The light of principle and decency still shines, though it may not prevail
[The Roe v Wade decision] said that there is no possible way that the framers in the 16 uses of the word “person” in the Constitution could have been thinking about embryos or fetuses. What is not in dispute is that women are people under the Constitution. So it said that women have a constitutional right to continue or end a pregnancy as they see fit until this medical moment called viability. The court used general phrasing to explain what that is. So think of cruel and unusual punishment or other constitutional standards that use words instead of specifics and numbers. They said that viability was a reasonable chance at a meaningful life. And they left it to the medical profession to decide what that was and when that happened.
There’s no problem with the viability standard because it moves with medicine. The significant thing about the viability standard is that it is the only “principled standard,” to use the term of Julie Rikelman who argued the case, and I’ve argued this in my book, because it is the only gestational or developmental standard that accounts for the pregnant person. It is the only one that acknowledges the person in whom that embryo or fetus lives and is dependent on. So what the court did in Roe very wisely is to say essentially the biological goal of pregnancy is to deliver an independent person, a baby, and so at the point of development when at least theoretically that fetus could live separately with medical support from the person in whom it lives, that is when the state can assert an interest in potential life.
Fundamental rights are not something you’re supposed to have to beg for at the polls at every election cycle. So when [Kavanaugh] says the Constitution is neutral on abortion, what he is hiding is that the Constitution is not neutral on the personhood of women. So to claim this false neutrality is to throw all American women under the bus.
The symbolic violence, the badge of inferiority, to say the Constitution is neutral on whether a state can commandeer your body and force you to produce a child against your will. To say the Constitution is neutral on that is to tell all women that the Supreme Court, our Constitution and many states see you first and foremost as a baby machine and do not trust or defer to your intellect and your moral agency to make a good and right decision. That is a badge of inferiority.
This is excerpted from the transcript of an interview with Katie Watson, bioethics professor at Northwestern University Feinberg School of Medicine, lawyer and the author of Scarlet A: The Ethics, Law and Politics of Ordinary Abortion. The interview was conducted by Amy Goodman on Democracy Now on the day after the Supreme Court Justices offered their views on a Mississippi State law that would prohibit women from legally terminating a pregnancy 15 weeks from inception.