The “Right” to an Abortion and the “Right to Have Rights”

The recent U.S. Supreme Court ruling in the Mississippi abortion case, Dobbs, v. Jackson Women’s Health Organization did more than simply deny women the right to decide their own health care issues, it denied them full citizenship in the political community of our nation. By stating that the “Constitution does not confer a right to abortion” the decision has rendered women no longer full citizens and has subsequently, denied them the status required to have the “right to have rights.” How is this so?

To begin with, having to decide to have an abortion is a decision that only a woman will have to make, because it is a unique aspect of the fact that only women can become pregnant. No man will ever experience giving birth to another human being. The subsequent moral problem of having to decide whether or not to terminate that pregnancy, no matter what the reason, is the personal choice of a single individual. It will never be a group decision, a decision made by two, three or any other number of people. It is one of the most private and solemn decisions any woman will ever make. As such, it is a fundamental question of personal freedom.

Secondly, by taking away this right to control over one’s very material and moral existence, women have been driven beyond the pale of the law. By depriving them of the right to exist as self-determining individuals, they have, de facto, been deprived of the very status as full-fledged citizens to have “the right to have rights.”

Essentially this decision is codifying and institutionalizing the separation of women from the rest of the polity and denying them a central role in civil society. It is a way of making them stateless, having lost the civil and social rights of a particular community, stripped of validity without legal entitlements and reduced to the status of dependents of what ever political institutions and entities formulate rules, policies, and regulation that will tell them how they can or can’t regulate their own biological and moral being. In short, they have been de-humanized, deprived of their human rights.

The full realization by women of this invalidation is the basis for their justifiable anger and outrage. Like other populations of people who have been deprived of their “right to have rights” – refugees, migrants, sans papiers, boat people – they have now been demoted to no longer having the protection of a social order. Like their migrant international counterparts, they have arrived at a political “nowhere” – displaced from their community because this legal decision has declared them not to be truly human, but simply abstractions within the nation. Demoted in their citizenship and deprived of two of the most fundamental of rights – self-determination and the right to have rights – they can no longer determine their own destiny except by going outside of the law to protest this injustice and bring it to an end.

If the Constitution does not guarantee these rights to over half the population, it is a hollow document which no longer can stand long-term to guide society and its citizens to the rule of law. The Supreme Court has created the very basis for its own invalidation, by this interpretation’s insufficiency to protect the very citizens most impacted by the loss of these rights. It is declaring the Bill of Rights an unnecessary accessory to our lives and will lay the basis for more authoritarian destruction of other laws and eventually, of the entire country. This is a serious and, frankly, unforeseen consequence of Alito, Thomas, Kavanaugh, Gorsuch, and Barrett’s decision. The flawed logic and twisted historical interpretation of past decisions by these five justices need to be fought at every turn by all concerned citizens and members of congress.

Montana Governor Gianforte and the Republican dominated legislature will try to use this opportunity to destroy the right to privacy in the Montana Constitution so that they can take away women’s rights in Montana. We can’t let this happen. Vote for candidates who will oppose this and show up at the legislature to let them know that this will not be tolerated.  Let the struggle begin.