Slavery, Abortion and The Masks of the Law

 There are physical masks and there are masks that the law creates--legal fictions--to conceal the person beneath the legal mask.

These masks of the law are used to conceal the humanity of those the law wishes to treat harshly. Slaves were masked as "property" to conceal their humanity. Unborn babies are masked as "potential lives" by Roe v Wade and the abortion liberty. Masks--whether physical or legal--conceal the face (and thus the humanity and individual personhood) of the person behind the mask. 

Here is a video of a CLE I gave last year--at the Nebraska Bar's Annual Meeting--on how the masks of the law can be used to treat persons as nonpersons (as property) when the law wishes to act harshly and unjustly:

https://use.vg/jQuD5e

 In this video, I discuss how the masks of the law enabled slavery in the past and abortion in the present. The idea is not so much to debate legal abortion as to understand how the masks of the law can be used to obscure the reality and human dignity of human persons.

If SCOTUS Overrules Roe v Wade Is It An Attack on Democracy?

 Or, is it just the opposite? 

By overruling Roe, the abortion issue will be returned to Congress and the states; and thus for the first time in almost 50 years, we the people will be able to exercise our right of democratic self-government by voting on the issue.

Here is an article by Prof. Josh Blackman

And here are some excerpts:

Chief Justice Roberts explored this concept in his Obergefell dissent:

Those who founded our country would not recognize the majority's conception of the judicial role. They after all risked their lives and fortunes for the precious right to govern themselves. They would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges.

Justice Scalia made this point more forcefully in his Obergefell dissent:

Today's decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of the Court's claimed power to create "liberties" that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.

Justice Alito's draft opinion explains that there are many conceptions of liberty, quoting Lincoln and Berlin:

Historical inquiries of this nature are essential whenever we are asked to recognize a new component of the "liberty" protected by the Due Process Clause because the term "liberty" alone provides little guidance. "Liberty" is a capacious term. As Lincoln once said: "We all declare for Liberty; but in using the same word we do not all mean the same thing." In a well-known essay, Isaiah Berlin reported that "[h]istorians of ideas" had catalogued more than 200 different senses in which the terms had been used.

It is a mistake to argue that Dobbs extinguishes a right, without also acknowledging that the decision would restore another right. Overruling Roe would extinguish a judicially-created right to abortion, but it would restore a very different right: the right of the people to govern themselves.

 

 I would add that overruling Roe restores multiple rights:

1. As Prof. Blackman says, the right of the people to govern themselves though the democratic process

2. The federalism right to be governed locally in the states rather than centrally by unelected judges

3. The right of the unborn child to be recognized as a person, a living human being, whose life matters

Hadley Arkes "On Overruling Roe"

  Here is an interesting take on how the Court should write an opinion overruling Roe.

Prof. Mike Paulsen on The One and Only Pro-Life Argument

Here

And here is a key excerpt:

 When all is said and done, then, there is one and only one pro-life argument: that abortion kills a separate, living human being. That argument is premised on a simple proposition of biology, not one of theology: the human organism—the entity that is first a zygote, then an embryo, fetus, newborn, toddler, teenager, and adult—is the same human biological organism, merely at different stages of his or her life cycle. (If you had killed me at any of those stages, you would have killed me.)

 Is there really any room for doubt about this, as a factual proposition? If not, shouldn’t that be the key point in any debate over abortion, and the response to any red-herring argument about women’s rights, social policy, sexual ethics, or men’s behavior? If the unborn child is a human being, does that not profoundly limit the scope of morally allowable arguments that might be made to justify killing him or her? Doesn’t it essentially eliminate all such arguments (except self-defense—where killing the fetus is a tragic necessity to preserve the life of the mother)?

 So, what do you know (not feel--know) about the reality of life in the womb? Is the unborn child a living human being? Is he or she alive? Is he or she human?

For me, the answer to those questions is why I am 100% sure that Roe v Wade is wrong because abortion is the violent taking of the life of a living human being.

And here is a short article on the science of life in the womb:

 Abortion, Science Unique from Day One: Pro-Life Is Pro-Science