Right to Life and Women's Bodies Redux

The question of the right to life has three parts. Yes, this is legalese but if the right to life movement is asserting a right, it must come to grips with it or their argument falls on emotionalism, the authority of the Church, sexism and Republican partisanship (none of which are valid for the purposes of law or argument).

Part one is the constitutional right to life. The unborn have the same constitutional right to life as anyone else - which is the right to not be executed without due process. Pregnant women are not executed - so that right is already fully in force. The unborn have it under both the 5th and 14th Amendments.

In the law, state governments do not have the power to declare the unborn as persons. Under the 14th Amendment, only Congress can add that interpretation. The black letter law recognizes personhood at birth or the ability to be born (viability). Let us assume that parts two and three can only be accomplished by congressional action. Any assertion of state power as supreme fails in federal court unless Plessy v. Ferguson is made the law of the land in all cases of civil rights and equal protection. This will not and cannot be allowed to happen.

Part two is an equal protection right not to be murdered, that is, if those who are born have a right have murder punished by the state, the unborn must as well. The right to not be murdered is not self-enforcing - without state action, it does not exist. This right assumes that actually having government is a civil right - which our political theory does not recognize. Regardless, it is a question to be considered. 

The right to not be murdered is essentially the right to punish murderers and to have murder investigated. To be in force, the person must be treated as a person. There is a strong civil rights argument for this position paralleling the right to marriage equality and fair treatment at the hands of police. Black Lives Matter is based on this.

What are the justifications for preserving (or outlawing) abortion? Again, we must assume Congress recognizes personhood at conception (not supported by embryology) or gastrulation (which is when the embryo becomes an individual that cannot be split into two persons - that is, if you take a piece off, it will not regrow)?

We could remove the crime of murder from the law. If murder is not a crime, the unborn have no right to assert protection under it. This is an absurd argument, but must be mentioned. The answer, by the way, is no. Without a right not to be murdered, there is not grounds in political theory to have government. Again, government is a contractual right, not a basic human right, although contracts must be fair.

Equal protection for the unborn means equal protection for all of the unborn, not just those who have been aborted. If you punish murder, all murders must be punished according to the same rules. Women who procure abortion must be treated as women who procure the killing of their husbands. Equal protection is a double edged sword. We could end there - as even the pro-life movement concedes that mothers should not be punished. The only way to do that, however, is not to ban abortion.

The right to investigate is the other part of the contractual right to not be murderer. If you investigate abortions, you must investigate all fetal death, including natural miscarriage. If claimed, the assertion ends the investigation. Equal protection rights also apply to providers. This means you cannot selectively investigate Planned Parenthood, no matter how much you want to.

Neither Congress, or voters, will allow the investigation of every miscarriage. Again, we could end the argument here.

Part three is the right of privacy. This is not just the right to not be investigated, but also the right, in general, to have the body politic stay out of women's bodies. The right to liberty is the right to tell the majority it has no power to interfere in the lives of others. It is accomplished by Roe v. Wade and all of the other civil rights decisions which block government action. It IS self-enforcing in that way. Again, we could end here. Most do.

The authority argument in the Catholic Church no longer applies to Catholic politicians. Vatican II included Dignitatis Humanae, the dignity of humans to a right of conscience. The theory that wrong has no rights has been rejected. Civil government need not, indeed cannot, take dictation from Rome. Without specifically acknowledging the doctrine, every Catholic politician from Cuomo, to Biden to me stands on it. 

Asserting this doctrine means that priests cannot deny us communion for supporting legal abortion for pluralistic reasons. Most Catholic politicians do. By the way, appealing to authority is a logical fallacy anyway. It does not hold up in court, just ask the Organization for Marriage, who was humiliated when they asserted doctrine to argue against marriage equality. Again, we can end there. 

Part four is incentives for families. While we cannot demand it of the civil world or of Catholic politicians, it must be part of the Catholic discussion - and Catholic politicians can still go there as a basis for enacting such incentives in civil society. Pope Pius XI sided against capitalism and for social democracy in Casti Connubii 119-122. 

If the free market cannot provide and adequate income, it is up to the government to do so. The free market cannot. Requiring a living wage would doom families with children to the welfare rolls. No one would hire the average parent when an average single person is available. 

Subsistence, which is what we have now with the current Earned Income and Child Tax Credits. Both of which are Republican economic policy, so calling such an approach socialism is an extreme view, even among Republicans. Still, subsistence is not enough.

Vice Presidential contender, Senator Kamala Harris, makes real progress toward adequacy by proposing a $3,000 per year refundable credit. It is still only 25% of what the U.S. Department of Education defines as the real cost of bringing up baby, but it moves in the right direction. If we deliver such a credit through an employer paid value added tax rather than income taxes we can take most families off of the tax rolls and make the credit easy to pay - even providing a subsidy to firms whose credits exceed their tax liabilities.

Conservatives abhor this approach. Their counter is that they do not want to subsidize the sex lives of other people. No truer statement has ever been made, and its damning. The pro-life movement, when all is stripped away, really is about controlling women's bodies. Still, that sound bite needed fleshing out. I just did. Add income adequacy to the sound bite and conservatives have no legs to stand on.

Finally, the social contract also includes giving the government the power to tax. You cannot regulate murder without levying taxes. The question is, what do the taxes fund. They should fund children, not policing sex. Voting "pro-life" is just another form of trumpist bigotry.