Editor’s Note: This article is part of a symposium titled “Abortion after Dobbs.” We asked seven Commonweal contributors, from various backgrounds and with various views, to discuss what the Supreme Court’s recent decision is likely to mean for abortion law, American politics, and the creation of a “culture of life” worthy of the name.
Dobbs leaves us with two fundamental questions: What is a person? And who should decide? The answer to the first question seems to me straightforward. At no point in the first and second trimesters, nor in the third, when the mother’s life or health is at stake, does the fetus—sans thoughts, sans emotions, sans experiences, sans everything—have any rights that override those of the woman of whose body it is merely an infinitesimal part during the time when more than 90 percent of abortions currently take place. Unlike its host, it is a potential person, not an actual person; a future person, not a present one. That millions of Americans think differently is a source of puzzlement and distress to me, as well as, I hope, humility. But with all the good will I can muster, I’m unable to find any plausibility in their view.
Suppose a state legislature outlawed sex-reassignment surgeries, judging them unnatural and offensive to God. The Supreme Court would (probably) declare that law unconstitutional. Since the Constitution does not expressly mention sex-change operations, there can be no constitutional right to one. Instead, the court would, or should, rule that a state legislature is not allowed to legislate its religious beliefs, even if they are the beliefs of a majority of the state’s citizens.
Now, what are the beliefs on the basis of which a legislature would likely outlaw abortion? Presumably that the fetus is a human person, entitled to the state’s protection. What reason could they give for that conclusion? Crucially, they cannot say that a fetus has a soul. That is a religious belief. It is held almost exclusively by religious persons and defended almost exclusively with religious reasons. They could say that from conception the fetus is a full human being, with a range of human attributes. But they would have to stipulate that belief and then refuse to hear expert witnesses, most of whom would rebut it. They could claim that the fetus contains a human genome, and that anything with a human genome is entitled to be considered human and protected by the state. But every cell in the human body—every hair, every fingernail, every bead of sweat—contains a human genome, which is just a complete set of human DNA. Of course, unlike those tissues, the embryo (its proper name during most of the first trimester) will, with a great deal of effort, pain, and sometimes danger on the part of its host, become viable. Virtually no one argues that it deserves no protection once it is viable—at twenty-four to twenty-eight weeks. But by then, there is virtually nothing to protect it from. Fewer than 1 percent of abortions take place after viability.
Is there really any doubt that an abortion ban would be a religious imposition? Among the nonreligious, there is very little support for restricting abortion. A majority of Americans belonging to each of the major religions, excepting Mormons and Evangelical Protestants, would allow abortion in some or all cases. As far as I know, Mormons haven’t been active in opposing Roe. The only two groups who have been notably active are Evangelical Protestants and Catholics, especially the Catholic hierarchy. The bishops have maintained a steady opposition since 1973, but with little effect, so they deserve only a modest share of the blame for Dobbs.