The Death of Abortion Rights in America: A Postmortem

In Dobbs v Jackson Women's Health Organization, the Supreme Court overturned the 50 year precedent, Roe v Wade, allowing for immediate state level bans on abortion.

What philosophical ideas led the Supreme Court to overturn Roe v Wade? Why were defenders of abortion rights unable to succeed in their defense? What political options are available now for those who still want to safeguard abortion rights, and individual freedom, in America?

Join Yaron Brook, Onkar Ghate, and Ben Bayer this week for a special joint episode of New Ideal Live and the Yaron Brook Show. They will examine the reasoning behind both the Dobbs decision and the dissent, and discuss the path forward for individual freedom in America.

Among the topics covered:

● How the majority opinion empties the right to liberty of its content;
● Justice Clarence Thomas’s opposition to substantive due process;
● Why the Ninth Amendment has not been used in Supreme Court rulings on abortion;
● The incrementalism behind Chief Justice John Roberts’s concurrence;
● Why Roe v. Wade was a good decision despite its imperfect reasoning;
● The dissent’s defense of individual liberty against majority will;
● The dissent’s forceful protest against the unprincipled, anti-individualist majority opinion;
● Why the dissent is right that the majority is inconsistent with its own reasoning in claiming that abortion is different from other rights;
● Questions about whether the court typically tailors its reasoning to fit a pre-decided outcome;
● The problem with the viability standard and the idea of balancing rights with a “state interest” in the fetus;
● How the dissent undermines its own case by citing Lochner v. New York as a case that was rightly overturned;
● How the morality of self-sacrifice contributed to the Dobbs ruling and the dissent’s failure to cite the right to the pursuit of happiness;
● Why the widespread acceptance of collectivist premises have contributed to the abridgement of abortion rights;
● Why the concept of “states’ rights” is an expression of collectivism;
● How the fight over abortion rights will continue at the state and federal level.

Mentioned in this podcast are the New Ideal Live episodes “Roe v Wade on the Brink” and “The Supreme Court Abortion Leak vs. the Rule of Law,” Bayer’s book Why the Right to Abortion Is Sacrosanct, and Rand’s lecture “Censorship: Local and Express,” also published in her book Philosophy: Who Needs It.

The podcast was recorded on June 29, 2022.

0:00:00 Introduction
0:01:13 An empty right to liberty
0:05:30 Justice Thomas
0:11:16 Ninth Amendment
0:14:50 Justice Roberts's incrementalism
0:17:18 Roe: A good but flawed decision
0:23:21 Dissent's defense of liberty
0:28:01 Dissent's protest against majority
0:35:21 Majority's inconsistency
0:40:11 Predecided outcome
0:43:20 Viability and balancing
0:50:37 Dissent endorsing Lochner
0:58:25 Self-sacrifice v. happiness
1:04:39 Collectivist premises
1:15:01 "States' rights" = collectivism
1:19:03 Future fights

[topol]

Onkar is always on point but i would like to add that conservatives have crossed over into controlling the economic realm more forcefully over the last four years.

[TreeLuvBurdpu]

I don't think Yoron or anyone at ARI should keep referring to "Conservatives" as "the right". If we take our political coordinates purely from a popular vote of whoever claims to be on the right, we will remain disoriented. The whole purpose of Objectivism in politics is to discover an objective truth about political coordinates, not an ever-changing wave-upon-wave of the "new right", the "alt-right", "today's right", "yesterday's right", "the day before yesterday's right". This is a collectivist, popular vote view of political policies. I don't think it helps promote the point of Objectivism.

[SlamminGraham]

Ben Bayer, Onkar Ghate, and Yaron Brook for Supreme Court

[seankennedy]

(59:29) _"... If the state is interested in helping out fetuses ... If it's interested in helping out POTENTIAL LIFE..."_

Does life begin inside, or outside, the womb?

If outside, how, exactly, does dependence upon the mother's body for fetus vitaility constitute the meaningful difference?

[jeviosoorishas]

The definition of the word: "Individual" is something that is "separate" and as Rand has said, and is one of the Hallmarks of Objectivism: only individuals have rights, and governments solely exist to protect those rights. The fetus growing in a pregnant woman's body is not separate from her, so it has no rights. Whether conservative thinkers agree with this or not, is fine, but the desire to say that this is somehow "Not Objectivism" is utterly silly.

