by Daniel A. Kaufman
Abortion is now illegal in the State of Missouri, where I live. If my twenty-year-old daughter was to become pregnant, she would be required to carry the baby to term and give birth to it, under threat of a felony conviction. In a number of the states in which the recent Supreme Court ruling triggered automatic anti-abortion laws, there are serious discussions going on about monitoring and prosecuting those who might cross state lines to seek an abortion in an abortion-permitting state. Indeed, several major companies with substantial investments in these states have stated publicly that they will pay for their employees to travel out of state, if they want an abortion. It’s all quite mad, and I’m still wrapping my mind around the fact that we’ve gotten to this point; that we’ve gone this far backward on women’s basic status in our society. But here we are.
Many commentators will be doing deep-dives into the details of the ruling and all of its potential implications. My interest, however, is in the general question of reproductive freedom, and why one cannot have a liberal society without it, and the short of it is that reproductive freedom is a form of bodily autonomy, and bodily autonomy is fundamental to the very idea of a liberal society, let alone any acceptable implementation of one. With regard to the question of abortion’s legality, then, the moral dimension is largely irrelevant.
For political-philosophical and prudential considerations to supersede moral ones is hardly unusual. Whatever one might think about the morality of imposing the death penalty on convicted murderers – I easily can see the case for saying the John Wayne Gacys and Jeffrey Dahmers of the world deserve [in the moral sense] to be killed – as a matter of prudence, the state cannot impose irreversible punishments, when the relevant systems are inherently and necessarily fallible. Executions, in short, are a form of reckless disregard. And while I’m sure there are few people who think it immoral to drive thirty-five miles-an-hour in a thirty mile-an-hour zone, municipalities legitimately enforce thirty mile-an-hour zones, nonetheless. The point is not that there is nothing ethical wrapped up with prudence [there are ethical considerations wrapped up with the prudential injunction not to impose irreversible punishments by way of imperfect systems], but rather that the morality of the thing itself – driving faster; killing murderers – is not the governing consideration. And as the question of the thing’s morality is a matter of irresolvable dispute, if it is taken as the governing consideration, we wind up with unsurpassable and toxic political divisions; a winner-takes-all universe, in which political victory means forcibly imposing one’s morality on others, and political defeat means having others’ morality forcibly imposed on you. And they will be imposed on you, because you will not always prevail in political contests.
So, the question of whether having an abortion is morally right or wrong is irrelevant to the question of its legality, insofar as there are overriding politico-prudential considerations to take into account. A liberal polity, at a bare minimum, depends upon sustaining a rigorous distinction between the public and the private and granting substantial prerogative to the private, with respect to incursions from the public. In liberal societies, like the US, this prerogative is often extended as far as a person’s place of residence or even his or her land. That there are things you can do to an intruder on your property – including killing him – that you could not do to him out on the street is one expression of this prerogative. That the police cannot enter your home without a properly served warrant is another. One would think that some similar prerogative must also operate at the bodily level or an even stronger one perhaps, insofar as one’s body represents a far more intimate portion of the private sphere than one’s house or land. It is why the state cannot compel you to donate an organ, even if considerations of Utility deem it obligatory, or prevent you from masturbating, even if there is a credible moral philosophy that prohibits it. It also is why the state cannot compel women to give birth, regardless of whether there are credible moral reasons suggesting they are obligated to do so. It beggars belief to suggest that one’s prerogative on one’s land is so great that you can shoot dead a person on your property, but that one’s prerogative over one’s body is so small that the state can force you to give birth. But once again, here we are.
At this point, a clever opponent of legal abortion will invoke the bodily autonomy of the fetus in an effort to make this a matter of competing private prerogatives, as John Finnis did in his critique of Judith Jarvis Thomson’s famous “A Defense of Abortion.”  And if the relevant, governing question was abortion’s morality, we’d have to get into the weeds of the conversation between Finnis and Thomson. Fortunately, it isn’t, and the prudential injunction already invoked remains operative. If fetuses gestated outside of the mother – perhaps down the street – we would not be having this conversation, as women’s bodily autonomy would not be at issue. As it happens, however, human fetuses gestate inside women’s bodies, so a mothers’ bodily privilege is in full effect. And remember, once again, it is not credible to suggest that one can kill a grown person on one’s property, on grounds of private prerogative, but that a woman has insufficient bodily autonomy to determine whether or not she is going to give birth.
Now all of this depends upon the value of living in a liberal society, but this is something I’ve already written about on a number of occasions, so I won’t say too much about it here. Still, I’ll offer two observations.
First, the United States is in fact and by design, a liberal polity, something – as already mentioned – that is reflected throughout its foundational documents and enumerated and unenumerated rights. [The ninth amendment to the US Constitution explicitly states that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”] If one political faction in this country wants to alter the country’s fundamental nature – wants America to cease being a liberal polity – it will require a constitutional convention or a raftload of major constitutional amendments. It cannot be effected by the judgments of a bunch of political appointees to a court [including the Supreme one] or a rabble of state legislators.
Second and as I’ve already maintained, the preferability of a liberal society over other types also has a purely prudential rationale. I’ll summarize it again here:
A liberal polity is preferable to any other, because you cannot win every election and you cannot kill all your opponents. 
I want to close with a brief remark on systems.
Because the landmark Supreme Court rulings of the mid-20th century had such a positive impact on American society – the ruling regarding desegregation being the most obvious example – we came to think of the court as the place where fundamental rights were protected in the face of hostile populations. More generally, many if not most Americans think this about the Constitution and the Bill of Rights themselves: that they provide systemic protection of fundamental rights and liberties from the vicissitudes of democracy. People, after all, can vote for anything, good or bad.
But this reliance on systems is a mistake, because there is no system that can be designed, whose proper functioning does not depend on the good will of those charged with implementing it. Bad actors will always prevail over systemic obstacles, and this latest Supreme Court decision is merely the latest and most egregious illustration of that fact. Liberties and prerogatives – and liberalism itself – need to be re-established and re-defended with every turn of the political cycle, in perpetuity.