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Justice Ginsburg’s reading of Justice Thomas is tendentious, question-begging, and incoherent

by | May 31, 2019

Editor’s note. The following is a Facebook post from Prof. Robert George. The headline is mine.

Supreme Court Justice Ruth Bader Ginsburg

We’ve already posted six stories on the Supreme Court’s ruling on a 2016 Indiana abortion law and will again today.

Justice Ruth Bader Ginsburg is irked. She’s irked at her colleague, Justice Clarence Thomas. Why? Because Justice Thomas refers to a pregnant woman as the “mother” of the child she is carrying. A woman seeking an abortion (“exercising her constitutionally protected right,” as Ginsburg tendentiously and question-beggingly puts it) “is not a mother.”

Hmmm … Let’s examine that claim. If a woman seeking an abortion (and who is therefore by definition pregnant) is not a mother, then a pregnant woman who is happy to be pregnant and is not seeking an abortion is not a mother either. She may think she is, and say she is, but she can’t be. Not if Justice Ginsburg is right.

A woman carrying her living offspring (“child,” “fetus”–what term one uses to denote the offspring doesn’t matter) can’t be a mother or not be a mother depending on whether she wants to give birth to or abort her offspring. She either is a mother or she is not. Now, if Justice Ginsburg is right and she is not a mother, then if the child dies of, let us say, natural causes before he or she is born or during childbirth, then the stillborn child never had a mother. How about that?

A human being that never had a mother. There was, of course, a woman who experienced labor and gave birth to a (stillborn) child–but she was not the child’s mother. The child didn’t have a mother.

I wonder if it had a father. How would one know?

Let’s think about that. What does Justice Ginsburg have to say about the male progenitor of the child/fetus marked for abortion. Presumably he’s not a (or the) father. If he’s not the father, because the child/fetus has no father, he has no rights pertaining to the child/fetus and its fate, but by the same token he has no responsibilities or obligations. Is that really Ginsburg’s view?

What if he doesn’t want to be a father, but the woman wants to bring the child to term and give birth? If birth would suddenly make him a father, should (or shouldn’t) he have as much right as the woman to order an abortion? No? Why not? Does Ginsburg believe in forced fatherhood? Can a man be compelled to be a father against his will?

So many questions.

Categories: Supreme Court