Ah, Look At All the Potential People
by Sherry F. Colb
In his draft opinion declaring that women have no right to expel the contents of their uteruses, Justice Alito (SA) mentioned the topic of "potential life." He put the phrase in quotes, perhaps to signify his own rejection of the idea that an ensouled zygote could be anything less than a fully realized person, entitled to take what it needs from its living incubator's bloodstream. Potential life comes up at all because both Roe v. Wade and Planned Parenthood v. Casey identified a governmental interest in such potentiality, thus proving--for SA--that at the very least, a zygote has an interest in going from potential to actual personhood. As with so much else in his misbegotten draft, though, SA is egregiously wrong about that.
As moral philosophers have long explained, having an interest means being the sort of creature for whom life could go well or ill. You have interests, and you know that because asking you "how do you feel?" is a coherent question when posed to you. The same question posed to an orange seed or a zygote does not make any sense. Neither an orange seed nor a zygote has preferences, fears, or any of the other feelings and sensations that would give them interests.
Let us consider some other things that, like orange seeds and zygotes, lack any interests, particularly in turning into a more actualized version of themselves. Imagine a 13-year-old girl who has begun menstruating. She plainly has interests. But now think about the egg that has just burst forth from one of her ovaries. That ripe egg is a potential person, just as a blank canvas is a potential painting. Each requires more material and hard work to become actualized, but so does a fertilized egg. If the 13-year-old has sex with someone carrying around his own store of potential people, one of those could penetrate the egg and thus complete the next stage in actualizing its potential. Neither the egg nor the fertilized egg, of course, has interests. Indeed, the very same religious people who praise the Lord for Commander Alito's pathological patriarchy would try to discourage the 13-year-old girl from having sex and would thereby aim to prevent a potential person from taking the next step toward becoming an actual person. Why? Because most people--perhaps the so-called "pro-life" most of all--can agree that teen pregnancy is undesirable (unless the alternative is ending an unwanted teen pregnancy that has already begun). No one worries about the potential life that exits the girl's body as part of her period; no one mourns for the "potential life" that never became an actual life in that case.
Those who have yet to exist neither gain nor lose anything by not turning into a person, so it is fine to encourage a 13-year-old to put off having sex. If potential life were truly precious and entitled to actualization, religious parents would be pressuring their teenage sons and daughters to be having as much fertile sex as possible. And birth control would seem like a genocide, given how many potential people who could have come into being will instead go into a tissue and get flushed down the toilet. Absent contraception, you might have fifty more cousins than you currently do. Shall we grieve for those cousins who never were? Even if we were sad about the fifty cousins that weren't, it is likely because we are imagining all the fun we would have had with those cousins. It is not because we think that the potential cousins experience the violation of their rights to turn into persons. And do we mourn the failure of two people married to other spouses to have an extramarital affair that turns even more potential people into actual people? Hardly.
Potential life has no right to come into existence, though actual life does have an interest protected by a right (at least for another month or so) not to have her body used as a baby maker and birther against her will. The people whom SA and his buddies have conscripted into reproductive servitude are actual people who should have at least as much sovereignty over their vaginas and uteruses as Senator Ted Cruz has over the money he lent to his campaign. The word "abortion" may not appear in the Constitution, but neither do the words "money is speech," "executive privilege," or "sovereign immunity."
SA is right, though, that if we look back to the colonial period, when women barely registered as separate individuals from their fathers and husbands and when marital rape was a man's right (deeply rooted in this nation's tradition of exploiting and subordinating women and girls), the right of a woman to empty the unwanted contents of her uterus received less recognition than it might have from the great wise men who essentially owned their women and the latter's reproductive capacities. In that sense, women were at that time merely potential persons under the thumb of even the most mediocre specimens of the male gender. And now that SA has the power he has sought for so many years, he aims to return to that time and make men great again (MMGA) with girls and women once again potential persons.