This is a guest post from Justin Menno, PhD in theology from the University of Dayton, and instructor at Catholic Central High School in Grand Rapids, MI.

Three weeks ago, on May 28, 2019, the Supreme Court issued an important decision in Box v. Planned Parenthood.  Specifically, the Court issued a decision on two provisions of a 2016 Indiana state law (HEA 1337). The law’s first provision required the dignified disposition of fetal remains, handled either at medical facilities or abortion clinics. And the law’s second provision prohibited abortions based on sex, race, or disability related reasons.

Challengers to the law were initially successful in barring the enforcement of each provision. But just recently, the Supreme Court upheld Indiana’s first provision on the dignified disposition of fetal remains.  For the time being, it’s letting the injunction on the second non-discrimination provision stand.  But in so doing, the Supreme Court made clear that its decision was based on procedural grounds, and not on the second provision’s constitutional merits.  In other words, the Supreme Court is waiting to see how similar state-based prohibitions on sex, race, and disability related abortions are treated in Federal Circuit Courts before evaluating the issue again.

The significance of the Box v. Planned Parenthood decision is significant for a number of reasons.  But for the purposes of moral theology, I’d like to call attention to five.

First, the Supreme Court’s decision, together with the Seventh Circuit’s prior rulings, indicates that jurisprudence on the legal personhood of pre-natal children is shifting ever so subtly from gradualist grounds to substantial identity grounds. 

For decades now, jurisprudence on the legal personhood of pre-natal children has focused, more or less, on scattershot attempts to identify “personhood” at some point post-fertilization.  These attempts have differed in their respective criteria, but almost all have presumed that there is something like a pre-personal stage of human existence.  And likewise for decades now, there have been various challenges to these presumptions on substantial identity grounds. These attempts have all presumed, more or less, that the personhood of pre-natal children and the humanity of pre-natal children are co-extensive and co-inherent.  In other words, there is no daylight between personal existence and human existence.

But in an interesting twist, abortion rights litigators have recently advanced arguments similar to the substantial identity position on personhood.  In arguments contesting Indiana’s provision for the dignified disposition of prenatal remains, abortion rights litigators argued that if and only if one is considered a constitutional person can be one be considered human.  Thus, if a prenatal child is not a constitutional person, the child can’t be considered human.  And if not human, then the child’s remains can’t be considered human remains, and so are not subject to regulations on the disposition of human remains. 

The Federal District Court judge who first placed an injunction on Indiana’s law not only agreed with Planned Parenthood’s argument, but adopted it as her own in her decision.  And later on, the Seventh Circuit, on appeal, adopted this very same line of reasoning in its 2-1 panel decision.  Nonetheless, Judge Daniel Mannion, in dissent, rejected the argument that “Indiana cannot require that fetal remains be disposed with dignity because unborn children are not persons under the Fourteenth Amendment.” In fact, he rejected it as nothing less than “a red herring.”

Two months later, after an en banc rehearing of the case, the Seventh Circuit reinstated its ruling after it deadlocked 4-4 in its decision. But in so doing, Judge Frank Easterbrook, in dissent, issued an even more searing criticism of the majority’s novel jurisprudence. He made clear that the argument “X is not a person” does not imply “X is beyond regulatory authority,” and then pointed to various animal welfare statutes in support.  Easterbrook noted that, in the states under the Seventh Circuit’s jurisdiction, “Dogs may not be beaten for fun. Bullfights are forbidden. Horses may not be slaughtered in Illinois for the dinner table.” In other words, many states “have laws that prescribe how animals’ remains must be handled.” Thus, he acidly remarked that the Seventh Circuit “has held invalid a statute that would be sustained had it concerned the remains of cats or gerbils.”

Given the above arguments, it certainly seems to be the case that abortion rights litigation and jurisprudence is shifting toward conceiving the personhood of pre-natal children and the humanity of prenatal children as coextensive.

