Kamala Harris Offers Freedom...From Reality?
The Democrats' Stance On "Reproductive Rights" Is Losing Ground To The Law
To hear the Democrats tell it, Kamala Harris is running a campaign of libertarian social transformation as the tireless champion of “Freedom”.
The fresh frame was on full display this week at the Democratic National Convention in Chicago, where attendees wrote their own definitions of freedom on handmade posters and Beyoncé’s anthem “Freedom” boomed through the loudspeakers. The convention dedicated a day’s theme to “fighting for our freedoms,” with special guest Oprah Winfrey suggesting those working to preserve reproductive rights are “the new freedom fighters.”
Presumably, all right-thinking people will now fall in line behind Queen Kamala and follow her as she leads America into a new era of freedom for all, and especially for women’s freedoms of “reproductive rights.”
There is, however, one small problem with “reproductive rights”: What the Democrats advocate has been losing ground to the law for years. What they fatuously describe as “reproductive rights” is in state after state dancing ever closer to another description: “homicide”.
First, let’s be clear in our terms: what the Democrats call “reproductive rights” is more succinctly and accurately termed “abortion”. That language is important if we are to have a realistic and consistent framing of the discussion. Calling abortion “reproductive rights” obscures the potentials for other rights—specifically, the rights of the unborn child—which, if given consideration, destroy all possibility of a defense for the procedure.
While abortion advocates prefer to focus on questions of a woman’s bodily autonomy, they rather artlessly overlook the superseding question of personhood, and the personhood of the unborn child specifically.
If the unborn child is a person before the law, abortion becomes by definition an homicide, and can enjoy no especial protection within the law. If the unborn child is not a person before the law, bodily autonomy questions rise to the fore, and it then becomes the challenge of the State to define its compelling interests (if any) in regulating abortion.
In every abortion debate, the fundamental challenge, regardless of how Democrats or anyone else wishes the question could be framed, is always going to be the collision of the rights of the unborn child against the rights of the woman and mother-to-be.
To be clear, it is a collision. Apprehended on its own, the argument for a woman’s bodily autonomy is persuasive and compelling, and in truth predates Justice Blackmun’s illiberal illogic in Roe v Wade.
However, as I have pointed out previously, even Blackmun conceded that all such questions were superseded by the personhood of the unborn child. Once personhood for the unborn child is established, all defenses for abortion collapse immediately.
My stance in this area is clear: My conclusion is that the standards of the law have already conceded all of the elements necessary to affirm the existence of legal personhood for the unborn child. Through the expanding use of DNA evidence in the courts as a means of absolute identification, it is clear the law regards a DNA profile as proof of personhood. It is equally clear from basic biology that DNA profile comes into existence in the moment of conception—and thus from the moment of conception legal personhood should be acknowledge. While the courts have yet to make such a ruling, built on such reasoning, the evolution of the law is moving I believe in a direction where such a ruling by the courts in this country is inevitable.
The “freedom” of “reproductive rights” Kamala Harris and the Democrats are championing is nothing but a quixotic and deluded freedom from reality.
The “freedom” Kamala Harris has particularly espoused is the restoration of abortion laws prior to the 2022 Supreme Court ruling in Dobbs v Jackson Women’s Health Organization1. Justice Samuel Alito’s ruling in that decision in a single stroke invalidated the two Supreme Court cases which have previously been the controlling logic for all abortion laws in this country for decades.
We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (internal quotation marks omitted).
In particular, the plaintiffs in Dobbs wanted those precedents overturned, so that states may once again have the authority to regulate abortion within their precincts according to the wishes of their citizens.
Kamala Harris’ advocacy is that such regulation impugns a woman’s “freedom” to make her own “reproductive choices.” Her stated goal is to roll back Dobbs and reimpose the Roe standards.
The Harris campaign told POLITICO the stance the vice president took in a September interview with “Face the Nation” hasn’t changed — support for restoring Roe, which protected abortion until the point of fetal viability, around 22 weeks of pregnancy.
“I am being precise. We need to put into law the protections of Roe v. Wade,” Harris said in that interview. “And that is about going back to where we were before the Dobbs decision.”
Ironically, this stance has already landed Harris in some hot water with abortion rights advocates who want the government to refrain from regulating abortion altogether.
“The government has no place in making decisions about a pregnant person’s health and body,” said Jenni Villavicencio, an OB-GYN and co-founder of Raven Lab for Reproductive Liberation. “We’re going to be as forceful as we can in making sure our movement is unified in saying that an expansive policy is the only thing we will accept.”
Villavicencio, along with dozens of groups including Medical Students for Choice and the National Institute for Reproductive Health, have formed a new coalition called Abortion Justice Now to push candidates and policymakers to embrace sweeping federal protections for the procedure.
