Our theme for the month of June is “sex and the church.” To read posts from our first pass at this theme, check out our June 2018 archives.
[A]t twelve weeks the “unborn human being” has “taken on the human form in all relevant respects.” – Samuel Alito, draft opinion in Dobbs v. Jackson Women’s Health Organization
I, too, have taken on the human form in all relevant respects, although I couldn’t find mention of it in Alito’s draft opinion… There is almost no part of the human body that does not transform in pregnancy. One way or another, your flesh will be torn asunder, whether what you are carrying feels like an invited guest or an invader. – Irin Carmon, “I, Too, Have a Human Form”
What is a person? I couldn’t give a particularly confident answer. Philosophers, theologians, and other thinkers have debated the question for centuries. When personhood starts, when it ends, how it manifests itself, what meaning it even has in the first place—these are all deeply complex questions answered differently at different times and by different cultures and religions. (Notably, however, there appears to have never been a question that men are persons, especially white men. This is in stark contrast to the groups of people whose personhood has been questioned or denied: women, children, disabled persons, enslaved persons, and various nations’ indigenous persons, for starters.)
The stakes of personhood go well beyond metaphysics given the myriad legal rights that attach to persons. (Of course in the law, “persons” also often include corporations and other organizations through a legal fiction.) And one of the more crucial questions regarding legal personhood is when it starts—specifically in the context of abortions. With his forthcoming Supreme Court opinion in Dobbs v. Jackson Women’s Health Organization, self-described Republican operative and all-around crank Samuel Alito has taken a large step towards incorporating his own religious view of personhood’s beginnings into federal law.
Alito’s Dobbs opinion, joined by four of the five other Republicans on the Supreme Court, doesn’t quite establish fetal personhood. It doesn’t have to, yet. For now those justices will settle for overturning a landmark half-century-old legal precedent, reaffirmed repeatedly and as recently as 2016, simply because they now wield enough unreviewable power to do so without consequence. Their decision will complete a fifty-year crusade to impose a specific Christian morality onto all Americans. And the Dobbs outcome will be bad enough—women will die because of five lawyers’ religious beliefs. But make no mistake: soon there will be a series of lawsuits claiming that abortion itself is unconstitutional on the theory that personhood begins at conception. There is no doubt in my mind that these same five justices will run with that argument. Indeed, thirty-nine states currently recognize fetal personhood and have fetal homicide laws. When Dobbs comes down, prosecutions will rise. Many women will go to jail. More will die.
I would be remiss not to say that, at this point, the Dobbs opinion is not published and is therefore not in effect. Abortion is still legal everywhere (some blatantly unconstitutional state laws to the contrary). It is technically possible that the opinion will change or that someone will withdraw their vote. But that’s not going to happen. Roe v. Wade will be gone within a month.
When the cases arguing for fetal personhood start rolling in, they will be premised on a particular strain of evangelical Christian thinking that has dominated the Republican Party since at least Reagan. Christian thought has varied on the beginning of personhood and the morality of abortion forever—some medieval writers thought personhood started at birth, some later thinkers thought it was at conception, some at a midway point. But by zeroing in on various biological features of fetuses that can be shown through more modern science, the right-wing evangelical movement found a tangible foothold from which to wage decades-long cultural warfare. Making abortion a primary electoral issue every year with visceral stakes (they have hearts and toenails and sometimes move!) and wrapping it in Christian language (they’re children of God!) has proved to be a fairly successful strategy. Alito’s opinion in Dobbs echoes the cultural war he has been a zealous participant in by lengthily describing those biological features—facts that are entirely irrelevant to the case. In so doing, he is relying on a specific religious movement’s beliefs to craft federal law. The next step will be to extend the imposition of those beliefs. And naturally, by emphasizing fetal personhood and rights the Supreme Court will inexorably deny the personhood and rights of women.
I feel compelled to write about abortion because that burden shouldn’t fall exclusively on people who are capable of having one. I am not pro-choice; I am pro-abortion. Abortions should be accessible and affordable for anyone who wants one. I don’t particularly care if they’re rare or not. Whether or not a person chooses to have an abortion, how they became pregnant, the experience of pregnancy, the reasons for abortion—none of these questions are my business, and they sure as fuck aren’t Sam Alito’s.