Now, I grant that it may be stretch to say that this shift demonstrates a movement toward a substantial identity position on human personhood. Whereas the traditional substantial identity position has conceived personhood in metaphysical terms, the abortion rights jurisprudence mentioned above seems to conceive personhood in legally positivist terms.  And whereas the traditional position has conceived human being in its integral, including biological, fullness, the latter seems to conceive human being only as derivative of its legally positivist take on personhood.  Regardless, it is important to take note of this shift, inasmuch as it indicates that abortion rights litigation and jurisprudence is no longer exclusively relying on arguments for pre-personal states of human existence.

Second, the shift in abortion rights jurisprudence toward considering the humanity of prenatal children and the personhood of prenatal children as coextensive is not just tactical.  Rather, it seems part and parcel of larger abortion-rights strategy to not just dehumanize prenatal children, but un-humanize them.

Last month, former New York City council member Christine Quinn stirred up quite a controversy with her puzzling take on pregnancy.  In a nationally televised debate on recent heartbeat bills in Georgia and Alabama, she stated, “When a woman is pregnant, that is not a human being inside of her.” Her comments were quickly lampooned as “unscientific nonsense.” And even that seems charitable.  But before dismissing Quinn’s remarks as an outlier, it is important to note that a recent NPR-PBS-Marist poll found that 16% of Americans believe that “human life begins at birth.”

That’s right.  Roughly one out of every six Americans believes that if a woman is pregnant, there is no human life inside of her.

On its own, this scientific illiteracy is concerning enough.  But what makes it even more concerning is the fact that it is overlapping with state-based legislative efforts to exclude prenatal children from any and all legal status.  Recent efforts in New York, Vermont, Illinois, and even now in Rhode Island have made clear two key points.  One, they have shown that these legislatures are attempting to disappear pre-natal from inclusion in the law altogether.  And two, they are attempting to enshrine the principle of absolute autonomous choice as the only issue principle at stake in pregnancy-related legislation.

Recently, Illinois and Vermont have each passed explicitly statutory language, declaring that a “fetus does not have independent rights.” And like New York’s recent abortion-related law, Illinois and Vermont have now decriminalized previous state laws dealing with fetal-homicide or fetal-injury.  Furthermore, all three states have even removed tort-related language dealing with cases of fetal-homicide or fetal-injury from their respective civil codes.  Thus, mothers and families cannot sue for damages to pre-natal children, for the law no longer recognizes these children as subjects of civil action.  In brief, the legal disappearance of pre-natal children in these states is expansive and near total.  It goes all the way down.

Like the previously mentioned states, Rhode Island is currently engaged in a similar effort to exclude prenatal children from any and all legal concern.  But in a novel twist, it is trying to preserve the state’s own fetal-homicide and fetal-injury laws even as it tries to remove all references to the prenatal victims who are the principal subjects of these laws.  Specifically, the legislature is attempting to scrap fetal-homicide laws, and then replace them with a new category of assault.  The actions under criminal regulation remain the same, but the subject of these crimes has now changed.  Instead of spelling out penalties for killing fetuses, the proposed change no longer makes any reference to prenatal children.  Rather, the proposed change recasts these penalties as related to the “termination of pregnancy,” and thus deliberately obscures the prenatal child who was harmed.  But even more significantly, the underlying logic of the proposed change is even more distressing than the bait-and-switch change to the statutory text.  The Rhode Island legislature is not just saying that prenatal children are not subjects of legal worth and legal concern. Rather, it is saying that these children are not even human, for homicide laws only apply to, well, humans.

In sum, the stated belief that human life doesn’t begin until birth among a significant swath of Americans combined with legislative efforts to exclude prenatal children from legal concern is turbo-charging not just attempts to un-humanize these children, but to disappear them from discussions of moral worth and concern.

Going forward then, the moral and legal debate about the status of prenatal children is no longer just about whether they count as persons, but about whether they count as humans.