Incidentally, the rhetoric coming from such abortion groups confirms a point I have made myself: Roe was never a decision about a woman’s bodily autonomy, but rather about the State’s supreme authority in such matters.
Even Planned Parenthood pans the underlying logic of Roe, arguing that it is disconnected from “justice”.
“Starting at Roe is the wrong framework,” said Alexis McGill Johnson, president and CEO of Planned Parenthood Action Fund and Planned Parenthood Federation of America. “It was never grounded in justice. It was grounded in gestation, state interest and … burden. None of those principles are connected with how pregnancy and privacy decisions work.”
These arguments by abortion rights groups are important to acknowledge, because they underscore a legal reality that Kamala Harris will find difficult to overcome: the legal righs she claims to seek for women were not advanced by Roe and thus would not be established by re-establishing the Roe framework.
These arguments perversely also prove Justice Alito correct in one other important regard: Roe ignored core precepts of jurisprudence and thus reached a flawed conclusion.
Roe, however, was remarkably loose in its treatment of the constitutional text. It held that the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned. See 410 U. S., at 152–153. And that privacy right, Roe observed, had been found to spring from no fewer than five different constitutional provisions—the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. Id., at 152.
When strong arguments against Roe come from within Kamala Harris’ core consituencies, the kindest description that can be made of the legal hurdles she must over come is “challenging”.
Those hurdles have only been magnified by court rulings since, and in particular Alabama’s controversial “IVF” ruling in LePage v Center for Reproductive Medicine, PC2.
Remarkably, this ruling on its surface has nothing to do with abortion whatsoever. One could even argue that it exists at the opposite end of a legal spectrum of court rulings and case law touching on human procreation.
Even more remarkably, the core complication LePage presents for abortion rights advocates lies not in the findings by the court, but by a stipulation made by the parties: that unborn children are persons within the letter of the law (emphasis mine).
Before analyzing the parties' disagreement about the scope of the Wrongful Death of a Minor Act, we begin by explaining some background points of agreement. All parties to these cases, like all members of this Court, agree that an unborn child is a genetically unique human being whose life begins at fertilization and ends at death. The parties further agree that an unborn child usually qualifies as a “human life,” “human being,” or “person,” as those words are used in ordinary conversation and in the text of Alabama's wrongful-death statutes. That is true, as everyone acknowledges, throughout all stages of an unborn child's development, regardless of viability.
Recall my initial contention about the primacy of questions about personhood in assessing a woman’s right to unilaterally abort a pregnancy: personhood is the superseding question, and once the personhood of the unborn child is established, the uncontested rights of the woman to bodily autonomy are superseded.
Perversely, in pledging to restore the rubric of Roe, Kamala Harris is also acknowledging the primacy of personhood, as that was also part of Blackmun’s ruling in Roe v Wade3.
The appellee and certain amici argue that the fetus is a "person" within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well known facts of fetal development. If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on reargument. [Footnote 51] On the other hand, the appellee conceded on reargument [Footnote 52] that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment.
That the parties to LePage stipulated the personhood of frozen embryos from IVF procedures creates an especially thorny challenge for abortion rights advocates, for it is not possible to claim judicial error in the courts ruling. The court did not rule on personhood, but accepted it as fact because the parties to the litigation stipulated it as fact.
Abortion rights advocates can—and almost certainly will—challenge such stipulation of fact, but in doing so they have another hurdle to overcome. Actually, they have several hurdles to overcome—the laws in several states classifying the death of an “unborn child” as varying degrees of homicide.
The homicide characterization is important because, as with the rulings on DNA as a means of identifying a person, the act of homicide4 necessarily involves the killing of a legal person.
Homicide is a manner of death, when one person causes the death of another. Not all homicide is murder, as some deaths caused by another person are manslaughter, and some are lawful; such as when justified by an affirmative defense, like insanity or self-defense.
Thus, if the destruction of a fetus is the death of an unborn child, if any person causes that destruction and therefore death, that destruction and therefore death is necessarily a homicide.
In the same logical vein, by classifying the death of an unborn child as a homicide, the law is necessarily extending personhood to that unborn child.
In state after state, that is exactly what the law has done.
In Illinois, for example, the law establishes the intentional death of an unborn child as first degree murder5. Moreover, that same statute explicitly declares the unborn child to be a person under the law.
For purposes of this Section, (1) "unborn child" shall mean any individual of the human species from the implantation of an embryo until birth,
The statute further apprehends the ramifications of this declaration, as the Illinois legislature felt obliged to carve out a special exception for abortion:
This Section shall not apply to acts which cause the death of an unborn child if those acts were committed during any abortion, as defined in Section 1-10 of the Reproductive Health Act, to which the pregnant individual has consented. This Section shall not apply to acts which were committed pursuant to usual and customary standards of medical practice during diagnostic testing or therapeutic treatment.