[aeomaster]

I wonder to myself what the court would have answered, if the question was put to them; where does the Constitution deny particular specific rights? (Bear in mind the 9th). The right to own an airplane, for example. Does it mean I have no constitutional right to own an aircraft unless approved by democratic vote?

[truthmonster]

enumerated powers. it went to the States because that's where it belongs. find some Libertarians to be fellows of something named after Ayn.

[SlamminGraham]

Why can't these judges ever go after something truly important like the indulgences and generalizations of prior justices on the commerce clause?

[RedCrowever]

If people freely associated and embodies their ideas, then the cultural/social politics which the subject is based on (which is only subject the conservatives had any appeal)- would have not likely existed. Yet they don’t, as the anxiety of being either wrong, factually or morally, and being in minority/isolation; that is at least a significant part of the relativism, subjectivism, and collectivism. The altruism and utilitarian-fascistic methodology is merely the vehicle of such insecurity.

[doctorbobdc]

In this entire discussion of Rights we are of course speaking of the rights of Persons or Human Beings. One of the difficulties I find is the absence of a commonly agreed upon definition of "person".
Since preborn humans have, in certain cases, legal standing in our courts, I would have to regard them as persons in our judicial system.
It doesn't take a scientist or a modern sonographer or a religious minister to determine when a human being's Life Begins. Can we all agree that each one of our lives began at the point of conception?
Some rights begin only after you attain 18 years of age. The question is not When or Where rights begin but Who has Which rights. And is it ever right to kill an innocent human being?
"Zygote", "fetus", Jap, Kraut, Chink, Nigger... A human being by any other name is easier to kill.
Preborn humans already have legal standing (rights) in certain cases in the judicial system. But whether or not a human being has any rights, is it ever right to kill an innocent human being?
How is it we can choose to be so blind to the glaring fact that these reborn humans (fetus  embryo, zygote, whatever) they are what we each once were? They are simply human beings at a very young age.
So should it be okay to kill any innocent human being as long as you do it "privately"?

[johngalt]

"Persuit of happiness" just as "save democracy with communism" . Ayn spinning in her grave .

[johnhoward]

Since nearly all law is an excuse to get around morality, laws should be ignored when discussing morality.

An unborn baby is not an individual. The term comes from the word 'divided'. Since the unborn baby has not divided and is thus not an individual, to assign rights to it is to assign rights to a part of someone else. A pregnant woman is not two individuals. She is one individual temporarily endowed with two hearts.

But even if we were to grant the false premise that she is two individuals, one of them is living inside the other. When the parasites called authority declare that the internal one has rights that void the rights of the external one, they are off in an intellectual fantasy land of rhetorical word-gaming. Rights then become a blessing bestowed by authority, not something right of its own objective nature.

[rafaelrocha]

Not sure if this is consistent with objectivism, killing a fetus doesn´t seem to be in line with the Ayn Rand way of thinking and if it was it´s pretty inconsistent, not to mention the clear denial of personal responsability, the individual right of a person doesn´t extend to killing another person inside of her, by the same logic my right can´t be extended if that right involves killing someone, i am afraid that the institute might be losing the point here, denying the reality that the fetus is a human for convinience is the opposite of objectivism

[michaelschaefer]

The headline is gaslighting and very misleading.

[vinoverita]

The Conceptual Declassification of The Unborn

By affixing the audio-visual symbol “fetus” to the unborn objectivists are attempting to conceptually declassify it by ignoring the more fundamental question regarding its ontological essence, the type of being that it is. This semantic chancery turns on fallacious distinctions between the concepts “human” and “person” (a violation of the knowledge hierarchy) and reading ideas into the definition “individual” (e.g. that physical dependence or a particular stage of development eliminate individuation).

Between the concepts “human” and “person, ” the former is the more fundamental concept - the one on which the concept “person” is logically dependent.

A standard definition of “person” demonstrates as much.

Person: a human being regarded as an individual. (Oxford Dictionary of English)

Here objectivists will argue that so long as the unborn requires sustenance from “inside” the mother’s body (it’s argued that post-natal breast feeding doesn’t count as as physical dependence or non self-sustaining. “Individual” must imply “inside and connected 24/7” by natural tissue), he or she is not an individual. But this argument requires special-pleading. It necessitates that one read a host of ideas into the definition of “individual” that no one would do when using the concept this word represents.

The same dictionary defines “individual” as “single” and “separate.”

