and impregnation were forced upon her against her will, sounds like something out of ISIS or The Middle Ages; barbaric and inhuman.) But, in 12 states, Republican state legislatures have already passed laws that do not make these exceptions. And in 2 states, there are no exceptions even for the life of the mother. So, if the person says that abortion is "murder" and agrees with these laws that do not make exceptions for rape/incest, then I ask, "What should the maximum penalty be for a woman who gets an abortion? Life in prison or the death penalty?" Invariably, they say that the woman should not be punished.  (And this is not just an off the cuff reply. The biggest pro-life lobbyists will tell you that they try to ensure that the laws they lobby for do not allow prosecution of women, because they know how damaging that would be to their cause.)

And here is where the rubber meets the road. I ask again, "Well, what kind of "murder" does not punish the person who initiates the murder?" Most people stammer a little and reply something similar to the above, that those are "different things." And that's the crux of this whole issue. All of us instinctively know that abortion and murder are NOT the same thing, so we should reject language that purposefully confuses those 2 things, for political purposes.

Now, many sincere people hold divergent beliefs about these things in good faith, including many people close to me, and I don't want to minimize that. There are very difficult moral and philosophical questions here. But, that is EXACTLY why we should not shy away from addressing them, and confront the real implications of what our position implies, rather than papering over the issue (which I believe many pro-life activists do).

In 2016, Donald Trump, who was pro-choice until he ran for President, was asked if a woman should be punished.  Without thinking, he said "yes" and he was right. Because that is the true implication of saying "abortion is murder." Folks like Mike Huckabee tried to clean it up on TV the next day, but Trump was correct about what the Republican position implies. If our society decides that abortion is "murder," then we are explicitly saying that almost 1/4 of all American women (~33 million women currently) who have had abortions are all "murderers" or have "committed child murder." If we are not willing to say this, then we MUST confront the reality that abortion is not "murder," and admit at the very least, that it is something else.

The other tough question I got on the campaign trail was, "What is the difference between a child and a fetus?" My answer may have seemed harsh, but with such grave stakes, we cannot risk sugar coating this. My answer is that the difference between a child and a fetus is that one is a little person whom I can hold in my arms (and who I believe has rights as an independent human being).  I cannot hold a fetus without putting my arms up a woman's body and into her uterus.  And THAT, to me, is the fundamental difference. 

When people say that this SCOTUS decision is a "compromise," I strongly disagree. Letting state legislatures decide whether or not to force women to give birth is not a reasonable compromise.  Women's bodily autonomy is a fundamental human right.  I don't think the government should have any ability to interfere between a woman and her doctor.  That is not what Roe said, however. Roe made a distinction at "viability" which is currently estimated at 24 weeks. [One reason I disagree is that as medical technology advances, if "viability" gets pushed back, we are redefining who is a human being based on the latest invention, not any moral principle, but I realize that is not the majority position].

In practice, 91% of abortions are in the first trimester, less thaN 1.5% of abortions are done after 21 weeks, and these are basically all horrible medical situations that the state shouldn't be involved in anyway. Nevertheless, the ruling in Roe v Wade WAS the compromise between complete bodily autonomy and some concept of restricting abortions that the opponents asked for.

When Roe is overturned, it will set an EXTREMELY dangerous precedent for constitutional law.  This will be the first time that a fundamental individual constitutional right (established by the Supreme Court) will be taken away instead of given.  The implications do not just apply to abortions or pregnant women.  If this ruling stands, then there are many other things that SCOTUS could overturn. The court could let individual state legislatures choose whether same-sex couples can be banned from getting married, or banned from even having sex with each other at all. They could decide whether to prohibit the people of their state from buying contraception or even having interracial marriages.  While the last may seem unlikely, all of the others have actual political movements behind them. This is not a small detail. It is an earthquake in our legal and political system, and while it may not be quite the "Handmaid's Tale" yet, it is closer to that world than many of us ever thought possible in 2022.


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