A Pro-Choice Bill of Goods (Part 1)

How Roe v. Wade Bamboozled an Entire Nation

As our nation faces the very real possibility of overturning Roe v. Wade, it is a fitting time to reflect on the lies we were sold in the landmark decision.

The sophists behind the 1973 ruling —which bypassed the authority of states by making abortion a constitutional right—framed the debate in terms of the “right to privacy.” The, so called, “right to privacy” had been discovered to emanate from the Constitution’s penumbras eight years earlier in a case relating to birth control (Griswold v. Connecticut, 1965). What was so novel about Roe is that it extended the concept of privacy to the ethical and philosophical domain, insisting that questions about unborn human life and personhood are essentially private matters.

The logic of privacy became more explicit nineteen years later when Pennsylvania’s abortion laws were reviewed by the Court. The famous Planned Parenthood v. Casey (1992) ruling made privacy (in the sense defined by Roe) integral to liberty, while extending liberty to all questions relating to the meaning of existence. As Justice Kennedy famously wrote in the majority opinion: “At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.”

Privacy and Liberty as Moral Antiseptics

These cases introduced novel definitions of privacy and liberty into law, yet because both concepts had no clear limits, they soon evolved into a type of moral antiseptic that could insulate barbaric practices from legal critique. For example, in 2000, the Federal Court of Appeals for the Third Circuit extended the privacy-liberty axis to cover the right of mothers to have their infants killed during delivery. Significantly, Judge Maryanne Trump Barry, sister of former President Trump, struck down a New Jersey law forbidding partial birth abortion on the grounds that the law had been addressing a mirage since, in reality, there was no child to be born, and no “delivery” of a baby since “a woman seeking an abortion is plainly not seeking to give birth.”

Barry’s ruling reiterated what had by then become pro-choice orthodoxy, namely that the difference between delivering a human and not delivering a human depends on the intention of the woman.

In the years following, pro-abortion sloganeering cemented these notions of privacy and liberty into popular consciousness. The argument, in its crudest form, asserts that in order for a woman to be truly “free,” she must be left alone when making decisions about her body. Whether a fetus is a person or “human life” is among the many questions each woman must answer privately.

There are many problems with these theories about privacy and liberty, and one of them is that women were sold a bill of goods. Abortion law did not actually protect a woman’s privacy and self-determination, and indeed it could not because matters relating to family and personhood are inescapably non-private. Roe v. Wade deceived an entire nation, as the liberty-privacy axis merely created space for the state to impose one position on all of us. Significantly, in the years since Roe v. Wade, both federal and state governments made clear that it was only women who decide that their fetuses are not persons who will have the privacy of their decisions respected, while women wishing to fulfil their pregnancy will not receive equal protection.

One-Way Right to Choose

Taking SCOTUS’s various decisions at face value, the privacy provisions give women the right to exercise autonomous control over their own bodies, including over any child carried in the womb. Accordingly, a woman’s decision to abort her baby is no different in principle from her decision to pierce her ears or put nail varnish on her toes. Under such a state of affairs, we would expect certain things to follow.

First, we would expect that if a pregnant woman decides that her unborn child should be treated as “unviable tissue mass,” then the state should not stand in the way even if the woman wishes to torture her unborn child, say by intentionally waiting until after 24 weeks when the fetus has undergone enough neurological development to experience significant distress, or preceding her abortion with sadistic practices designed to inflict pain on the fetus. Yet I know of no abortion advocate who is willing to extend pro-choice logic that far. Such practices would, presumably, be universally opposed. Or again, if a cult of misogynists wished to torture only female fetuses, would pro-choice feminists think that consenting women should be allowed to participate on the basis of “a woman’s right to decide what she does with her own body”? These thought experiments may seem far-fetched and hypothetical, but given the direction our society is going, such scenarios may soon have real-world realization.

Secondly, and more relevant to actual policy, if the question of whether a fetus is a person is truly among the issues that each woman must decide for herself, then we would expect that when a pregnant woman decides that her unborn child should be treated as a person, the state would respect that decision. One consequence of respecting a woman’s decision would be that forced miscarriage, in such a situation, would be treated as murder.

Yet curiously, while abortion advocates have been happy to apply their pro-choice principles to women who consider a fetus to not be a person, they have been unwilling to protect women who do consider the child in the womb to be a person. Numerous instances can be cited in which government, on both the state and federal level, failed to back up woman after woman who chose to consider her unborn child a human being. Moreover, abortion advocates have consistently opposed the passage of fetal homicide laws, even to cover cases where a woman wished to consider her child a person.

In reality, the privacy-liberty rhetoric of Roe v. Wade deceived an entire nation. It has become clear that the “right to choose” works in only one direction, toward the position that a fetus is not a person. In a follow-up post, we will look at some of the tragic instances where pro-abortion logic has left women unprotected. We will see that the privacy rhetoric of Roe only protects women who decide their unborn children are not persons.