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Key points
- Patient (or body) autonomy is so important that it continues to be respected after death, as with explicit consent for organ donation.
- Numerous legislators opposed same-sex marriage on the grounds that it would threaten procreation (or “potential life").
- Many forms of birth control work (at least in part) by preventing implantation of a fertilized egg; does that not represent “potential life"?
Recent events necessitate a departure from my current series on the costs of our “system of pleas” (Parts I and II covered Kerry Max Cook’s coerced false guilty plea and the aftermath). I will resume the series after a three- to four-part series in which I will discuss the psychological and legal consequences of Dobbs v. Jackson Women’s Health Organization (2022).
Self-Distancing Post-Dobbs
I have fewer rights today than I had one month ago…
As I continue to process that statement, I find it would be easier to tell myself that I am unlikely to be directly impacted by the U.S. Supreme Court’s recent reversal of Roe v. Wade (and Planned Parenthood v. Casey)—to distance myself from the effect.
Self-distancing is a psychological method of coping with negative events by adopting a broader perspective (e.g., as a distant observer). Successful self-distancing results in lower distress relative to assuming a self-immersive perspective (in which one is anchored to their own narrow perspective).
But, can I self-distance from Dobbs?
No. I do not believe I, or anyone else, truly can.
A Personal Choice
I was raised Catholic, and although I no longer attend mass regularly, some teachings were far too entrenched to be erased entirely. I knew long ago that it was highly unlikely that I could ever personally choose an abortion (for myriad reasons). That was my personal belief. I acted in accordance with that belief. Those were my choices.
Yet, today, in a growing number of states, it is no longer my choice. The outcome might be the same, but the decision still matters. I had decided that abortion was an unlikely option for myself. I had decided. It was my choice. Now, the State can decide for me. The State can decide that the “potential” for life is sufficiently important to override my individual will. My individual autonomy.
Patient Autonomy
Twenty-five medical associations (including the American Psychiatric Association, the American Medical Association, and the American College of Obstetricians and Gynecologists) filed a joint Amicus brief in support of Jackson Women’s Health Organization. One of their primary arguments was that a 15-week ban on abortion would violate “the ethical principle of respect for patient autonomy”—a critical component of medical ethics.
Patient (or body) autonomy is so important that it continues to be respected after death. More than 100,000 individuals are currently on the U.S. transplant waiting list, and about 17 people from the list die each day. One organ donor can save eight lives; tissue donation can enhance as many as 75. Yet, in the absence of an explicit consent from the individual prior to their death, doctors must allow usable tissue and organs to deteriorate. They must respect the autonomy of their patient after death.
In other words, doctors cannot harvest organs from a corpse to save eight actual lives; a woman, however, can be regulated by the State as a vessel for the protection of a “potential life.”
“Potential Life”
The Court claimed that “Abortion is different because it destroys… ‘potential life’…” In so doing, they claimed that other past precedents (e.g., Obergefell v. Hodges [right to same-sex marriage], Griswold v. Connecticut [right to contraception]) would be spared similar treatment.
This Court’s memory is short. Just over a decade ago, the Bipartisan Legal Advisory Group of the U.S. House of Representatives defended the constitutionality of the Defense of Marriage Act by claiming that it rationally advanced government interests. Namely, that they were “defending and nurturing the institution of marriage by avoiding the creation of a social understanding that begetting and rearing children is not inextricably bound up with the institution of marriage…” In other words, numerous legislators opposed same-sex marriage on the grounds that it would threaten procreation (or “potential” life). If such arguments were repeated by the State today, the Court could easily use the same logic they applied in Dobbs to overturn Obergefell.
Griswold is even more vulnerable. Many forms of birth control, including intrauterine devices (e.g., Mirena), are thought to work (at least in part) by preventing implantation of a fertilized egg. Does a fertilized egg not represent “potential life”?
Potential Implications
In sum, the Court that deemed "viability" too slippery a term on which to hang judicial precedent hung theirs on the term "potential."
We must all be aware of the potential that term has to reach us all.
