US Supreme Court and Social Values
Posted on June 26, 2022 — 10 Minutes Read
Although devastating, the decision by the Supreme Court of the United States on June 24, 2022 to overturn Roe v. Wade, 410 U. S. 113, and the subsequent Planned Parenthood Southeastern Pennsylvania v. Casey, 505 U. S. 833, that hold the right to abortion is conferred and as such protected by the US Constitution should come at no surprise given a 6-3 conservative majority in the Court. While the reasoning of the overruling, similar to other human artefact, is not immutable to logical fallacy, of the most question is however the role of the Supreme Court, not as a function of the judiciary which is clearly set and concisely developed throughout its history, but as a part or the society at large. What follows will be a discussion of the logical fallacy in the reasoning of the Supreme Court in the overruling, that is known as is–ought or fact–value problem, and also a reflection of the central question of the debate, which is the notion of personhood, and of the role of the Supreme Court in the society.
Three-Part Reasoning of the Opinion
Of the 213 pages of the opinion that details the overruling, the 4-page syllabus i.e. headnote summarises the reasoning in three parts:
There is no ’express reference’ to a right to obtain an abortion, as part of the ’liberty’ in the Fourteen Amendment for warrant of its protection by the Due Process Clause, and that at most an argument can be made for such right being implicit in other constitutional provisions such as the right to privacy that springs from the First, Fourth, Fifth, Ninth, and Fourteenth Amendments;
The right to obtain an abortion is not found to be ‘deeply rooted in the Nation’s history and tradition’, nor is it essential to the Nation’s ‘scheme of ordered liberty’, that would otherwise render support for ‘substantive, as well as procedural’ protection for such right by the Due Process Clause of the Fourteen Amendment; and
The right to obtain an abortion is not considered to be a component of a broader entrenched right, as ‘a right to privacy’ and as the freedom to make ‘intimate and personal choices’ that are ‘central to personal dignity and autonomy’ that is supported by other precedents, for:
Attempts to justify abortion through appeals to a broader right to autonomy and to define one’s ‘concept of existence’ could be imported to license support for illicit drug use and prostitution as fundamental rights; and
Abortion involves destroying a ‘potential life’ or ‘unborn human being’, of which the critical and unique moral question prevents it from securing support, for being a part of a broader entrenched right, from other precedents.
As such, reasoning from the three premises above, the Court determines that the right to obtain an abortion is not conferred by the Constitution, and the authority to regulate or prohibit abortion is returned to the people and their elected representatives in the corresponding State jurisdictions.
Part One: Letter of the Law and Sprit of the Law
As clear and succinct the Supreme Court is in its option and in the syllabus, it is nonetheless not susceptible to logical fallacy. Part one of the reasoning starts with a distinction between the letter of the law and the spirit of the law, and states clearly that the Constitution does not expressly confer the right to abortion by the letter. The question then remains is that whether such a right is protected by the spirit of the law, which is to be propounded in the following parts.
Part Two: Is–Ought Problem and Dire Consequences
In part two of the reasoning, when determining whether the right to abortion is considered to be protected by the spirit of the law, specifically whether it is a part of the notion of ’liberty’ of the Fourteen Amendment, which would warrant its protection by the Due Process Clause, the Supreme Court decides to proceed by ‘historical inquiries’ for they are considered ’essential’ when determining the parts and components of ’liberty’. Such injuries with no surprise find that the right to adoration is not ‘deeply rooted’ in the ‘Nation’s history and tradition’, for until the latter part of the 20th century, no State jurisdiction supported or recognised such right, not to mention that by the time the Fourteenth Amendment was adopted, three-quarters of the States had made abortion a crime at any stage of pregnancy, and that abortion ‘had long been a crime in every single State’. While the finding is true, what is or what has been the case should nevertheless not be referenced for what it ought to be. Identified as early as in A Treatise of Human Nature by the 18th-century Scottish Enlightenment philosopher, David Hume, inferencing from descriptive statement about fact, to normative statement about value, is found to be groundless at best and misleading at worst. If otherwise such inference is of validity, then by the same reasoning, one must also accept that the oppressions, genocides and other tragedies throughout the human history, as facts and as what is, are of value and are what ought to be. It should be apparent that the fact that the right to abortion, for historical and contingent reason, had not been considered as part of the notion of ’liberty’ of the Fourteen Amendment is no justification that it should not be. By the same token, and in consideration with part one of the reasoning, any right not expressly mentioned in the Constitution, and had not been long recognised in the history of the United States, should also not be granted protection by the Constitution. Such line of reasoning would raise question about the constitutional protection of other recently rectified rights, such as the right to same-sex marriage, and expose them to the risk of an overruling as well. If this is not the intention, then by reductio ad absurdum, the tacit presupposition that, what is and has been the case warrants what it ought to be, needs to be refuted, and that a different method of inquiry shall be used for determining the notion of ’liberty’. If however the intention is to lay ground for a complete overhaul of the progress the Court has made thus far, that to a degrees embraces an evolving notion of the letter of the Constitution that advances with the society at large, and for a gradual regress of the Court to a mere keeper of the letter of the Constitution instead of a guardian of the social values of the last resort, then the is–ought or fact–value reasoning for determining the scope and meaning of the letter of the Constitution by historical inquires is fit for purpose, despite disappointing and disheartening.
