The teaching of Roe v. Wade, from the start, was moral relativism. No morality is true- it’s just your point of view- is the lesson the Supreme Court tried to preach:
One's philosophy, one's experiences, one's exposure to the raw edges of human existence, one's religious training, one's attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one's thinking and conclusions about abortion
It’s statements like those that led Peter Lawler, our predecessor on the Postmodern Conservative blog, to say that we’ve become a nation of “autonomy freaks.” It’s neurotic beyond the demands of a control freak to think you can create your own morality and be completely autonomous from every outside influence and risk (even those from your own body and DNA). But that moral relativism verging on solipsism is precisely what Planned Parenthood v. Casey echoed from Roe, in its famous “mystery” passage:
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.
Those of us who aren’t autonomy freaks know that we don’t define the mystery of the universe- we simply live in it. Science defines most of what we know about the universe, and there is only one true reality. The Dobbs decision finally puts to rest Casey’s ridiculous statement, specifically in critiques by Justices Alito and Thomas. The dissent by Breyer, Kagan, and Sotomayor does not defend the “mystery” passage specifically, but makes a new declaration for moral relativism that is equally ridiculous. Let’s consider these passages.
____________________________________________________________________________
My favorite statement from Alito’s majority opinion in Dobbs poses a line from Lincoln’s anti-libertarian “Address at a Sanitary Fair” against Casey’s “mystery passage”. It touches on the autonomy issue:
Historical inquiries of this nature are essential whenever we are asked to recognize a new component of the “liberty” protected by the Due Process Clause because the term “liberty” alone provides little guidance. “Liberty” is a capacious term. As Lincoln once said: “We all declare for Liberty; but in using the same word we do not all mean the same thing.” In a well-known essay, Isaiah Berlin reported that “[h]istorians of ideas” had cataloged more than 200 different senses in which the term had been used.
In interpreting what is meant by the Fourteenth Amendment’s reference to “liberty,” we must guard against the natural human tendency to confuse what that Amendment protects with our own ardent views about the liberty that Americans should enjoy. That is why the Court has long been “reluctant” to recognize rights that are not mentioned in the Constitution.
In other words, the ambiguity of “liberty” means Judges are not free to create whatever right we want by judicial fiat, such as abortion, and claim it’s in the Constitution. A Judge doing his job instead should study the text and determine as a matter of historical fact whether a right was included in the Constitution.
Alito directly takes aim at Casey’s “mystery” clause in this passage:
Instead of seriously pressing the argument that the abortion right itself has deep roots, supporters of Roe and Casey contend that the abortion right is an integral part of a broader entrenched right. Roe termed this a right to privacy, and Casey described it as the freedom to make “intimate and personal choices” that are “central to personal dignity and autonomy.” Casey elaborated: “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.”
The Court did not claim that this broadly framed right is absolute, and no such claim would be plausible. While individuals are certainly free to think and to say what they wish about “existence,” “meaning,” the “universe,” and “the mystery of human life,” they are not always free to act in accordance with those thoughts. License to act on the basis of such beliefs may correspond to one of the many understandings of “liberty,” but it is certainly not “ordered liberty.” Ordered liberty sets limits and defines the boundary between competing interests. Roe and Casey each struck a particular balance between the interests of a woman who wants an abortion and the interests of what they termed “potential life.”
Ordered liberty and the liberty/license distinction. Alito offers what the Founders themselves would argue against the autonomy freak arguments.
____________________________________________________________________________
Let’s turn to the pro-abortion Dobbs dissenters. Here is their defense of something equivalent to Casey’s “mystery” passage:
Like many constitutional rights, the right to choose situates a woman in relationship to others and to the government. It helps define a sphere of freedom, in which a person has the capacity to make choices free of government control. As Casey recognized, the right ‘orders’ her ‘thinking’ as well as her ‘living.’ Beyond any individual choice about residence, or education, or career, her whole life reflects the control and authority that the right grants.
It’s a religion, in other words- a religion of abortion that helps a woman shape her life and become completely free, autonomous.
The dissent fails to recognize that such autonomous and individualistic thinking is a mirage. Beyond our minds- out there in real life- other people are bearing the costs of our individualistic fantasies. In the case of abortion it comes at the cost of innocent unborn children who are butchered. Regardless of all other facts, abortion in its essential description is the intentional killing of an innocent human life. Justice Clarence Thomas wrote the one statement in this case which candidly recognized those costs:
While Dred Scott “was overruled on the battlefields of the Civil War and by constitutional amendment after Appomattox,” that overruling was “[p]urchased at the price of immeasurable human suffering. Now today, the Court rightly overrules Roe and Casey—two of this Court’s “most notoriously incorrect” substantive due process decisions—after more than 63 million abortions have been performed. The harm caused by this Court’s forays into substantive due process remains immeasurable.
Justice Thomas is the most honest man on the Court. “Live not by lies,” he said last month, echoing Solzhenitsyn. The reality Thomas describes will be hard for Americans to get their heads around- but it will not be the nonsense of their own making.
Excellent analysis.
Just an FYI, when you use the underscores to separate sections it makes listening to the text-to-speech atrocious. “Underscore” repeated for 1 minute.
Thanks, CJ--I read the majority opinion, the first concurrence, halfway through the second I had enough & didn't even get to the dissent--doesn't seem I missed any amazing new arguments on the liberal side!
I agree with you that the issue is ultimately religious, what do liberals suppose women worship?