Third, the Supreme Court’s decision in Box v. Planned Parenthood represents an important check on recent legislative efforts to un-humanize prenatal children in law and culture.  In its decision upholding Indiana’s dignified disposition provision, the Supreme Court explicitly affirmed that Indiana’s stated interest in the “humane and dignified disposal of human remains,” and its inclusion of fetal remains in the category of human remains, was indeed “legitimate.” It noted that, in its abortion-related decision in Akron (1983), it had already affirmed that Ohio has “legitimate interest in the proper disposal of human remains.” Thus, it maintained that the “Seventh Circuit clearly erred in failing to recognize that interest as a permissible basis for Indiana’s disposition law.”

In upholding Indiana’s provision on the dignified disposition of prenatal remains, the Supreme Court affirmed two key points.  One, though it sidestepped questions of legal personhood, it made clear that prenatal children are indeed human, and so, for the purposes of law, are properly and legitimately included in regulations dealing with the category of human being.  Thus, it checked current attempts to un-humanize prenatal children in constitutional and state-based statutory law.  And two, inasmuch as it acknowledged prenatal remains as a proper subject of law and regulation, it further supported its explicit recognition of “prenatal life” (Roe) and the “unborn child” (Roe) as a proper subject of law in its abortion-related jurisprudence.  Thus, it similarly checked current attempts to disappear prenatal children in constitutional and state-based statutory law.

Fourth, and in some ways most significantly, the Supreme Court’s decision in Box v. Planned Parenthood gestured toward the importance of theories of interpersonal encounter in its abortion-related jurisprudence.  In fact, I’d argue that it took a very significant step toward recognizing that the true gravamen of its abortion-related jurisprudence rests principally on theories of interpersonal encounter, and not on theories of personhood.  In others words, in U.S. constitutional law, figuring out who counts as a person, and what counts as “liberty,” requires figuring out first and foremost what counts as an authentic interpersonal encounter.  I’ll try to explain.

Just as some of the most interesting arguments in academic articles play out in the footnotes, the same remains true of Supreme Court decisions, especially in attached concurrences and dissents.  And this was certainly the case in Justice Thomas’ concurrence and Justice Ginsburg’s dissent in Box v. Planned Parenthood.

In her dissent, Ginsburg argued that the Supreme Court should not have upheld Indiana’s provision on the dignified disposition of fetal remains.  And in fact, she called it nothing less than a “waste of the Court’s resources” to have done so.  Thomas shot back in a footnote that Ginsburg’s argument made “little sense.” And he dismissed Ginsburg’s argument against using the standard of rational-basis review as lacking little if any “evidentiary support.” Not to be outdone, Ginsburg then criticized Thomas’s rejoinder in a footnote as displaying “more heat than light.”

But it was what Ginsburg wrote next in the same footnote that raised quite a few eyebrows.  There she asserted that “a woman who exercises her constitutionally protected right to terminate a pregnancy is not a “mother.”’

Unsurprisingly, critics quickly pounced on Ginsburg’s quizzical assertion.  Adam White considered Ginsburg’s take a betrayal of “commonsense,” noting that “many pregnant women would disagree with her assertion that they aren’t mothers.” Moreover, in none too subtle jab, especially in light of upcoming redistricting decisions, he derided it as an “intellectual gerrymander,” noting that Ginsburg’s pronouncement conveniently sidestepped the “profound philosophical and legal questions” it raised.

Robert George likewise criticized Ginsburg’s “question-begging” assertion about motherhood.  In brief, he considered it not just logically incoherent, but metaphysically nonsensical.  George noted that, if “a woman seeking an abortion is (and who is therefore by definition pregnant) is not a mother, then a pregnant woman who is happy to be pregnant and is not seeking an abortion is not a mother either.  She may think she is, and say she is, but she can’t be.” At least, that is, “if Justice Ginsburg is right.”