Part Three: Role of the Supreme Court and the Moral Question of Personhood
Part three of the reasoning maintains that the right to abortion is not to be considered a part and component of a broader entrenched right that, despite not expressly written in the Constitution, shall be warranted of its protection. The reasoning is delivered loosely in two subparts. The first of which submits that a justification for abortion right through appeals to a broader right to autonomy and to define one’s concept of existence, in the word of Justice Alito in delivering the opinion, ‘prove too much’. It is suggested that to a degree of generalisation, the same reasoning could be imported to license support for illicit drug use and prostitution as fundamental rights, that is, by the fact this reasoning is written against abortion right, undesired and unintended in the option of the Court. One with a keen eye will see that this line of reasoning is a clear expression of the social values that the Court considers to be proper, or in this particular case, improper, to be a part of the fundamental rights, and by reasoning for an opinion, with reference to the desired or undesired social value, it would seem that the Court is assuming a role beyond the scope of a mere keeper of the letter of the Constitution, for otherwise reference should strictly be made to the letter, instead of the social consequences thus implied. This seems to be in dissent with the role the Court is assuming in part two of the reasoning when it proceeds with an is–ought inquiry for determining the notion of ’liberty’ in the Fourteen Amendment, that completely disregards the desired social value in favour of those that were historically and contingently upheld. Such discrepancy in the role of the Court, implied in its reasoning, is rare if not surprising, and it raises question as to whether such reasoning is written prior or posterior to the judgement.
The second subpart of the reasoning is in reference to the moral question at the heart of the debate, that is the notion of personhood, or at what point life begins. Rightly identified in Roe and Casey, and maintained also in the overruling by the Court is the unique character of abortion, for in so doing, it destroys a ‘potential life’ or ‘unborn human being’. On ground that the precedent decisions cited by Roe and Casey did not involve such moral question, the Court concludes as such that the warrant from the cited precedents shall not be transmitted to affirm the right to abortion as a part of a broader entrenched right. It should be apparent that the moral worth of forgoing one life for the sake of another needs to be evaluated with reference to the persons involved and the circumstances in which the situation arises. Such evaluation is without doubt beyond the scope of a priori deduction, and is as such not to be conferred nor protected by any fundamental and universal principle such as the Constitution. The question as such for whether abortion right, as the right to destroy a ‘potential life’ or ‘unborn human being’, for whether the liberty or privacy or any other reason deemed appropriate by the pregnant individual, is not whether one has the right to forgo the life of another, for otherwise it is beyond the scope of the Constitution or any other fundamental and universal principle, it is rather at what point the potential life is considered a human being that is warranted of equal status and protection by the Constitution. Most if not all would agree that a born human being is justified the status of a person and the protection any fundamental and universal principle such as the Constitution regardless of age. The question becomes philosophical and problematic when the person is unborn and that the personhood is merely a potential.
Democratic Conversation and Moral Deliberation
Roman Catholic doctrine teaches that life beings at the moment of conception, while other thinkers and philosophers attempt to justify a status of personhood based on reasoning faculty, pain reception and the like. Yet it is, as rightly identified by the Court, a moral question, and by virtue of being a moral question, the answer often lies in a democratic conversation that requires, among other things, a recognition of the bonding and cohesion between each in the society, and of the indebtedness from each to another in a shared common life, that are nonetheless difficult if not impossible in the polarised society of the present day in the United States.
With now the Supreme Court relapsing from its role of the guardian of the social values, that once holds the pieces of the fragmented society together, to a keeper of the letter of the Constitution, that casts the authority back to the people and their elected representatives, in yet a political and social climate that is impossible for a conductive, democratic conversation and moral deliberation, one cannot help but wonder what chaos and mayhem will lie ahead.