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Down goes Roe

And with it, a classic statement of expressive individualism

Justice Anthony Kennedy in 2015 Associated Press/Photo by Manuel Balce Ceneta

Down goes <em>Roe</em>

With the fall of Roe, Justice Anthony Kennedy’s incoherent definition of personhood is once again a point of discussion. For readers unfamiliar with it, it is found in the U.S. Supreme Court’s 1992 abortion decision known as Planned Parenthood v. Casey. The passage reads:

“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”

Confused? You should be, as this is nonsense, albeit written by a highly intelligent man and embedded in a key decision regarding the U.S. Constitution.

But critics might well push back and demand to know precisely why the statement is incoherent. The most obvious answer is that it is complete nonsense to say that the state has no interest in defining the matters listed. The state has every interest in these things and indeed expresses that interest through its laws and its legal processes. Kennedy, who retired from the bench in 2018, merely invoked such nonsense in service to a death cult that did not want morality defined where it would be inconvenient to its goals.

It may be a deeply tasteless example, but Ted Bundy may well have had his own opinion on existence, the universe, and the mystery of human life, but when he chose to give expression to that by murdering innocent women, the state was right to hunt him down, try him in a court of law, and then impose the appropriate and legally defined punishment. Even Justice Kennedy must know there are limits to how far someone can take his definition to justify licentiousness.

We live in a world where there are those, from powerful politicians to loud-mouthed activists, who want to tell us that the most important rights attach to things they cannot actually define.

Second, abortion law obviously operates with a state-sanctioned notion of personhood. Any law that speaks to abortion, whether pro or con, must do so. Thus, for example, a law that permits abortion up to the point of natural delivery clearly requires that the baby in the womb does not enjoy the rights of the baby outside of the womb. That assumes a definition of personhood that begins as the baby exits the birth canal.

U.S. laws are rather inconsistent on this point. Thus, for example, Scott Peterson was sentenced to death for killing not only his wife, Laci, but also their unborn child. One can only murder a person and so the birth canal made no difference in that case. Yet, even here it is obvious that the law is deciding what does and does not constitute personhood.

If Kennedy’s mystical musings are such obvious nonsense, why did an intelligent man write such and how did they come to be so influential? The short answer is that this argument is of a piece with our present age. They enable the myths we tell about ourselves and our place in this world. They appeal to our fallen human desire for autonomy and self-definition that are part of the god-like powers we like to ascribe to ourselves.

And remember, this is the modern West we are talking about. It should be obvious that in this affluent and indulged world, incoherence has never prevented an idea, however crackpot it may be, from gripping the popular imagination as long as it appeals to our emotional sense of who we are. After all, we live in a world where there are those, from powerful politicians to loud-mouthed activists, who want to tell us that the most important rights attach to things they cannot actually define. Women’s rights are being destroyed by the overturning of Roe, they claim, but those very same people are incapable of telling us what “women” are. And so, it is with abortion. Persons need to be protected by the state. But the state has no idea what a person is.

Thus, given its incoherence, one response to those complaining about the fall of Supreme Court precedents on abortion might well be: “If you want precedents to stand the test of time, don’t build them on such inane, self-serving gibberish.”

Carl R. Trueman

Carl R. Trueman taught on the faculties of the Universities of Nottingham and Aberdeen before moving to the United States in 2001 to teach at Westminster Theological Seminary in Pennsylvania. In 2017-18 he was the William E. Simon Visiting Fellow in Religion and Public Life in the James Madison Program at Princeton University.  Since 2018, he has served as a professor at Grove City College. He is also a fellow at the Ethics and Public Policy Center and a contributing editor at First Things. Trueman’s latest book is the bestselling The Rise and Triumph of the Modern Self. He is married with two adult children and is ordained in the Orthodox Presbyterian Church.

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