When are rights born?

Laurence Tribe explains what’s wrong with the claim that overturning Roe v Wade would be like the ruling that overturned “a long line of decisions that had blocked minimum wage and maximum hours and other worker-protection laws in the name of employers’ rights of “private property” and the “liberty of contract”.”

Professor [Akhil] Amar treats as laughably naïve the observation by ACLU national legal director and Georgetown law professor David Cole that, although “Parrish took away some rights of business owners … its real effect was to expand rights protections for millions of Americans subject to exploitation by powerful corporations.” Amar’s rebuttal? He says, and I’m serious here, that it’d be equally legitimate to say that “Dobbs’ real effect would be to expand rights protection for millions of innocent, unborn Americans … unborn humans, subject to extermination by society.”

It’s hard to know where to begin in unraveling that alleged parallel. Suffice it to note that the status as rights-bearing persons of embryos and fetuses remains a matter of profound sectarian controversy in America and throughout the world while no such controversy attends the status as rights-bearing persons of the array of workers whose rights, at least under laws designed to limit economic exploitation if not directly under the constitution itself, were indisputably expanded by virtue of the Parrish decision and the overturning of the Lochner line of cases.

Now why might that be? Why is it controversial?

For one thing, it’s because an embryo is an embryo. It’s unfinished. Its rights are in the future. If a woman and a man decide one convivial evening that they want to have a baby, that notional baby doesn’t instantly acquire rights. An embryo is more solid than a decision, but it’s still lacking the full humanity that needs rights.

And for a second thing, unlike all other kinds of persons, an embryo and a fetus are inside a full human being. She is making them, with her body. They can’t have any rights without her. They’re parasitic on her. She gets to reject that arrangement.

That’s what the anti-abortion faction means by “innocent” of course – they’re innocent because they’re not formed yet, they’re not independent yet, they can’t do things in the world yet – they’re hidden away inside someone else’s body. But what we’re supposed to take from that word is that they’re tiny saints, when the reality is that they’re raw material. Of course they’re “innocent” in the sense of not having shot up a school yet, but that doesn’t give them a 9 months lease on a woman’s body if she doesn’t agree.

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