A Response to Steve McIntosh’s “A Proposed National Agreement on Abortion”

On July 10 Steve McIntosh published a position paper on the Institute for Cultural Evolution website titled “A Proposed National Agreement on Abortion.”  I’m a fan of the Institute and agree with most of Steve’s ideas.  Not this time.  SM’s proposal for a national compromise on abortion is a noble effort toward resolving a supremely divisive issue that cannot presently be resolved politically, as he himself admits.  However, his approach is seriously flawed in several ways.  Despite this, his claim that a “trimester model” can be the basis for compromise is worth looking at for sharpening our understanding of a number of concepts involved in the abortion rights debate.  Here is what SM's trimester model looks like:

Despite the odds against the project, as an integralist, I support SM’s aim of finding a solution that would be acceptable to all the major stakeholder groups in the battle over abortion rights: traditionalists, modernists, and progressives. However, I have problems with the initial premises of his proposal and with his belief that it actually produces wins that each faction could accept.  For those who don’t like lengthy posts, I have divided my response into four parts

1.  Was the Dobbs ruling legitimate?

Early in the essay, SM writes:

“While I would prefer the preservation of the rights interpreted by Roe, I agree with the court’s majority opinion that the original Roe decision itself was a “raw imposition of judicial power.”

SM’s agreement with Justice Alito’s characterization of Roe as a “raw imposition of judicial power” implies that he accepts the legitimacy of this Court and its ruling in Dobbs v. Jackson’s Women’s Health Organization.  Many, including myself, do not for several reasons.

· First, Merrick Garland should be on the Court.  That he is not is owing to the self-appointment of Mitch McConnell to the position of King of the Senate by which usurped authority he denied even a hearing to Barack Obama’s nominee, Garland, in 2016.  

· The three justices appointed by the Trump administration were confirmed by a corrupt process in the Senate.  Over the next four years, the McConnell-controlled Senate confirmed three of President Trump’s nominees, all of whom had been selected for their commitment to overturning Roe v. Wade.  That’s not how the system is supposed to work. 

· All three of those justices lied in their confirmation hearings when questioned about where they stood on Roe v. Wade.

· The reasoning behind Dobbs, written by Justice Alito, has been shredded by numerous legal authorities.  See, for example, this interview with health law expert Joanne Rosen.

· Justice Sonia Sotomayor, writing for the three liberal justices, correctly chastised the conservative majority for undermining the legitimacy of the Court with their decision in Dobbs to overturn Roe v. Wade, relegating women to the status of second-class citizens and opening the door to elimination of other basic rights.  Let us also note that this is the first time in Court history that a ruling eliminates a right instead of protecting one.  Talk about “raw imposition of judicial power.”

2.  Some logical problems

“As the Dobbs ruling explicitly acknowledges, by placing the issue of abortion beyond the democratic process, Roe has been a contributing cause of America’s bitter culture war for nearly 50 years.”

That’s true, but it’s rather like saying that Brown v. Board of Education has been a contributing cause of the white backlash against it.  The other contributing cause of America’s “bitter culture war,” of course, is the 50 year campaign by the Christian right to overturn Roe v. Wade.

“Any proposed compromise, of course, must answer these questions: Why would the   pro--life side agree to a compromise when they have just won a major legal victory? Because 61% of Americans believe in the right to an abortion.” 

This is odd reasoning.  If the pro-life side had any regard for public opinion on this issue, they would not have worked tirelessly for decades to thwart the majority by eliminating Roe.  Moreover, it is clear from the right wing’s activities since Dobbs (activating trigger laws, seeking restrictions on women’s travel rights, pushing for a federal ban on abortion, etc.), that they are not interested in a compromise of any kind. Most of the anti-choice states won’t even allow exceptions for rape or incest.  To attribute democratic principles to the anti-abortion crowd is wishful thinking.  So why would the “pro-life” side agree to a compromise after winning a major victory?  They won’t.

“Conversely, why would the pro-choice side be willing to compromise on this cornerstone of women’s rights?” 

Pro-choice advocates will point out that Roe v. Wade was the compromise.  It affirmed a woman’s right to an abortion along with the establishment of a viability criterion that protected fetal rights after six months.  That restriction did not please pro-choice advocates who favored no restrictions at all or critics who disagreed with the timeline.  But, with the passing of time, it came to be accepted by a majority of the population.  Perhaps SM’s argument is that a better compromise is available, one that represents a win-win-win for all concerned.  We will see if that is the case.

3.  Protections of fetal rights

“The ethically evident right of a viable 3rd trimester fetus “to be born” is not protected by federal law. In the 6 states (plus Washington D.C.) which have no gestational limit on abortion, the life of such a sentient fetus can be legally terminated at any time before it is physically separated from its mother at birth….The rights of a viable 3rd trimester fetus are, however, well established in secular ethics.