While abortion advocates might take comfort in that carve-out, it should be a cold comfort. The very existence of the abortion exception in such legislation merely underscores the proposal within such legislation that an unborn chid is a person within the eyes of the law, to the extent that special language is needed to preserve the woman’s ephemeral “right” to destroy the life of that person via abortion. Even the exception, therefore, establishes the personhood claim which Blackmun conceded in the original Roe ruling was lethal to any and all arguments in favor of abortion.
Nor is Illinois alone. Indiana, Illinois’ next door neighbor, likewise counts the death of a fetus as murder6. Indiana likewise found it necessary to legislate an “abortion exception” to the crime of “feticide”7.
Alaska likewise counts the death of an unborn child as either murder8 or manslaughter9. Alaska also felt it necessary to craft an “abortion exception”10.
Even Minnesota has such statutes defining the death of an unborn child as murder11 (as well as lesser forms of homicide12), and Minnesota likewise admitted the need to make an abortion exception13 to these statutes.
We should pause to note that Minnesota’s Governor and now Democratic Vice Presidential candidate, Tim Walz, was quite vocal in celebrating that exception—to the point of incontinence—when, in the wake of Dobbs, the Minnesota legislature passed abortion legislation establishing an unlimited right to abortion up to the moment of birth.
In all, 38 states have enacted legislation declaring the death of an unborn child at the hands of another person to be some level of homicide. In other words, 38 states have already declared (or acknowledged) the fundamental personhood of the unborn child.
38 states, by enacting particular “abortion exception” statutes to this legislation, have tacitly conceded the notions of legal personhood by which the crime of homicide can be established are an absolute prohibition against abortion but for the exceptions.
38 states have already provided the establishment of personhood which Blackmun stated unequivocally would be a bar to all arguments in favor of abortion.
There is an undeniable visceral appeal to notions of “freedom”. The rhetoric of freedom and liberty are interwoven into America’s political DNA. It is in celebration of that freedom that I make a point to write an essay illuminating what I see in the Declaration of Independence every Fourth of July as my own intellectual celebration of that essential text to all things American.
There is also an undeniable logic to propositions of bodily autonomy. People—not just women—should be soveriegn over their own bodies, and the law should intrude on that sovereignty only very carefully and very reluctantly if at all. We should further acknowledge that defenses of bodily autonomy predate the judicial incontinence of Roe v Wade.
Yet no logic defending bodily autonomy, neither for women nor for people in general, can hope to prevail when another body is involved. Pregnancy, from the moment of conception, introduces that other body into our consideration even as it introduces the fetus into the womb of the mother-to-be. Basic biology, laws of evidence, laws establishing idenitification, and laws defining the crime of homicide throughout the several states all admit that pregnancy introduces that other body into the womb of the mother-to-be. Claims of bodily autonomy necessarily do not extend, and cannot extend, across that conceptual boundary to entail the autonomy and the rights of any other person, including the unborn child.
As much as Kamala Harris and her progressive posse within the Democratic Party may hope to energize certain voting blocs with their emotive appeals over “reproductive rights”, those appeals will every time run into the brick wall of biological and legal reality. Unless and until abortion advocates can craft a winning argument for abortion on the basis of a woman’s right to kill another human being (i.e., her unborn child), the law has already resolved Blackmun’s lingering question from Roe: the unborn child is a person and must be considered a person under the law.
Kamala Harris may find it convenient to use the rhetoric of freedom when championing abortion. Unfortunately for her, she’s already lost to both the spirit and the letter of the law. The only freedom she can champion where abortion is concerned is the freedom from reality.
Dobbs v. Jackson Women's Health Organization, 597 U.S. ___ (2022)
James LePage and Emily LePage, individually and as parents and next friends of two deceased LePage embryos, Embryo A and Embryo B; and William Tripp Fonde and Caroline Fonde,individually and as parents and next friends of two deceased Fonde embryos, Embryo C and Embryo D v. The Center for Reproductive Medicine, P.C., and Mobile Infirmary Association d/b/a Mobile Infirmary Medical Center, SC-2022-0515
Roe v. Wade, 410 U.S. 113 (1973)
Wex Definitions Team. “Homicide.” Wex, 2023, https://www.law.cornell.edu/wex/homicide.
I keep waiting for the moral shift against abortion. If more people see what a late-term abortion looks like they'd be mortified and horrified. I think the fact people don't see it helps shape their perception of abortion being the killing of a 'clump of cells'.I forget where I read it but apparently new technology can show the painful cries of the fetus as it's being aborted. At the very least, we need to stop celebrating abortion as if it's a noble right to choose. It's beyond that at this point. It's a means to an end. The abdication of personal moral responsibility really.
Many thanks for this greatly enlightening, timely piece!