Monday, December 27, 2021

Abortion and the Slippery Slope

 by Sherry F. Colb

During the Supreme Court argument in Dobbs v. Jackson Women's Health Organization, Justice Barrett asked the Mississippi Solicitor General, "Would a decision in your favor call any of the questions--any of the cases, sorry, that Justice Sotomayor is identifying into question?" Justice Sotomayor had expressed the concern that overruling Roe v. Wade would call into question other substantive Due Process cases like Griswold v. Connecticut (married contraceptive use), Lawrence v. Texas (same sex relationships), and Obergefell v. Hodges (same sex marriage).

The Mississippi Solicitor General said no, invoking two reasons. The first had to do with stare decisis and reliance interests. The second reason was that "none of them [Griswold, Lawrence, Obergefell] involve the purposeful termination of a human life." Most people listening to this exchange understood that to be a lie. The State of Mississippi almost certainly will not stop at prohibiting abortion while continuing to accept without challenge all of the other privacy rights protected in the past. In this post, I nonetheless want to explore a connection between the various rights at issue (including abortion) that challenges the "human life" distinction that the Mississippi SG drew.

The Obvious Link

In one respect, the link between the many cases is obvious. The Supreme Court has identified a right of privacy in the Due Process Clauses of the Fourteenth and Fifth Amendments. That privacy right protects unenumerated fundamental liberties, including the right to use contraception, the right to have consensual sex with another consenting adult, regardless of race and sex, the right to marry the adult partner of one's choice (assuming that the other adult chooses you), regardless of race and regardless of sex. All of these rights are features of the liberty that the Court has recognized as essential to living life as a free person with the choices that free persons must be able to make without government interference.

The problem with invoking this link to suggest that all substantive Due Process cases are in jeopardy is that we know the Court would not roll back all of substantive Due Process. Even Justice Alito--who dissented in Obergefell and might well want to overrule it now--does not want to overrule Zablocki v. Redhail (recognizing a right of opposite-sex couples to marry) or Loving v. Virginia (recognizing a right to marry interracially). None of the Justices who have made plain their commitment to denying women the right against forced pregnancy and labor would permit laws barring marriage (the foundation of non-sinful intercourse) or interracial marriage (such as Justice Thomas's marriage to Virginia Thomas). So maybe there really is no slippery slope, right? Wrong.

The Less Obvious Link

Something besides the substantive Due Process privacy rubric unites the right to abortion, the right to contraception, and the right to have sex with and marry people of the same sex. That common element is a false equivalence between the failure to create a new person and the killing of an existing person.

Abortion is a prime example of the false equivalence. Because life, according to the devout, "begins at conception," the devout say that terminating a pregnancy consisting of non-differentiated raw material (whether one cell or many cells) is morally equivalent to stabbing a newborn infant to death in her crib. The devout focus not on the intimate and extreme burden that unwanted pregnancy places on a woman but instead on the "interest" that raw materials inside a woman's womb have in developing into an actual baby. The devout refer to the raw materials as "unborn" children, but their words obfuscate rather than illuminate, as I explained here. It is true that the Supreme Court has never announced the right of an individual to kill another individual, and that truth extends to Roe v. Wade, which allows women not to create individuals rather than allowing them to kill individuals.

But how, the reader might wonder, does a law barring contraception or a law barring gay relationships conflate the failure to create a person with the killing of a person? Good question. Let us begin with contraception.

Among many Orthodox Jews, a woman who menstruates must not touch her husband or any other man until her period is over, followed by one week of clean underpants, followed by a dip in the ritual purity pool, the mikvah. Never mind how I know this. If you ask those who observe this commandment, known as "Taharat Hamishpachah" or the purity of the family, some will say that it is because Jewish law regards any death as an impurity. A dead body is impure, menstruation is impure, and a nocturnal emission (ejaculation while sleeping) is impure as well. Okay, you might be thinking, I get how a dead body is impure, but what do menstruation and nocturnal emissions have to do with death?

Menstruation is connected to death, some scholars explain, because when a woman menstruates, the egg that her ovary released that month will not be fertilized. Her menstrual period is thus the death of her egg and of the potential that her egg presented for creating a human being. Menstruating and the fluid that leaves the body thus represent a kind of death. So that this idea seems less crazy, consider how women trying to become pregnant sometimes feel when they get their periods. They often experience a sense of loss because they were hoping that the egg released that month would be fertilized and begin the process of developing into a baby. Women who do not want to be pregnant obviously feel no sense of loss when they menstruate; indeed they might even feel relieved if their period was late and prompted a pregnancy scare.

Though most of us do not think of menstruation as a death, the Jewish purity law does, in a way, and it does the same for nocturnal emissions. In both cases, there was an opportunity to create a baby, and the opportunity did not come to fruition. And that failure to create signifies a death, though menstruating and ejaculating while sleeping are in no way culpable because the individual in question does not choose either of these events.

People do, however, choose to use contraception. Using contraception means intentionally acting in a way that could lead to the creation of a person but preventing that creation from coming to pass. For this reason, such activities as masturbation and oral and anal sex are sinful in some religions. The song "every sperm is sacred" from Monty Python's The Meaning of Life reflects this real idea within Catholicism that wasting sperm is a terrible sin. Why is it a terrible sin? Because failing to create a person under circumstances in which such creation could take place is comparable to killing a person. Ejaculating into a condom is likewise so sinful that Pope Benedict was not always comfortable recommending to people in the midst of an AIDS epidemic that they use condoms. The prohibition on killing potential people trumped the lives of existing people. Gay sex similarly wastes the raw material that could have been developed into a person, so gay sex similarly thwarts reproductive potential.

We accordingly see that the decisions in Griswold, Eisenstadt v. Baird (contraception for unmarried couples), Lawrence, and Obergefell are very much connected to the decision in Roe. Roe rejected the idea that the raw materials for creating a baby are themselves already a baby. Planned Parenthood v. Casey said that it is up to the woman carrying the raw materials to decide whether she wants to treat those raw materials as if they were already a baby (a sensible resolution since she is the one who turns them into a baby if she wishes to do so). Dobbs will say that women may constitutionally be forced to create babies from raw materials inside their bodies with all attendant burdens, harms, risks and acute pain involved. The reason--as argued by the State of Mississippi, a state that, incidentally has the highest infant mortality rate in the nation--i.e., the death of real, existing babies--is that raw materials are entitled to the woman's body if a state decides that they are, and the woman possesses no such entitlement against the raw materials intruder.

If the Court says what it appears poised to say, that the intentional failure to create a baby out of the raw materials in one's body may be treated as a violent crime, then it may be only a matter of time before the intentional failure to conceive during intercourse (through the use of contraception) and the failure to conceive through ejaculation (through gay sex) may be treated as crimes as well. No longer would we adhere to the harm principle by which real libertarians--those uninterested in theocracy--decide when it is legitimate to restrain individual freedom. We would instead be operating under a religious principle in which every sperm is sacred, every sperm is great, when a sperm is wasted, God gets quite irate.

Justice Scalia expressed outrage in his dissent from Lawrence (right to same sex relations), saying that 

[s]tate laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers [v. Hardwick]'s validation of laws based on moral choices. Every single one of these laws is called into question by today's decision.

I am not sure what laws against masturbation Justice Scalia had in mind, but I would suggest that in the wake of Dobbs, we could experience Justice Scalia's parade of horribles in reverse.