31 March 2024
Women’s Rights Are Original
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The abortion of a non-viable fetus is not different than
removal of a skin tag. Or is it? In the analysis of Roe v. Wade, this is true until a human
fetus reaches viability-- the possibility of survival outside its mother’s
womb, i.e., when the medical criteria for being a living human creature are
fulfilled. However, in its Dobbs decision, SCOTUS decreed that in our federal
constitutional system such a determination is alternatively a political
decision to be made by representatives of the people in each state of the
union. This misrepresents the federal nature of our system of
government. The Dobbs ruling is not consistent with the
logic of the Court’s judgment in Brown v. Board of Education, which mandated
civil rights equal to every citizen of the country for formerly enslaved and
other persons of color. In Brown, the
Court prevented the states from independently setting racial qualifications
for a human being’s constitutional rights.
Yet it permits the states to distinguish between potential human beings
in Dobbs, depending on the ability of those organisms to live on their own
outside their mothers’ wombs. In other
words, the Court allows state governments arbitrarily to award constitutional
rights to potential human beings in Dobbs, although it had earlier denied the
states the ability to discriminate between different living human beings by skin-color
when depriving conscious humans of their civil rights. |
The Constitution stipulates that the federation is based on
certain common beliefs (truths) held by the people. Implicated in that stipulation is the common acceptance by the people of
the definition of individual personhood when it comes to the civil rights the
Constitution guarantees to citizens. The
right to life of those individuals is their most fundamental one, and certainly
cannot be subject to currents of political thought that may vary by section of
the federation. Moreover, so basic a
right should not be subject to changing codes of morality over time. Ironically, this is an instance in which the
concept of originalism does indeed defeat the concept of a living constitution. No matter how much the latest medical
technology allows us to stretch backwards an organism’s civic existence,
there is only the threshold of viability for it to cross before it merits being
treated as an independent subject of the rules of our society. (Even though that threshold is commonly widened
by several years after birth when it comes to criminal liability.)
A mother is graced with a biological power that not only
allows her to give birth, but also to nurture or interrupt, for any reason, the
growth of an organism in her pregnant body at least until its rights are reasonably
guaranteed by society’s rules, i.e., the Constitution. No provision or amendment of the Constitution
deprives mothers of that power.
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