I agree that Ginsburg’s assertion about pregnancy and motherhood does not make biological, logical, scientific, or metaphysical sense. But I’d like to suggest that Ginsburg’s assertion is not really about biology, logic, science, or metaphysics. Rather, it has more to do with a specific and problematic theory of what does and does not constitute an authentic interpersonal encounter.  And it is a theory most definitely at work in Ginsburg’s application of her “equal citizenship” theory to abortion jurisprudence.

To explain, I’d like to turn to James Mumford’s evaluation of two predominant theories of authentic interpersonal encounter in his book Ethics at the Beginning of Life.  The first predominant theory he critiques is what he calls the “empathetic” model, and he traces it to Martin Buber’s famous I-Thou and I-It schema.  The second predominant theory he critiques is what he calls the “contractarian” model, and he traces it to seventeenth-century political philosophers like Locke.  Mumford notes that the “empathetic” model regards authentic interpersonal encounters as those that necessarily involve “mutual openness, full reciprocity, a high level of intersubjectivity, and heightened emotion.” (103) He then notes that the “contractarian” model similarly regards authentic interpersonal encounters as those that necessarily involve arrangement, mutual dependency, and equal agency.  Though different in origin, each considers human encounters “authentic” if and only if they are symmetrical, voluntary, foreseen, and highly agential.  Thus, those human encounters that fall short of these characteristics are judged to be not just inauthentic, but sub-personal and even sub-human.  In Buber’s schema, they belong to the I-It polarity.

Given the predominance of these two theories of human encounter in ethical reflection and policymaking on beginning of life issues, Mumford argues that both been phenomenological failures in two major ways.  One, he claims that they have prevented us from accurately seeing the object of human emergence, the prenatal child or “newone,” as he or she really is.  And two, he claims that they have foisted an artificial and descriptively inadequate theory of authentic human encounter on the maternal encounter with her “newone.” In contrast to the “empathetic” and “contractarian” models, Mumford observes that maternal testimony bears witness to human beings having been thrown into a radically particular, contingent, and asymmetrical relationship, wherein one party is wholly dependent upon another.

Mumford makes clear that the asymmetry of such an encounter between a mother and her “newone” is not some aberration from authentic interpersonal encounters.  Rather, it is the most basic and natural of all authentic interpersonal encounters.  In this light, Mumford argues that the basic and natural encounter between a mother and her “newone” puts “empathetic” and “contractarian” moders of encounter in their proper place.  And this is the case “because in the real world contingent encounters are primary and all other (including arranged) ones derivative.” (102)

Circling back to Ginsburg’s assertion that “a woman who exercises her constitutionally protected right to terminate a pregnancy is not a “mother,”’ we can now better understand Ginsburg’s statement and evaluate its descriptive and theoretical inadequacy.  Ginsburg has long sought to advance her somewhat novel “equal citizenship” theory in abortion-related jurisprudence.  She has maintained that, in order for a woman to enjoy “equal citizenship stature,” the autonomy to determine her life’s course must be regarded in law as near absolute, especially in pregnancy-related decisions.

It is important to note that Ginsburg conceives the encounter between a mother and her “newone” not as a fundamentally familial encounter, but as a political encounter.  In other words, the implications of pregnancy-related encounters relate first and foremost to citizenship, and not kinship.

I noted above that Ginsburg’s “equal citizenship” theory is ‘somewhat novel.’ And I say only ‘somewhat novel’ because it is, in many ways, the logical outworking of seventeenth century political philosophies of human encounter.  As Mumford notes, these philosophies reconceived virtually all forms of human encounter, including familial and political, in the image of commercial exchange.  In turn, the political subject not only was reconceived, but charged with possessing all the attributes necessary for trading like deliberation and a sense of ownership in order to enter into and operate in civil society.  Thus, citizenship came to be reconceived as entering into symmetrical and voluntary encounters with presumably similar and highly-capacitated agents.

