In the Morgentaler Decision (1988), the Supreme Court of Canada very wisely did an end-run around the metaphysical status of the foetus and chose instead to decriminalize abortion on the grounds that variability in access violated the constitution’s equal protection clause. Ironically, Canada could, in principle at least, re-criminalize abortion by making it equally available throughout the country. Weird, yes, but a court pronouncing on a metaphysical issue would be far more weird.
By contrast, the American SCOTUS dicta on Roe v Wade (1973) was nowhere near as circuitous and clever. American jurisprudence is an admixture of both libertarian and communitarian impulses. And so consistency in argumentation can’t conscionably be expected. The Republican legislature in otherwise-libertarian Texas doesn’t want you to have an abortion, and now the six-to-three conservative Supreme Court in Washington doesn’t want you to either. If Roe v Wade wasn’t upheld yesterday – the day the Texas law came into effect – it’s unlikely it’ll be upheld a few months from now. Texas has become Gilead, and many red state legislatures are chaffing at the bit to follow suit.
Notwithstanding my leftist credentials, I have no opinion on the abortion issue. If a plague rendered all but a half dozen women in the world infertile, there wouldn’t be an issue. Under those conditions, no, Princess, you don’t get to control your own body. So rights are contingent on the material conditions that countenance them.
Fair enough. But what about the ideological conditions that might countenance them? There’s no shortage of babies in America. So why should some bizarre metaphysical superstition be allowed to rule the day?
Because more often than not bizarre metaphysical superstitions have been backed up by guns, and guns are material if anything is. If we couldn’t protect the women of Afghanistan from Neanderthals with guns, what makes us think we can protect the women of Texas?
Too quick. Suppose Texas decided to reintroduce slavery. I’m guessing there’d be a second civil war. But the re-criminalization of abortion doesn’t seem to have the same gravitas. The difference, I suppose, is that women can leave, whereas slaves can’t. If they could they wouldn’t be slaves. So push will come to shove if but only if Texas extends its ban to women leaving the state to procure an abortion. That would begin to smack of the Republic of Gilead, and probably would move SCOTUS to act.
Covid, Afghanistan, Ida, and now this. In the meantime, there’s a federal election here in Canada in a few days. Has anyone even noticed?