Much ink has been spilled over the decision in Bostock v. Clayton County, whereby SCOTUS decided it is unjust—indeed, a species of sex discrimination—to recognize any link between who we are and what we should and should not do. Negative reactions have poured in through numerous holes. Variously, the court legislated from the bench, proved a need to venture past originalism, and posed a threat to religious liberty.
My pick of the analyses, The Abolition of Man and Woman , sees David Crawford, Michael Hanby, and Margaret Harper McCarthy zero in on the meat of the matter. They recognize that the decision is an example of legal anthropology diverging outrageously from natural anthropology (i.e., who and what the human person is). “What we are dealing with,” they write, “is nothing less than a war on reality itself.” Agreed. However, one concept is conspicuously absent from their analysis: personhood.
To smoke out the origins of de-sexed legal identities, we must return to Roe v. Wade . Specifically—and as unusual as it might sound—we must draw a distinction between abortion, understood as a physical act that deliberately ends the life of a child in the womb, and Abortion, understood as a legal Act that severs the umbilical cord attaching law to mother nature. To begin to reap the rewards of making such a distinction, let us briefly run through three ways to unmask Abortion as a wellspring of lawlessness.
Abortion v. Law
First, the argument from morality. In virtue of being a person, our life possesses a moral dimension. That is, we can be wronged in a way no other earthly creature can. If we agree murder is the most serious crime, then Abortion transforms all other offenses into ‘crimes’ less wrong than something not wrong. More or less by instinct, we can deduce the principle that if abortion is not immoral, nothing is immoral. Cue chaos, both in society and in law.
Second, the argument from rights. As enunciated by the Declaration of Independence, rights are expressed negatively. For example, we have the right to an education because, as a rational animal, it would be wrong to prevent us coming to know who we are. But it would not be wrong to prevent us pursuing an activity were it not for the right to life, since the right to life is the right to be—and we could not do anything were we not alive. Thus, in obliterating the right on which all other rights depend, Abortion refuses natural rights. In the wake of Abortion, society ought to descend into disorder as we fight among ourselves for legal permission to follow our heart’s desire.
And third, the argument from law. As all laws exist to govern persons, and as Abortion institutes a new legal use of the word ‘person,’ it also institutes a new legal use of the word ‘law.’ That is a somewhat dense presentation, so let us flesh out the insight via a thought experiment.
Envisage, if you will, a world in which the human creature is an animal much like any other. A lion, say. Lions live under no law bar that of the jungle because the life of an ordinary animal lacks a moral dimension. In view of that, is a world in which humans are non-persons a world in which man-made law exists? No. Law exists to govern persons precisely because persons are persons.
As persons, we are made in the image of God, are of infinite value, and warrant protection, either by God’s commandments alone or by human law in conformity with God’s. As such, Abortion sees law demolish its raison d’être and illusorily position itself upstream from nature. It is not that abortion should not be lawful, then, but that it cannot be, for murder and law are oil and water.
Exiling the body from law
The clinical practice of emphasizing the legal over the physical might strike some as distasteful. But our approach is not without precedent. In fact, if we value quality over quantity, we are in illustrious company. In Memory & Identity, Pope Saint John Paul II pronounced on the moral status of Abortion, doing so without ambiguity:
Parliaments which approve and promulgate such laws must be aware that they are exceeding their proper competence and placing themselves in open conflict with God’s law and the law of nature.
Similarly, Cardinal Carlo Caffarra delivered an astonishing address in which he looked beyond murder and devoted his attention to disclosing the destructive power of Abortion:
Note well. I am not speaking of abortion as an act perpetrated by one person. I am speaking of the broader legitimation which can be perpetrated by a judicial system in a single act.
To continue down this fruitful path, let us turn to some words of wisdom that may at first sound off-topic: “But I tell you that anyone who looks at a woman lustfully has already committed adultery with her in his heart” (Matt 5:28). The Evangelist Matthew records Jesus highlighting the difference between doing and thinking, teaching us that an attitude can be wrong even in the absence of action. Just so, abortion and Abortion differ in that the former is a physical action whereas the latter silently injects a fatal poison into the bloodstream of law. In the mind of God, Roe was wrong before a drop of blood was shed.
By counterintuitively concentrating on the immaterial, we spot an otherwise obscured detail. Abortion ought to express itself inside law. The question then is, “How?” The inseparability of personhood and embodiment dictates that to deny human personhood is to deny embodied personhood. Said differently, if we artificially reduce the child in the womb to a legal non-person despite being somebody, then we must balance the equation and reduce ourselves to a legal person despite being somebody. “It is impossible to redefine human nature for only one person,” observe Crawford, Hanby, and McCarthy. What is true of Bostock is also true of Roe , which predates Bostock by a shade under half a century.
The logic of Abortion is the annihilation of the body in law. Yes, the metaphysical consequences of immorality take time to kick in, but kick in they do. That being so, Roe ought to have sparked a revolution in legal anthropology and led to a situation very much like the one in which we find ourselves today—a climate of unending legal upheaval wherein the state opposes nature, up to and including embodiment.
All of which leads to an unavoidably confrontational question. Is the body being erased from law because of Abortion or despite it?
Sexed in reality; gendered in law
When we resist the Abortion connection, we soon find ourselves in one of two uncomfortable positions. If we maintain Abortion ought to overthrow the body but is not doing so, we trigger a cascade of tricky questions: Why is Abortion failing to turn law inside out? Is it sheer coincidence that another concept is doing exactly what Abortion ought to? Why, when, and why did that other concept enter into the legal system?
Alternatively, if we reject the connection altogether, we rashly dismantle Christian anthropology by supposing personhood and embodiment are detachable, both in law and in reality.
The connection really starts to shine when we introduce the mysterious word ‘gender,’ which boasts at least four identity-related meanings: sex, the social outworking of sex differences, a caste system applied to the sexes, and one’s inner sense of oneself within the context of sex. But if four, why not five?
When we employ the ubiquitous word to denote the body-shaped hole begat by Abortion, multiple pieces of the puzzle fall into place. As an example, the audacious maneuver elegantly reverses the direction of the flow of ideas between society and law. Self-chosen identities are not traveling from third-rate philosophy into the legal system but are rather a creature of the state flooding into the world at large.
In addition, gender as by-product of Abortion explains why clashing anthropologies share a vocabulary. Gender inhabits the space previously occupied by sex and inevitably clothes itself in the language of the body. Among the remarkable side-effects, ‘sex’ is relegated to a synonym of gender.
Moreover, our Abortion-enhanced vision reveals the battle lines by untangling the relationships between reality, law, sex, and gender. Here in the physical world, everybody is sexed and nobody is gendered, whereas in the world of law, conversely, nobody is sexed and everybody is gendered.
Re-uniting personhood and embodiment
And so to Bostock. The majority opinion penned by Justice Gorsuch makes perfect sense—not according to the physical universe, of course, but according to the denaturalized version of human identity the court inherited from Roe and Casey . For we can hardly install at the heart of liberty Justice Kennedy’s infamous “right to define one’s own concept of existence” and then arbitrarily exempt sex. Roe abolished male and female; Bostock well and truly made public the pre-existing body-shaped, but other than that it merely kept us on the trajectory along which we were already hurtling.
Instead of continuing to think of abortion solely in terms of personhood, and transgenderism in terms of embodiment alone, we must bring the two halves of human identity back where they belong—together. Only then will we see the notion of bodiless legal identities for what it is: a continuation of Abortion by other means. The dots are there to be joined and join them we must. After all, half an anthropology is no anthropology at all.
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