“Every man has a property in his own person. This nobody has a right to, but himself.” John Locke
Given the recent firestorm over the leak of Associate Justice Samuel Alito’s preliminary opinion on Roe vs. Wade, John Locke’s quote above provides existential meaning to the concept of owning oneself; discard all the other noise we hear, such as the fact that the US Constitution does not mention abortion, as it’s all irrelevant because people are not property to be defined, limited or treated in any way as government may see fit.
The constitutional issue with the Roe vs. Wade decision that makes it vulnerable to reassessment is that it was based on fetal viability, a judgement that can change with advancements in science; while that may be a medical consideration, it certainly should not be a legal one. Any consideration of liberty as protected by the constitution guarantees that all human beings are the sole decision makers regarding any and all aspects of their own bodies, such as a woman’s right to consider whether or not to terminate her pregnancy.
The political issue with Roe vs. Wade includes states’ rights, i.e. do the states have the right to legislate on this issue. That has been a heated debate since the 1982 proposed amendment that provided for just that; it cleared the Senate Judiciary Committee with the support of then Senator Joseph Biden, who referenced his moral dilemma as a Roman Catholic as a reason for doing so. However, the proposal was defeated in a Senate vote, with Biden doing one of his famous flip-flops by voting against it; subsequently, he has reversed himself various times, but for now he is in the pro-choice camp.
While there have been challenges to Roe vs. Wade over the subsequent decades, it has survived until now, assuming that the justices reported to agree with Alito continue to do so. As Chief Justice Roberts said today, while the leaked opinion is what Alito wrote, all else is rumor and conjecture until the court actually rules. While there are reports that the leaker is known, identity has not been confirmed, so the motive is to be determined.
In his piece in the Washington Post Tuesday, George Will outlined the four points of Alito’s opinion about Roe vs. Wade:
- It made moot all state laws and civil discourse regarding abortion and created a bitter polarizing political and social argument; it noted that about a third of the states had already passed freedom of choice laws prior to the ruling, with likely more to follow.
- There was no historical or judicial precedent on which it was based.
- The court respected precedent, but not as an absolute.
- The court did have a history of reversing precedents, many times for the better.
He summarized Alito’s opinion not as a reversal, but as a “turning away” toward a new starting point. He remarked that “Hysteria is the default mode of many Americans of all persuasions who engage in civic arguments. So, by late June, when the court would normally be expected to issue a momentous opinion, such people will have worked themselves into an apocalyptic frenzy.” He also noted that should the court go with Alito’s opinion, it would mean that the states would reacquire what they had lost in Roe vs. Wade, and make laws as they see fit, as some already have.
What’s missing in all this is some commonsense, specifically making it easier for women to avoid an unwanted pregnancy to begin with. Well that too has a surprising history. Republicans have repeatedly tried to make birth control pills available without a prescription; however, Planned Parenthood brings in 1.7 billion dollars in revenue annually from contraception services, and they are a big donor to Democrats. It is notable that the founder of Planned Parenthood, Margaret Sanger, is a supporter of eugenics, a racist, and believed that her organization would do a great service in limiting the black population. Health insurance and pharmaceutical companies are also big donors to Democrats, and they all want birth control pills subject to health insurance reimbursement. Surprisingly, the champion fighting against this cabal is none other than Rep. Alexandria Ocasio-Cortez; at last something to support her on.
What’s really missing in all this is John Locke’s natural law of man owning himself. When we consider this we understand better that neither the Republican nor Democratic parties respect the fact that whether the issue is abortion rights or COVID mandates, government has no legitimate involvement. The hypocrisy of both parties shows in their respective policies regarding both these issues. Approximately 63% of all Americans, including 78% of Democrats and 49% of Republicans, support free choice. Considering the fact that the American electorate is approximately 30% Democratic, 30% Republican, and 40% independent, the scales tip with independents. However, jurisprudence is not a popularity contest as there is something far more important than that at issue.
Religion plays an outsized role in all this given the enormous power of Roman Catholicism and other Christian Sects. If you think abortion is wrong, don’t get an abortion, but it’s not acceptable to impose your religious views on others. Why should a Jew or Muslim, a Buddhist or a Hindu, for example, have to live according to your beliefs? If you don’t get this, please don’t ever use the phrase “religious freedom” again. Believe whatever you want, practice whatever you believe, but never impose those beliefs on others as that is a violation of the US Constitution and the existential liberty of all mankind. Without respecting that we fail as a society and invite the tyranny where government actually has a say in what you as a human being actually are, i.e. free or slave.