What should Roe have said?

If Roe v. Wade is a mistake, what is the mistake?

One argument is that Roe simply failed to recognize the fetus's right to life. But if that's the argument, then what it should have done is rule that fetuses are 14th Amendment persons.
Two competing conceptions of the career of a person exist: one views the life of the person as a series of events in the existence of a continuing biological object, and the other sees the life of a person as a series of mental events. (Somewhat paradoxically, it's the "physicalist" model that better supports the pro-life position). Neither of these models is provably true or provably false, so far as I can see.
It is perfectly coherent to place a moral value on something without placing the same level of moral value on it that we place on the life of a human person. That which, through natural processes, becomes a person, has value on that account.


People who are pro-choice, I think, are split between those who really believe that the life of the unborn has no value, and those who think it does have value, but not sufficient value to justify protection by criminal law.
However, the Roe justices couldn't figure the question of fetal personhood out, and I don't have any arguments sufficiently strong on that matter that ought to have persuaded them.


They also said that they did know that a woman had a right to privacy, and on that they had the precedent of the Griswold case. Conservative jurisprudence says Griswold went wrong in affirming a right to privacy, since it doesn't say p-r-i-v-a-c-y in the constitution. I'm skeptical of the anti-privacy argument, so even if I were thoroughly pro-life, I would have a problem with voting for politicians who would nominate justices who were going to overturn Roe via the anti-privacy arguments, since to my mind that would be to use a bad argument to reach a good end. There's nothing inconsistent about a pro-lifer rejecting the anti-privacy argument. It makes things less convenient for his position legally, but the considerations in the privacy debate are logically independent from the considerations in the abortion debate.

I take the deer hunter argument seriously here, and the problem is more acute for me than it would be for atheists, because I think I will eventually have to look into the eyes of Jesus and will then see which conception was right.


But what should Roe have said? Even if you accept the deer hunter argument for the sake of moral contexts, you are asking a court to set aside a right that it believes to clearly exist (a woman's right to privacy in reproductive matters), on the basis of a right (the right of the fetus to life), which is in doubt. The argument then, I suppose, would have to be that the right to life has a "trump card" status amongst our rights, such that we ought to protect it in cases of reasonable doubt even if it means denying a right that we can be sure of. But I don't know if there is anything in the constitution that would justify this kind of a move from a legal standpoint.

There also seems to me to be a severe moral cost in outlawing abortion and enforcing those laws. Government has to get really intrusive in order to prevent abortions, and has to intrude into areas which we are inclined to think of as private. Further, while in my father's day, a working class family could survive on one income, in today's economy this won't work.

There is also the fact that while lawmaking bodies are mostly male, the burden imposed by pregnancy, for obvious reasons, falls on women and not on men. I can't see in good conscience making this burden heavier than it now is without doing whatever we possibly could to ease the burden on women in other ways. Feminist concerns that outlawing abortion will push women in the direction of barefoot and pregnant in the kitchen are legitimate and would have to be addressed.

The other part of it is, I think we as a society have a resposibility to enhance the choice of life, whether or not we use the coercive powers of law to prevent abortion, but especially if we do outlaw abortion. That is one reason why I support health care reform. But I think there are a lot of things we could be doing which could make the choice of life the more appealing choice to more women, which are things that people who think abortion should be safe, legal, and rare, and people who think that abortion should be illegal and not occur at all, should be able to agree on.

We can't rely on the law to be our moral compass. Strict constructionists have to be open to the possibility that a moral outrage might exist, but the Constitution doesn't provide a way of addressing it.

In the area of marriage, for example, it's perfectly legal to commit adultery, leave your spouse and marry the person you were committing adultery with. It's also horribly immoral. But the law shouldn't be involved in preventing it. The law can only do so much, and I would have thought the people who have the most to say about limited government would realize that.