Losing the argument

Those who support some kind of legal access to abortion are going to lose the debate if they keep putting forth dumb arguments like the following:

• Dobbs proves conservatives care more about the unborn than the born.

This conveniently ignores the primary pro-life premise that the unborn fetus and the born child are both human beings equally entitled to the pursuit of life, liberty, and happiness.

It isn’t so much that the born are subordinate in priority to the unborn in such thinking as the unborn are elevated to equal status with the born.

This may be wrong, but it follows logically from the premise.

• Dobbs proves that conservatives don’t care about women. Again, it isn’t so much that unborn are given priority over women as that the lives of the unborn are given priority over the preferences of pregnant women, but even then, consistent with pro-life principles, only up to the point where women’s lives are threatened (thereby permitting abortion only in cases where the actual life of the mother is at risk, and it becomes a choice between saving the life of one or the other).

If the fetus is a human being, then its right to life logically takes precedence over other rights.

• The “legitimacy” of the court has been severely damaged by Dobbs (but somehow wasn’t by Roe).

Legitimacy in politics means the possession of rightful authority, which flows from adherence to law. Nothing in Dobbs suggests that such adherence was lacking—the six members of the court that ruled to overturn Roe were put on the court through the same constitutional (“advise and consent”) process as the three judges in the minority; Dobbs was heard in the same fashion as other cases before the court; and both majority and minority issued the traditional opinions laying out the reasons for their positions.

Reduced to its essence, those making the illegitimacy argument are saying the court is legitimate only if it rules the way they want it to. But if anything, the legitimacy of a court is enhanced when it resists pressure and produces rulings that displease much of the public; were it otherwise, it would be a robed legislature rather than a court.

The loyalty of the justices is to the Constitution, not to Gallup polls with respondents who have only the haziest notion of the contents of that Constitution (indeed, much of our post-Dobbs polling suggests that those most upset over Roe being overturned don’t have a clue as to what it permitted or prohibited).

Public institutions become illegitimate only when they fail to adhere to the rules dictated by the process of self-government (the law) and/or clearly overstep authority conferred by law. Neither condition was present in Dobbs (if anything, the latter was in what Dobbs overturned, Roe).

• The kind of “original intent” argument relied upon by the majority in Dobbs and by more conservative jurists in general is to be rejected because some of those whose intent is being discerned were slaveowners or guilty of some other offense against contemporary sensibilities.

What this claim essentially amounts to is a rejection not just of original intent interpretations but of the rule of law itself, since it suggests that the inevitable moral defects of lawmakers renders the laws they pass in a democratic process null and void; we would thus, each of us according to our varied moral sense, be free to pick and choose which laws we would obey and not.

If our highest law of the land is merely a “slaveholders’ Constitution,” then that same document also leaves us free to amend it in such a fashion as to remove the effects of the slaveholding (as many thought had long been done), or, if that proves infeasible, to call for a new constitutional convention to undo altogether the mischief done at Philadelphia.

Barring such steps, the Constitution remains in effect and original intent should continue to dictate court rulings regardless of what we think of James Madison, George Washington and company (or of those who, later, made 27 revisions to their handiwork, including those that abolished slavery, granted women the right to vote, and gave that right to 18-year-olds).

In short, the pro-choice position might be mistaken for various reasons, but it behooves those of us on the other side to at least present their views fairly and accurately, and then explain why they are wrong.

The most important part of this involves articulating a persuasive definition of human life and identifying at what point, if any, during pregnancy it becomes present—if the fetus is merely a tomato, as so much pro-choice rhetoric callously suggests, then there is nothing to debate, because the interests of women are the only interest; but if it is something else (a human life?), then the nature of the debate abruptly changes.

“Reproductive rights” don’t matter if they come at the expense of a human life, and it is therefore necessary for abortion-rights supporters to prove that a 4-month-old fetus in the womb is something other than that.

So when does life begin and why?

If you are unwilling to answer those questions, your opinion on the subject is worthless.