The reference to an “ethically evident right….” is problematic.  One reason “the right of a viable 3rd trimester fetus to be born is not protected by federal law” might be that it is not “ethically evident.”  Indeed, there is no philosophical consensus on the question, because whether the fetal baby is a person and therefore entitled to rights is hotly debated in the literature.  McIntosh would rather not deal with the ‘personhood’ issue, but it seems impossible to avoid it.  Until the issue is settled, there will be a considerable number of modernists and progressives who will reasonably disagree with SM’s “compromise” solution.  The Wikipedia page he cites in support of his claim that “The rights of a viable 3rd trimester fetus are, however, well established in secular ethics” contains no mention of a  philosophical consensus on the issue.  Quite the opposite, in fact.  There is even debate among secular ethicists about whether even newborn infants have a right to life. 

4.  Protections of States’ Rights

“As mentioned in the introduction to this paper, when it comes to the issue of abortion rights, the tension between majority and minority interests exists at multiple levels. At the highest collective level, this majority-minority tension is seen in the fact that a clear majority of Americans favor the abortion rights provided by Roe. Yet in a minority of states, most voters continue to oppose abortion rights.  At the next level down, within these pro-life states, the numerous women who will now be denied the right to an abortion represent a valid minority interest which the overturning of Roe extinguishes. And at the individual level, based on the “right to be born” argument set out above, a viable fetus has a similar yet countervailing “valid minority interest” with respect to the mother’s ‘majority rights’ to life and health.^”

In this section SM’s proposal to include the (mostly southern) anti-abortion states in the category of minorities whose interests need to be “balanced” with those of women and fetuses is shockingly misguided.  “States rights” was the clarion call of slaveholding states who battled mightily—eventually in a civil war—to have their “right” to own slaves protected in the Constitution.  The 13th and 14th Amendments to the Constitution established that the question of slavery in the US is not a matter for decision by majority vote.  Personal freedom from enslavement for all Americans is a fundamental, not a negotiable right subject to balancing against other interests.  I assume that, if today a majority of a state’s citizens favored reinstatement of slavery as a right, SM would be opposed to any attempt to change the Constitution in the direction of some kind of slavery/freedom balance.

This way of framing the debate is mistaken.  Abortion rights is not a majority/minority issue.  It is about fundamental rights and those accrue to individuals, not to groups.  Women are not a minority interest group, nor are human fetuses.  Each is an individual whose individual rights are at stake.  Roe v. Wade ruled that a woman’s right to an abortion is, like personal freedom from enslavement,  fundamental—yes, subject to certain restrictions, but those are to be established by Congress or SCOTUS, not by the states.  That certain states have a majority that oppose abortions is irrelevant to the issue.  The stakes are not merely theoretical.  Already we have seen what misogynistic state legislatures, thanks to Dobbs, intend to do with their newly awarded “states’ abortion rights.”

Because health and life are universal values, there is no philosophical case for “states’ rights” in the matter of abortion law.  In integral terms, states are subholons to the national holon in all matters specified by the Constitution and federal law.  The subholon must not be allowed to subvert the purpose of the higher level holon by undermining or usurping its legislative authority.  That’s the principle behind Article VI of the US Constitution, the “Supremacy Clause.” The protection of women’s rights to healthcare and bodily autonomy is a national purpose.  Similarly, because life is a universal value, the interest in protecting fetal life is also an item of national purpose, not any individual state’s.  Therefore, states’ rights should have no place in any new national legislation on abortion rights. 

 Conclusion

The Supreme Court’s ruling in Dobbs was a terrible decision, and McIntosh should have said so, a judgment that would have enhanced the appeal of his ideas.   Apart from that, SM’s proposal for a national agreement on abortion rights is on solid ground only with the first term of his trimester model—the “civil right” of a woman to an abortion during the first 15 weeks of pregnancy.  The rest of the model is severely flawed: constitutionally, because it presupposes the legitimacy of the Dobbs ruling; and logically, because it commits the category mistake of linking women’s rights and fetal rights with states’ rights.   Politically it has no future, because neither traditionalists, modernists, nor progressives could ever accept the proposed compromise as a win.  Much as we might wish otherwise, a win-win compromise on the basic issue—does a woman have a right to an abortion—has never been possible.  Integral philosophy tells us that there will always be a significant segment of the population who become stuck at an absolutist stage of moral development.  That’s the religious right-wing.  They will always be with us, and they will never compromise.

Any new national legislation on abortion rights will probably look something like Roe v. Wade.  Better yet would be the Canadian solution: no restrictions whatsoever on a woman’s right to an abortion.  Either would be a win for modernists and progressives, and it would be the responsibility of traditionalists as citizens of a democracy to find a way to accept it.  Given our history, that doesn’t seem very likely, so the culture war over abortion, sadly, will grind on into the indefinite future.