Unless one collapses the entity-attribute distinction, it is clear that there are two humans - two people - when we are discussing a mother vis a vis her unborn offspring. In the unborn is a “single” and “separate” DNA that will not only guide early development, but even hereditary attributes that will appear in childhood and adulthood, from hair, sex, and eye color to personality traits. The fact that it is connected to the mother’s body no sooner renders it less a single separate entity than it does when it latches on to the mother’s breast after it is born. Connective tissue doesn’t render a human being less human, less alive, less ontologically separate and individuated. The unborn is not an attribute of the mother like her ear and nose that have no inherent capacities to exist apart from the entity of which they are the attributes. It is a separate entity - a fact that the act of abortion validates in that the unborn is murdered whereas the mother survives its death.

Whether the unborn human takes in its sustenance or air on its own is irrelevant to the fundamental and essential questions, which are:

1) Is the unborn alive?

2) Is the unborn a human being?

3) If it’s not a human being, what kind of being is it?

To say it’s a potential human being doesn’t answer the question. To be is to be finite, to be a specific entity with specific characteristics, with a specific nature. Is that nature human? If it is human and it’s alive - it is, by definition, a person (see definition above).

The corollaries of the principle of identity are 1) the necessity of attributes, 2) the necessity of difference and 3) the necessity of relationship.

The unborn meets all these criteria. The unborn has its own attributes. It is a different entity than its mother. And it shares an objective relationship to her both qualitatively and spatially. We know where the unborn ends and the mother begins despite the human tissue that unites them. The unborn is objectively not the Mother’s body. It is objectively human, and objectively alive. He/she is a “person” by definition. Objectivists seek to blur this fact by failing to make the entity-attribute distinction. A human cell is not a living being of the species Homo Sapiens” anymore than a person is a cell on the body of society.

“But It’s Not Self-Sustaining. It Requires The Mother’s Body To Live.”

I could get into a car accident today and require oxygen and intravenous feeding - full life support. The loss of those self-sustaining capacities wouldn’t make me any less alive, less human, or less individuated than does the lack of the unborn’s full development thereof and dependence on the body of his or her mother. The argument to the contrary lacks philosophical coherence and consistency. It relies on a false, tacit assumption, which I will explicate.

If I were on life support due to a car accident, in such a state my self-sustaining capacities would no longer be an “actuality” but just a “potentiality” (provided I am permitted to recover).

By extension, the unborn’s self-sustaining capacities aren’t an “actuality, ” but a future “potentiality” like the incapacitated person on life support - provided the initiation of force isn’t used against him/her.

If the justifying premise to kill the unborn is that “a potentiality is never an actuality, ” then what about a person who temporarily loses said capacities counts him as possessing the right to life, but not the unborn - who, if left untouched by the initiation of force - will realize those self-sustaining capacities in a matter of months? What is it about “heretofore undeveloped capacities” and “fully developed but temporarily lost capacities” that gives one the right to life and not the other?

In the case of the car accident, we are truly dealing with an “accident” wherein lack of requisite attention was shown by either the victim of the accident or the driver of another vehicle.

But in the case of the unborn, there are no “accidents, ” but rather the principle of causality, an effect that necessarily follows based on the nature of the entities WHO CHOSE to act as they did. Hence, any complaint that the unborn has incommodiously taken residence inside the mother’s body is a complaint against the nature of reality, a complaint against the principle of causality.

Did the father and mother of the unborn not know that the nature of their act had such a potential effect? Or did they “blank out, ” “drop-context, ” desire “effects without causes, ” pleasures apart from the full metaphysical nature of their chosen action?

Where, pray tell, did they suspect the potential “effect” of their volitional action to be found - outside the body? This is like choosing to eat 3 dozen donuts and protesting that it was an “accident” that you digested the food, metabolized the calories and put on 2lbs.

To initiate force against the “effect” of the cause you volitionally enacted and call it “taking full responsibility” is as rational as the bulimic who takes issue with the biological effect of his own chosen binge by inducing vomiting. It’s a desire for reality to be different than it is, a revolt against the primacy of existence (e.g. the effects of the causes I enacted aren’t what I want, like or planned for), a revolt against the principle of causality and a failure to take full responsibility for the effects of our chosen actions by the sophistical justification of the initiation of force against the unborn.

[DR---]

The pro life movement isn't about saving babies it's about having more single mothers on welfare and thus dependent on government. That and putting rapists above their victims and treating women like they exist to be birthing machines instead of treating them like human beings.

[ryanbruner]

I had no idea objectivism meant loving abortions so much. Unsubscribed

[sunnyvegas]

Really? No pro lifers? You got to be shitting