Given this remote and proximate background, we can now better understand the sources of Ginsburg’s controversial assertion.  Inasmuch as authentic interpersonal encounter is presumed to involve symmetry, mutual arrangement, and high degrees of reciprocity, it is easy how the maternal encounter with her prenatal child can be dismissed as inauthentic and even sub-personal.  And inasmuch as voluntary encounters like those in politics are regarded as primary in law and ethics, it is likewise easy to see how natural and relational encounters like the maternal encounter above can be consigned to secondary importance.  With these presuppositions in place, Ginsburg can thus reduce the mother with an untimely pregnancy to a mere autonomous “woman.” And furthermore Ginsburg can similarly reduce the prenatal child in such an encounter to an impersonal and legally unworthy object.

Again, there is no doubt that Ginsburg’s assertion derives from a particular tradition of political philosophy and even more particular theory of authentic interpersonal encounter.  But there seems to be likewise no doubt that the presuppositions guiding her assertion remain woefully deficient, especially in interpreting the pre-moral content of the encounter between a mother and her prenatal child.  And inasmuch as it remains deficient pre-morally, it remains even more deficient in terms of its moral and jurisprudential implications.  What Aristotle said about the compounding of mistakes seems only right: “a small error in the beginning causes maximal confusion eventually.”

Now, I grant that it is one thing to diagnose a problem, and another to remedy it.  But I think there is clear and convincing way forward in law and jurisprudence.  Specifically, from within already existing legal traditions, I think that there is a way that is able to avoid foisting an artificial schema on the encounter between a mother and her prenatal child.  And it is to this way that I turn in my final point.

Fifth, the recent decision in Box v. Planned Parenthood raises important questions about the distinction between authority and competency.  And specifically, given the “contractarian” anthropological presuppositions of constitutional law, it raises important questions about whether the Supreme Court is competent to address asymmetrical interpersonal encounters whatsoever.  Over the past decade, Helen Alvare has argued that family law, given its presumption to preserve the natural bond between parents and children, is the most competent body of law to address abortion-related legal issues.  I wholeheartedly agree.  But before explaining why, I want to say a few words broadly about the difference between authority and competency.

In brief, authority pertains to issues of jurisdiction.  That is, it pertains to a particular range over which it is permitted to take up claims and settle disputes.  The Supreme Court certainly has the authority, constitutionally speaking, to adjudicate any and all matters of law.  Article III, Section I of the Constitution says as much.  But it is open question whether it is competent to adjudicate any and all matters of law.

In contrast to authority, competency pertains to issues of descriptive, evaluative, and functional adequacy.  That is, it pertains to a particular depth in which it exercises special insight to assess claims and the finesse to resolve them.  Whereas authority allows a particular person or group to address a particular area, competency allows such a person or group to address it well.

Applied to abortion-related law, I don’t dispute that the Supreme Court has the authority to scrutinize this area of law.  But in agreement with Alvare, I do dispute that it has competency to do so.  In fact, I strongly dispute it.  Given the “contractarian” anthropological presuppositions of constitutional law, and the “contractarian” and “empathetic” models of interpersonal encounters controlling the Supreme Court’s jurisprudence on abortion, I do not think the Supreme Court can either adequately address or evaluate asymmetrical encounters like those between a mother and her prenatal child.  Family law can.  But constitutional law cannot.

When it comes to addressing asymmetrical encounters, constitutional law can be considered “middle-sighted.” That is, it can “see,” and thus evaluate, human encounters in our mature adult life, characterized as they are by symmetry, mutual reciprocity, and high degrees of agency and emotional warmth.  But left out its vision are those asymmetrical encounters that are near at the beginning and far at the end of life.

For all intents and purposes, the Supreme Court is held captive to symmetrical picture of interpersonal encounter.  Thus, to recognize the limits of its vision is to recognize the limits of its judgments.  And to recognize the limits its judgment is to defer to that body of law that is competent to judge asymmetrical encounters.  Thus, joining Helen Alvare’s call, it is high time to return abortion-related law to family law, and Box v. Planned Parenthood provides an important pathway for doing so.