God Save the United States
by Sherry F. Colb
I have lately been thinking about the world that our newly constituted Supreme Court will leave to us. These are the people who believe the free exercise of religion means the right to penalize other people for violating your religion (no cake for you Masterpiece Cakeshop v. Colorado Civil Rights Commission, no foster children for you Fulton v. Philadelphia). This view of "free exercise" really confuses the legitimate practice of one's religion with theocracy. The free exercise of religion also now entitles you to expose your neighbors to deadly diseases in violation of public health orders (Tandon v. Newsom). This particular religious freedom sounds like a radical libertarian vision, especially when combined with what a majority of Justices think about the right to bear arms.
I regard this kind of libertarianism as dystopic. The government, I think, has a legitimate role to play in preventing us from discriminating against one another on the basis of sexual orientation (or religion). The government also, I believe, has a significant interest in preventing the spread of a pandemic in settings in which people are singing and talking for hours indoors in a crowded space. And the government also has a strong interest in reducing the number of firearms people conceal in places like the New York City subway, where humans are often stressed out and frustrated because the trains are too crowded and often stop suddenly for minutes at a time when many are already late for wherever they are going.
If the Court is truly libertarian, however, then what is it doing allowing the government inside women's uteruses? Perhaps the Court is just sitting out the debate, as Justice Kavanaugh said in declaring from the bench that the Constitution is neither "pro-life" nor "pro-choice." Yet the Constitution explicitly protects several things that should necessarily include protection for the right against forced pregnancy and birth.
Note, for instance, the Third Amendment. Though we do not hear much about it from the Supreme Court, its text is very clear. It says that in peacetime, the government may not force the people to quarter soldiers in their homes. Note the situation: soldiers need to live somewhere, even in peacetime, and some may not have a place to live. And yet, despite that need, people have the right to the integrity of their homes and cannot be forced to keep soldiers there against their will.
I can already hear those who enjoy the libertarian theocracy of our high court objecting to the analogy. But it is not an analogy. It is an observation that no matter how much soldiers need somewhere to stay, they cannot live in the home of an American who doesn't want them there. Let us deal with some of the differences, though, because I prefer that no one be distracted from this argument with these objections.
Soldiers will not die if particular people refuse to house them during peacetime because someone will house them or the government will purchase housing for them. The raw materials inside the woman's uterus, by contrast, will never become a baby if the woman terminates her pregnancy. Note here what I did not say. I did not say that the abortion kills an unborn child. For more on why I no longer refer to the raw materials for building a baby as an "unborn child," see this post.
Once we recognize that zygotes and embryos are raw materials, the right to refuse to keep them in one's body and grow them into a baby to which the builder must then give birth actually seems more compelling than the right to refuse to allow a soldier to stay in your home during peacetime. In the latter case, a fully developed individual needs a home, and it is only the physical integrity of your house that their presence will violate. In the case of the raw materials for building a baby inside a woman's body, we are not talking about what anyone other than people with a particular religious view (or plain vanilla misogynists who enjoy fellowship with the particular devout view) consider a baby or a person.
In the case of abortion, it is raw materials for building a baby inside a woman's body that "needs" the most intimate spaces inside her to come into existence as more than raw materials. The soldier is entitled to more than are raw materials, and the imposition by the soldier is far less than by the raw materials. Accordingly, if the Third Amendment exists, and it does, then it follows from it a fortiori that the law must not force women to harbor raw materials for building a baby inside their bodies for later compulsory birthing of that baby, both extremely intimate and health-threatening conditions. Remember learning at oral argument in Dobbs v. Jackson Women's Health Organization that in Mississippi a woman is fifteen times more likely to die in childbirth than she is to die from a pre-viability abortion.
Another relevant constitutional provision is located in the Fifth Amendment. It is the takings clause, which regulates the power of eminent domain. The Fifth Amendment says that if the government wishes to take property from you, it must pay you just compensation for that property. A useful example here is an easement. The government might want to enable people to be able to walk across your front yard (because it would otherwise be very burdensome for your neighbors to get where they need to go). You would prefer not to allow people to walk across your property, but the government can override your wishes here if it has a public purpose. Note, however, that it must pay you just compensation for the use of your front yard. If you think about it, receiving money for property or for the use of property makes sense because you can purchase more property with the money you receive.
Imagine, by contrast, that the government was able to give men an easement on a woman's body, allowing them to have sex with her against her will. If the government did that, no one sane would suggest that paying her "just compensation" would be commensurate with the sexual assault authorized by the "easement." If you give a person money to replace their existing property with new property, by contrast, we no longer have the kind of moral outrage that we would with rape plus compensation.
Forcing a woman to remain pregnant and then give birth against her will is far more like forcing her to have sex than it is like imposing an easement on someone's property. Some would respond that the intercourse was consensual. This response is unconvincing for two separate reasons.
First, people do force other people to have intercourse, and some of the latter people become pregnant. The laws in Mississippi and in Texas forcing women to remain pregnant, build a baby in their bodies from raw materials, and give birth, all against their will, contain no rape or incest exceptions.
Second, the response is unconvincing because we do not apply such draconian "no-exit" assumption-of- -the-risk logic to other situations that comparably tax bodily integrity. If you have intercourse and then develop syphilis or HPV or some other sexually transmitted infection or disease, we consider it an atrocity to stop you from treating your illness, an atrocity committed against African American men up through the 1970's in Tuskegee. No one other than a racist or a psychopath would think the men in that study somehow assumed the risk of dying of syphilis without treatment by having consensually had intercourse.
In a non-sex-related context, imagine if we said that people who eat heart-disease-courting foods like beef, chicken, eggs, butter, sour cream, cheese, etc., assume the risk of heart disease that the government can accordingly stop them from treating. Imagine a law that said hospitals must not provide bypass surgery or offer other treatments for heart disease if the person in question knowingly and voluntarily consumed the foods that eventually resulted in the disease. I would be surprised if the standard American diet did not lead to this illness more frequently than a particular act of intercourse leads to a pregnancy. But who cares either way? It would be outrageous to deny treatment to people just because they ate such foods. You do not forfeit your right to exit a threatening situation just because you acted in a way that risked placing you in that situation in the first place. Though our economic system can sometimes be very punishing, this far it does not go.
So we have an odd mix. On the one hand, people are empowered to impose their religious faith on other people who do not share it as a matter of "religious liberty." They are also, as the theocratic five showcased in the oral argument in Carson v. Makin, entitled to receive government money for religious schools that discriminate against gay people as a component of their "free exercise" as well, so long as parents receive money for secular private schools. I predict the Court will soon say that public schools must not fire teachers for inculcating religion at the public schools, followed by a ruling that public schools must offer religious inculcation at school for children whose parents demand it.
People are empowered to spread COVID by congregating at church, no matter what a majority of the population wants. At the same time, women are not empowered to refuse to build a baby from raw materials inside their bodies and then birth the babies that they have been forced to create. Just consider for a moment the fact that those raw materials have entitlements to live inside a woman's body and use her body to change from raw materials into a baby, even as the Constitution protects the integrity of people's houses from unwanted soldiers who are already people. And then, when all of the unwanted babies are born, they will go from having had a right to come into existence to having a right to walk around with a concealed firearm. I am sure that this combination will yield improvements in our society's social welfare function. How could it not? #ArmedandUnwanted