Will SCOTUS ‘Abort’ All of Us?

May 19, 2022 by David Fowler

Will SCOTUS ‘Abort’ All of Us?
Justice Samuel Alito’s leaked abortion decision in Dobbs v. Jackson Women’s Health Organization seems to have put many pro-life policy advocates in a rush to enact newer, stricter laws prohibiting doctors from performing abortion procedures. But by Justice Alito’s legal logic, all of us, the born and the unborn, are not much more than an aborted fetus. To be pro-life, one’s view of law and the constitution must go much deeper than prohibiting abortion procedures.

Of course, me writing this commentary and you reading it means neither of us is an aborted fetus in any literal sense. But the logic of Alito’s opinion leaves all of us aborted in an anthropological sense, i.e., cut off from our humanity.

The Basic Human Reality Justice Alito’s Opinion Denies

Saying Justice Alito’s opinion denies any knowledge of our humanity might sound as dumb as the philosophy professor telling a first-year college student that he or she can’t prove anything exists. We all know we are real and that things exist, but the point is well taken; everything we know through our senses could just be our mind playing tricks on us. There must be something objective outside of us to make sense of our subjective selves and experiences.

Similarly, we can’t know what being human means—the anthropological meaning of our existence—unless we have some absolute standard by which it can be determined. Letting a majority of registered voters (not even all persons) in each of the 50 states determine the anthropological meaning of the unborn is downright evil.

All of us come into being the same way, the joinder of male sperm with a female egg nourished in a uterus. All of us are fundamentally something or none of us is anything.

But that is not principally what I am driving at by saying we are all, in a way, like an aborted fetus.

A Fundamental Human Reality is Aborted

An aborted fetus is cut off from all other humanity, and it is in that sense Alito left all of us in an aborted status. What it means to be human must inform and define what it means to be a person, which, in turn, informs and defines all other relationships we have. 

But the worldview underlying Alito’s opinion leaves us cut off from any objectively enduring real and true unified family relations. Here is how he did it.

Alito wrote that his legal reasoning should not be understood to undermine the Court’s decisions regarding de-sexed human beings, namely, Griswold v. Connecticut dealing with the right to sterility by means of contraceptives, Lawrence v. Texas dealing with sodomy which is sterile intercourse, and Obergefell v. Hodges dealing with de-sexed marriage which is sterile absent the intervention of third party to provide either egg or sperm.

In other words, Alito is implying that the one thing he does know about humanity, at a fundamental level, is that we should be considered de-sexed and sterile. That understanding of our humanity is apparently still constitutionally protected; unlike the humanity of unborn persons, this de-sexed, sterile understanding of persons is not subject to majority vote in the states.

But that means other anthropological words—mother, father, husband, wife, grandparent and grandchild, aunt and uncle, and cousin and nephew—have no true, objective unified meaning.

Ironically, that means all [i] those relationships are now subject to majority vote—that of the U.S. Supreme Court.

God does not give us the option of having our own, personal meaning. It will come from Him, or it will come from whoever else we give ultimate power to, which is now the U.S. Supreme Court.

What we are witnessing in our public lives is, in large part, the fruit of the Court’s long war against God and, by extension, its constitutional disavowal of our humanity. 

The pro-life community needs to enact any new abortion law based on a framework that makes judges decide their constitutionality based on whether the unborn are persons under the Fourteenth Amendment.[ii] To do any less is to leave us “aborted’ from fundamental aspects of our humanity.
To learn more, watch this less than 3-minute video by legal scholar Jeff Shafer. 
[i] Under this new understanding of law as made up by courts and legislatures apart from any given realities, we come into this world cut off—aborted—from all objective human relationships. Constitutional law even says the woman who is pregnant is not a child’s mother until she subjectively decides to have the child; being pregnant does not objectively constitute one a mother.

[ii] Some might think the reversal of Roe will bring an end to lawsuits over the constitutionality of state abortion laws. But don’t be naive. Attempts will be made to have such a law declared a violation of the state’s constitution. Those interpretations can only be voided by state constitutional amendments, like the one Tennessee adopted, or by having a federal court determine that the state court’s interpretation directly violates the 14th Amendment, which is “supreme law” over state constitutions. The latter is what I am urging states to do. Passing and defending a state law protecting the life of unborn persons as required by the 14th Amendment’s guarantee of due process and equal protection is easier and far less expensive than having a constitutional amendment adopted.

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. 

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