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.