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The Supreme Court’s infamous draft abortion opinion would overturn Roe v. Wade and permit state legislatures to regulate abortion as they please. In Minnesota, this would mean that abortion would remain legal, at least in the short term. For women, a quarter of whom have an abortion during their reproductive years, this is good news.
Longer term prospects, however, are worrisome. This isn’t just due to possible changes in state law. Rather, it concerns some of the reasoning in the draft opinion and the implications for future federal action.
Current federal abortion rights are based on Supreme Court cases holding that the Constitution protects personal choices regarding family, contraception, marriage and child rearing. The draft Dobbs decision, however, “sharply distinguishes the abortion right” from those other rights, in that abortion “destroys” an embryo or fetus. Otherwise, the cases on which Roe v. Wade is grounded would presumably be good precedent.
The only way the court could reach this decision is by assuming that a product of conception, at any stage of development, deserves legal protection against destruction, no matter the wishes of the person gestating it. This is new. It is also exceptionally disturbing.
U.S. law fundamentally protects people from unwarranted bodily invasion, with both state and federal Supreme Court precedent on point. Hence, in most cases, they are also protected from being forced to use their bodies to save or sustain the life of another person.
As one court wrote, “For our law to compel defendant to submit to an intrusion of his body [to save the plaintiff’s life] would change every concept and principle upon which our society is founded. To do so would defeat the sanctity of the individual and would impose a rule which would know no limits, and one could not imagine where the line would be drawn.”
As Judith Jarvis Thomson argued over 50 years ago, fetuses are no different in this respect.
If the Supreme Court holds that abortion is unlike other private decisions involving marriage, sex and child rearing because it terminates life, then it is likely only a (probably short) matter of time before either the court or Congress decides to enshrine a product of conception’s right to life into federal law. Once that happens, states, including Minnesota, will no longer have the option of permitting abortion, any more than they can generally permit murder.
The leaked Dobbs draft opinion gets fetal rights backward. Embryos and fetuses are not deserving of any independent legal protection, any more than they are able to survive independently. Infants come into the world dependent on the care and love of others, usually the person who gave birth to them.
Accordingly, any legal rights they might have should be wholly contingent on each pregnant person’s intentions concerning them. If the pregnant person wants their fetus to continue and grow, then legal protections should flow from that intent. If the pregnant person does not want their fetus to continue and eventually come to term, then no one — whether the fetus, the state or anyone else — should have any right with respect to the fetus’s existence, and the pregnancy should be allowed to be aborted.
Every child should be wanted. This goal is within our reach. We generously cover most contraceptive options and, where an unwanted pregnancy nevertheless occurs, have safe and effective means of abortion. All we need is to make these options more, not less, accessible.
Failure to respect an unwillingly pregnant person’s decision not to become a parent is insultingly paternalistic. It also fetishizes the fetus without protecting it and makes the pregnant person, the fetus they are carrying and any other children they already have more likely to experience significant increases in poverty, abuse, inadequate care and attention, and failure to achieve lifetime goals, among other ills.
Robust state and federal social supports can help ameliorate some of these dangers, but the states most likely to force people to carry unwanted pregnancies to term are precisely those with the most meager social supports and strongest political opposition to improving them.
The Dobbs draft would create a world in which fetal rights are elevated above women’s rights. It is not a place we want to go.
Laura Hermer is a professor of law at Mitchell Hamline School of Law.