The Supreme Court of the United States of America v. The United States of America
There are two kinds of truth: empirical truth and revealed truth. Empirical truth is the product of a scientific process. Empirical truth is made up of proven, verifiable facts. Plants use chlorophyll to capture solar energy. We know this because it’s been scientifically proven.
Revealed truth is truth we just know. We can’t prove it is true, but we live as though it is true because we believe it to be true. It can be the product of reason, or it can be purely the product of faith, religious or otherwise. A truth revealed, not reasoned, coming on us like an epiphany, revelation. It is not a coincidence that these words are some of the same ones we use to describe religious concepts. You can rationalize why the holy trinity doesn’t make trinitarian Christianity polytheistic, but you can’t reason your way to a conclusion that Jesus was the son of god. That kind of truth can only be known through divine revelation. For believers, it is true. For non-believers, it is not.
Any belief that is ethical in nature relies on revealed truth. We reason it out, but we can’t prove it, and at the heart of every ethical principle is a philosophical belief that is always — always — pure revelation. It is not a matter of reason; it is a matter of faith.
Murder is wrong. You can’t prove it’s wrong, because wrong isn’t a thing of physical substance. Take away human beings, and wrong is not a thing that exists anymore. Right and wrong are products of moral philosophy: we invented and believe in the concept of right and wrong; there are things that are right and things that are wrong; human life has value, and therefore it is wrong to take a human life, and therefore murder should be illegal. That logic contains within it two truths we know only by revelation.
We criminalized murder, and no one’s right to live according to their beliefs was infringed upon because we all agree murder is wrong. We believe in this revealed truth. Even murderers agree murder is wrong; they merely justify exceptions. The existence of society depends upon us sharing a belief in certain revealed truths.
A spermatozoon is a living human cell. So is an egg. When the egg is fertilized by the spermatozoon, it becomes a different living human cell. It then creates new cells, and then you have a bundle of living human cells, and it keeps creating new cells, and then you have a body. These are empirical truths; we can see them happening under a microscope.
I am a collection of living human cells, an empirical truth. My body was once a single living human cell. When my body was a single cell, was that me? I’m the world’s only expert on being me, and I don’t know.
A living human cell is, empirically, human life in the sense that it is human, and it is alive. But is it a human life? When does a living human cell, or a bundle of living human cells, become a living human being? No one knows, but many have their truth.
When our truth is something that cannot be empirically proven, we say we know it, but really, we just believe it. We can prove empirical truths, and so we can know them. We believe revealed truths. No one can prove when human cells become a human being. They might rationalize an answer, or they might rely on faith for an answer, but either way, what they have is not knowledge of an empirical truth. It is a belief in a revealed truth.
Some people believe living human cells are a human being from the moment of conception. If you believe in that revealed truth, you believe abortion is murder. That fertilized egg is a living human being; an abortion is an act that stops that fertilized egg from living; murder is an act that stops a human being from living; ergo abortion is murder from the moment of fertilization. That’s a reasoned conclusion that rests, as all ethical principles do, on what is purely faith. Some people apply the same logic to a blastocyst or a 6-week-old fetus or 15 or 20. That logic also and always rests purely on belief. The belief that none of those points in time is accurate and that a human body does not contain a human being until the moment of birth is equally a belief, not a fact.
There is nothing remotely close to a societal consensus on when human cells become a human being.
When enough of us share a belief, it provides stability to society. When we don’t share a belief but are allowed to act on it, that allowance holds society together. If we can’t disagree on what is true — if we can’t allow one another to believe different revealed truths and to live by them — then every disagreement splits society further and further apart. Making that allowance is hard. It is extremely hard.
It takes a conscious act of forbearance to make that allowance, a deliberate willingness to be okay believing you have the truth yet not try to compel others to live by it in the absence of a close-to-universal societal consensus. In other words, if you want to live in and preserve a society, then on matters on which society does not agree, you have to choose to be okay letting others choose their actions according to their beliefs provided those actions do not create harm. Even when they do create harm, the degree of consensus needed to justify compelling others to act or not act fluctuates inversely with that harm. The more harm, the lesser the consensus needed; the less harm, the more consensus needed. In the absence of harm, almost complete consensus is needed.
The most repressive societies the Earth has ever seen still acknowledged that there is a limit to what others can be compelled to do based purely on some members’ and even the ruler’s belief in a revealed truth without undermining the society. Like a besieged castle, a society sufficiently undermined fractures under its own weight.
We managed to find a way to agree to disagree on abortion for a very long time. We worked out some commonly held revealed truths that we used to put some legal and cultural guardrails around abortion, and we found compromises when we couldn’t find common truths. The central compromise was that the law could restrict abortion but only to a point and that it couldn’t ever criminalize it outright. No legislature or group of voters, no matter how big their majority, could use a belief in when living human cells constitute a living human being to too tightly restrict, much less to completely criminalize, abortion.
The courts recognized over and over that the answer to when life begins has no empirical answer, that there is no societal consensus on a revealed answer, and that therefore individuals must be allowed to choose their actions according to their own conscience. Within parameters, but nonetheless allowed to follow their conscience. That no one else, not even a government, could make the decision for them either way. Because the moral truth for or against abortion is a private matter, the courts protected abortion as a private choice. This was fair. It provided stability. It ensured that while the issue of abortion might strain our society, it would never cause it to fracture.
