I haven’t tried to keep up with all of the attacks on the leaked draft in Dobbs, but a couple of very odd recent posts by law professor Sherry Colb caught my attention.
In one of the posts, Colb purports to analyze the opening sentences of Justice Alito’s draft. But she never actually quotes those sentences, and she badly misreads and misrepresents them. Here is the opening paragraph of Alito’s draft:
Abortion presents a profound moral issue on which Americans hold sharply conflicting views. Some believe fervently that a human person comes into being at conception and that abortion ends an innocent life. Others feel just as strongly that any regulation of abortion invades a woman’s right to control her own body and prevents women from achieving full equality. Still others in a third group think that abortion should be allowed under some but not all circumstances, and those within this group hold a variety of views about the particular restrictions that should be imposed. [Underlining added.]
Colb argues that “[w]omen who must remain pregnant and birth children against their will simply DO lack control over their own bodies,” and she complains that Alito “demotes what are plain facts to opinion or perspective.” On the other hand, she contends, Alito “credits the belief that a zygote is a baby,” even though, “[a]s commonly understood, the word ‘baby’ does not include a zygote.” By her account, Alito “treats as similar an undeniable fact about forced pregnancy with a false factual claim about what a baby is,” and his “drawing of this equivalence constitutes a lie about a zygote being a baby.”
Let’s unpack Colb’s errors.
1. In presenting the perspective held by many supporters of abortion, Alito states that they believe that “any regulation of abortion invades a woman’s right to control her own body” (by aborting the other body growing inside of her). It is the assertion of that right as dominant that presents a moral claim, not an “undeniable fact.” Colb simply misses this basic point.
2. Colb uses the word baby thirteen times, including twice in quotes, in describing Alito’s supposed account of the pro-life position. Colb’s readers would surely be very surprised to discover that Alito doesn’t use the word baby at all in the passage that she is objecting to. Indeed, he uses the word baby only once in his entire opinion, in referring to the “newborn [put] up for adoption.” Colb seems eager to obscure that the pro-life position, far from resting on “a false factual claim about what a baby is,” builds on the biological fact that the life of a human being begins at conception.
3. Colb’s assertion that Alito “credits the belief that a zygote is a baby” is wrong in a second sense. Alito isn’t crediting anything. He’s dispassionately describing the position of many pro-lifers, just as he dispassionately describes the position held by many supporters of abortion.
4. To top it off, Colb snarkily refers to Alito’s “hero Sir Matthew Hale,” as if Alito’s use of Hale as an authority on the common law is any different from Justice Kagan’s or Justice Breyer’s use of Hale.
In a second post, Colb imagines that Alito might have put the phrase “potential life” in quotes in order “to signify his own rejection of the idea that an ensouled zygote could be anything less than a fully realized person, entitled to take what it needs from its living incubator’s bloodstream.” (Colb is fond of the notion that the unborn child is a parasite.) Colb contends that Alito is “egregiously wrong” in supposedly thinking that “a zygote has an interest in going from potential to actual personhood.”
Alito puts the phrase “potential life” in quotes for the simple reason that he is quoting Roe v. Wade and Planned Parenthood v. Casey. Alito himself takes no position anywhere in the draft on what “interest” a zygote or embryo or fetus might have at various stages of gestation. He instead merely recognizes that there is a legitimate state interest in protecting prenatal life.
What’s more striking is the alternative position that Colb advances:
As moral philosophers have long explained, having an interest means being the sort of creature for whom life could go well or ill. You have interests, and you know that because asking you “how do you feel?” is a coherent question when posed to you. The same question posed to an orange seed or a zygote does not make any sense. Neither an orange seed nor a zygote has preferences, fears, or any of the other feelings and sensations that would give them interests.
I can’t tell from Colb’s account at what point she believes that a human being has “an interest” in not being killed. Does a newborn have “preferences” or “fears”? Does a one-year-old baby know to regard “how do you feel?” as a coherent question? Does Colb really imagine that she is presenting a consensus view of moral philosophers?
Much of the rest of Colb’s post is a bizarre riff on her confusion between gametes (“That ripe egg is a potential person”) and the genetically complete and distinct human organism that comes into being at conception.