Rights, Implied and Imperiled



Blind Justice Statue at the Holmes County Courthouse
in Millersburg, Ohio, 2017/ Photo by Chris Light

I'm by no means a Constitutional Law scholar, but I spend a lot of my time thinking about civil and human rights. These are the fundamental building blocks of our society, the most basic contracts that govern our relationships between each other and, perhaps more importantly, between ourselves and the state. Friday's Supreme Court decision to overturn Roe v. Wade has troubled waters that have been relatively stable for my entire life. Like many others, I'm working on wrapping my mind around the implications.

No matter how you personally feel about abortion, or about the legal arguments in Roe v. Wade, we need to recognize (or create) a Constitutional right to privacy now more than ever. Where we do not violate the rights of others, where we do not cause others harm, the state has no role, and neither, by extension, do our neighbors. Even for an "originalist," I just can't see how the framers and the founders didn't see the world this way, and we have no business emulating their oversights. (Race and gender do not rightfully confer subhuman status, even if they did in the 1860s.) That was the whole point of liberation from tyranny. This is meant to be a nation where our rights to coexist, to live, and to love, shall not be infringed. That's not judicial activism. It's just sound interpretation.

At the same time, whatever religious or scientific basis you may use to articulate the moral questions involved in abortion, the possibility remains that there might be a clash between the rights of competing entities. When and how those rights are established is a matter of unresolved (and possibly unresolvable) debate. Different religious traditions recognize "life" at different times in the development of a human fetus. Judaism, in particular, has a long tradition of holding the fetus to be a part of a woman's body, not a separate entity, until it takes its own breath. The very concept of a heartbeat varies across scientific and religious traditions. Even if you concede that in the decision to terminate a pregnancy it is possible that more than one entity can come to harm, and the needs of more than one entity ought to be considered, our legal code around questions of homicide and responsibility for dependents comes into play here, but so does our code around involuntary servitude (as well as unreasonable search and seizure in the case of provisions for the enforcement of anti-abortion laws). If a person manages to come into our home without our consent and establishes that they are absolutely dependent on our care, are we responsible for their welfare if we evict them? Is the state responsible? (How many homeless people die on the streets?) I say all this to establish that abortion is a complex issue.

It is exactly this kind of complexity that requires us to uphold the separation of church and state. If different religions establish different criteria for the onset of "life" and therefore the onset of rights of the individual, then the state cannot rightfully adopt criteria based on one religious interpretation over another. If there is scientific consensus around the notion of "viability" then that could be a reasonable criterion for the state to establish legal precedent, but in cases where this is not certain, the state should be compelled not to weigh in. This is a matter of individual conscience.

For me, though, questions about relationships between consenting individuals, and the requirement of any benefits provided by the state being provided evenly across the population, are not complex at all. Unless someone is coming to harm as a result of something you are doing (or not doing), the state has no business regulating your actions. And if the state wants to recognize partnership rights based on an official status (marriage), then that status must be available to anyone who wants it and can prove that their commitment is commensurate. Period, end of story.

Since Friday, I've felt like the sands are shifting beneath my feet. An especially uneasy feeling for someone comfortable with the status quo when it comes to our recent history of expanding, not retracting, civil rights in the United States. We are entering a moment of re-litigation, of re-sorting, and a new requirement to argue and to fight where we see injustice. This society is (and must be) ours to shape. For our children and their children, we must do so with integrity, humanity, and sound philosophical precedent (fairness). We must use our power for good.

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