For the current majority of the Supreme Court to decide there is no and never has been a federal right to abortion and that abortion can therefore now be criminalized anywhere and everywhere in this country is to allow a majority of legislators, even if elected by or representing a minority of citizens, to declare by fiat the truth of when living human cells become a human being. This change in the law did not come about because of a scientific advance that provided an empirical answer or a new societal consensus on an answer grounded in belief. We do not know the answer to this question any more today than at any point in human history, and we have no more consensus on the question than we did 50 years ago. Public opinion on this issue has been remarkably stable for decades. The only thing that changed is a Supreme Court majority had the opportunity and votes to make it permissible for legislatures to impose on everyone else their own belief on when a human life begins, which has no more evidence or validity behind it than any other belief on the matter. Those other beliefs are made no less valid just because a legislature says so, but to act on those beliefs can now be criminalized. It already has been in many states.
Let there be no false equivalency: expansion and contraction of rights are not two sides of the same coin. To argue that expansion of rights is just the opposite of taking away rights and that either way, someone is being compelled to do something against their beliefs is to argue in the case of a confiscation or withholding of rights that the real victim is the person no longer allowed to victimize. In expanding rights, the only people to lose are those who wish to oppress, and they lose nothing but the ability to deprive others of their rights. In taking away a right, the people who lose actually lose a freedom to do or not do something, a freedom to choose. I can hear folks who disagree with that arguing, but the Court recognized the right to same-sex marriage, and that went against many people’s beliefs. Yes, it did, but all they lost was the ability to use the law to withhold a freedom from others. It didn’t require them to do anything; they didn’t have to change their beliefs, and they didn’t have to participate in any way in same-sex marriages. The only harm they have suffered is the frustration of having to tolerate right of others to live according to their own beliefs.
The recognition of a federal right to abortion imposed no real burden on anyone who believes life begins at conception or any other point during prior to birth. It in no way forced them to act contrary to their conscience. It didn’t require them to change their minds about when a human life begins. It didn’t require them to get an abortion, and the law and the courts even determined they couldn’t be compelled to materially support abortion even indirectly through, for instance, taxpayer-funded healthcare programs like Medicaid. All the recognition of a federal right to abortion required of people who believe life begins at some point during pregnancy was to tolerate those who disagree and to tolerate their right to act on that disagreement. Even the latter was tempered. They had to tolerate the freedom to choose but were free to frustrate those trying to act on their choice at every turn under the flimsiest pretext they could argue with a straight face.
By contrast, the criminalization of abortion makes acting on a personal belief an offense against the state. It imposes an action — carrying a pregnancy to term — that creates very real and significant burdens, and those who don’t do so and those who help anyone to not do so can be deprived of their property, livelihood, and physical freedom — together, their freedom to act according to their beliefs on a matter of conscience. Not a matter of science, not a matter of overwhelming societal consensus.
This is the same story for every advance of rights in history: they never require anyone to violate their beliefs, they just don’t allow people to deprive others of something because of those beliefs. Society is messy; democracy is messy. Democratic societies are messy, and preserving them requires us to abide by majority rule — by consensus — while respecting the rights of the minority provided those rights do no harm. The basis of laws in a democratic society is a balancing act of consensus and harm.
And I get it: people who are anti-abortion believe that abortion does violate the rights of others, the rights of a minority. That minority, they say, is the unborn. The violation is extreme — the deprivation of life. That perceived extremity justifies, in their minds, setting aside the principle not just of government by consensus but of majority rule. I understand that rationale. It is sound reasoning. But at its root is a revealed truth, a belief in when human cells become human beings that is neither a fact nor a societal consensus. I understand their willingness to impose their belief in spite of a not having a majority, let alone a consensus. It is admirable even; they are doing it to save what they believe a human lives.
But by failing to recognize what they have is a highly debated belief, not an empirical truth or a societal consensus, and abandoning their responsibility as members of society to forbear from imposing their belief on everyone else, they are doing harm to all of us, abetted by the Supreme Court.
I believe that criminalizing abortion is wrong and harmful. That concerns me greatly, but I also have a higher concern: that we can only have a society when in the absence of fact or consensus, we agree to disagree. We can only have a society when we distinguish between knowledge and belief and do not compel one another to act according to beliefs society hasn’t accepted as true.
If laws requiring people to take actions contrary to their beliefs need not be based on objective truth and genuine consensus, then there is no right to choose that is safe, no choice a legislative body cannot take away, no choice a minority that maneuvers into power can’t steal, no right a majority of voters cannot trample.
If we don’t exercise forbearance and choose to not act on the urge to impose what we believe to be true on others, if we stop abiding by the principle that there is a limit on the authority of some members of society to use the law that governs us all to compel others to adhere to beliefs they don’t share, then there’s nothing holding anyone back from using the law as a vehicle for oppression. When that happens, society no longer serves its single purpose: to keep us safe so that we may thrive. Society becomes the thing that endangers us.
The Supreme Court just threw wide the door to anyone who has no scruple against forcing their beliefs on others and taking away their right to act according to their conscience. The Court’s decision isn’t just an attack on a women’s right to choose. It is an attack on the right to disagree with whomever has power in the moment to declare their belief to be true and the inclination to put the force of law behind that belief. That makes it an attack on the right to choose anything unless those in power say we can. If the right to abortion, federally or in each state, were to be restored tomorrow, the harm to our society would not be undone. It may never be undone, and what becomes of us is no more knowable than when a human comes into being.
Give Samuel Alito credit for one thing: when he said he didn’t care what the decision means for society, he fucking meant it.
Check back soon for future articles the dishonest reasoning of the Dobbs decision and the effort of the Court to deligitimize itself as fast it can.