This issue doesn’t belong in the courts

If a 2018 Gallup poll is any indication, the country is in perfect equipoise regarding abortion. Forty-eight percent of the respondents said they’re pro-choice and exactly the same percentage said they’re pro-life. Only 4% said, “None of your business.”

The default assumption about situations like this is that they reflect compelling arguments on both sides of the issue. But in this case, the stalemate may be due more to the weakness of those arguments. If no rational appeals can move either faction off dead center, that has important implications for how to get a resolution.

To the combatants, it’s all out war between “Women have a right to control their bodies” and “The unborn have a right to life.”

photo of young woman holding pregnancy test while sitting in bathroomlightfieldstudiosStarting with “Women have a right to control their bodies,” they do, but that’s because everybody does—women, men and everybody in between. For each of us, the plane of our body is a nearly impervious moral boundary. You are near sovereign over your insides. That’s why you can’t be subjected to invasive medical treatment without your consent. If you are, that’s assault.

Not even dead people lose that protection. If you need an organ transplant, you can’t strike a deal with your friendly neighborhood mortician for a suitable organ. Organs are available only from people who’ve consented, while living, to their usable organs being harvested when they die. For potential donors who haven’t given their consent, somebody authorized to act in their stead has to give it. When people die, they don’t become freely available resources for the use of the living.

In most contexts, there are no liberals and conservatives about what’s inside the plane of our bodies. Everybody’s a libertarian. So when a woman is pregnant, on this line of argument, whether the fetus has a right to life isn’t the only pressing question. The other one is how it got where it is. If it’s inside the woman without her permission, even through no fault of its own, it’s where it has no right to be and may be expelled.

Rigorous pro-lifers will have none of this, pointing to abandonment “at will” as an alternative to abortion “on demand.” To protect the fetus’s right to life, they absolve women of all but minimal responsibility for their newborns, women being perfectly within their rights to hand their infants off to someone else. In addition to adoption, every state in the country has some version of “safe haven” laws permitting a woman, without criminal liability and no questions asked, to abandon her infant at a location where it will get immediate care, such as a hospital, a police or a fire station.

Safe haven laws are motivated by the belief that it’s better, all things considered, for a child to be in the care and keeping of someone willing and able to provide for it, even if not the child’s natural parent. It’s hard to imagine anybody disagreeing with that. But there’s no common ground between the opposing sides here because reproductive technology doesn’t allow for fetuses carried by the unwilling to be transferred to women willing and able to see them through to live birth. Currently, the only way to extract an unviable fetus is to destroy it. Pro-choice advocates accept that when it keeps a child out of unwilling hands. But opponents argue that a fetus’s right to life is an absolute moral bar to destroying it for that reason exactly because no-fault abandonment is an alternative.

Smarter people than I am have labored to break this impasse by deploying various arguments from analogy, because that’s pretty much all they’ve got. But all such arguments suffer from the same defect.

Bodily sovereignty arguments invoke analogies like this: Just as someone in kidney failure through no fault of his own doesn’t have the right to one of your kidneys without your consent, by analogy, the fetus’s right to life doesn’t give it the right to occupy and be sustained by a woman’s body unless she’s consented to it.

And there’s no shortage of analogies on the other side. For example, if somebody innocently enters your home by mistake through an unlocked door, it would be wrong for you to kill him even though, lacking your permission, he has no right to be there. Similarly, it would be wrong for a woman to abort a fetus just because it got where it is without her permission.

But here’s the thing. Pregnancy has no analogues. Being pregnant isn’t like donating an organ to someone entirely distinct from you nor like hosting a clueless intruder in your house. You don’t inhabit your body in the way you inhabit your house. You are your body in a way that you’re not your house. If being pregnant is a matter of two bearers of rights occupying the same space, then nothing else is like that. So arguments from analogy are of little use in sorting all this out.

The late U. S. Supreme Court Justice Antonin Scalia concluded his searching dissent in Planned Parenthood of Southeastern Pennsylvania v. Casey, the now controlling abortion precedent, by saying that this issue doesn’t belong in the courts at all but should be left to democratically elected legislative bodies. But in the same case, his colleague Justice Harry Blackmon, who’d written the majority opinion in Roe v. Wade several years earlier, reminded Scalia that it was naïve to think that turning the issue over to the legislative branch would keep it out of the courts.

I’ll go Scalia one better. If neither the judiciary nor the legislative branch can lead us to peace and comity, how could we do worse by leaving the questions that nobody else can answer convincingly up to women and their doctors? The only burden that approach would impose on pro-lifers is living with the knowledge that somebody, somewhere is doing something they vehemently disapprove of. But sparing pro-lifers that knowledge by banning abortion would impose a much heavier burden on women forced to bear unwanted children, even where no-fault abandonment is an option.

Will this resolution result in people making wrong decisions? Doubtless. But if mistakes are going to be made, it seems far better to risk them being made one person at a time than at scale by coercive state power.

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Leon Galis

I'm an Athens, GA, native and have been living in Athens since 1999 after retiring from the faculty of Franklin and Marshall College in Lancaster, PA. Since 2008 I've written approximately 80 columns for the Athens Banner Herald and a handful for Flagpole Magazine in Athens.