As we await oral argument in Whole Woman’s Health v. Hellerstedt tomorrow, here are some thoughts on how the Supreme Court (i.e., Justice Kennedy) has made use of the concept of "dignity" as synonymous for autonomy and why it's particularly inapt when it comes to abortion. Here's a bit:
In the abortion context, dignity as autonomy is particularly troublesome. In point of scientific fact, the pregnant woman is simply not autonomous, whatever legal fictions (e.g., “potential life”) the Supreme Court may have conjured up to justify its claims. Indeed, the vulnerability and dependency of another human being weigh on her; this may well be inconvenient and even personally quite burdensome, but were we honest, we would call her to an affirmative duty of care to protect the intrinsic dignity of her developing child. Dignity as autonomy would give way, as it certainly must in this case, to dignity as solidarity, our personal and communal responsibility to care for the vulnerable persons entrusted to us. This is how dignity is best understood in international contexts, and this is how parent–child relationships are best understood in all other contexts of U.S. family law, save abortion. Vulnerability begets responsibility.
And further down:
Harvard Law professor Laurence Tribe, smitten with Justice Kennedy over the Obergefell decision, recently suggested that the Court’s jurisprudence of dignity is best understood as the weaving together of fundamental-rights due-process jurisprudence with an anti-subordination equal-protection principle — voila, “equal dignity” — ensuring, Tribe hopes, the ultimate “solicitude for vulnerable groups.” Putting aside the obvious application of this putative principle of constitutional law for the most vulnerable of vulnerable groups, unborn human beings, we can see that its alternative application in support of women as a subordinate group would vitiate against abortion as well. If women with children are indeed socially subordinate, which arguably they are, the response of a civilized society ought not be to cast aside the source of the vulnerability when, as here, that source is nothing less than a developing child. It ought instead be to deliberate intelligently about how, on the one hand, to increase cultural esteem and support for care work undertaken disproportionately by women while, on the other hand, not pigeonholing women into that work, since they are capable of that and more. A delicate deliberation, to be sure, but not one facilitated by the judiciary’s dominion over abortion in the past four decades.
Read all of it here.
