Can the Constitution Mandate Pregnancy and Vaccines?

Some of the arguments being used against Roe are also establishing a defense for vaccine mandates.

The consensus is that the six conservative justices on the Supreme Court will overturn or roll back Roe v. Wade (1973) in a June decision on Dobbs v. Jackson, the case being considered now. For the pro-life movement, this outcome would represent the fulfillment of a long struggle. Or at a minimum, depending on the ruling, it would represent the possible start of a new and more hopeful phase. 

Defenders of the unborn can be forgiven for worrying about it, however. We suffered the debacle that was Planned Parenthood v. Casey, in which the three justices who could have overturned Roe sought cover behind what Chief Justice John G. Roberts, in his Dec. 1 questioning, called a kind of “super stare decisis…a paradoxical conclusion that the more unpopular the decisions are, the firmer the Court should be in not departing from prior precedent.” 

And as much as I trust that Justice Amy Coney Barrett does hold that the unborn child is a human being and has a right to life, and as much as I believe that she has the intention of doing her best to restore that right to the unborn of our nation, a passage in her questioning stands out as having especially troubling implications for that goal.

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Justice Barrett began by characterizing Attorney Julie Rikelman’s argument for the respondent as “the ways in which forced parenting, forced motherhood, would hinder women’s access to the workplace and to equal opportunities, it’s also focused on the consequences of parenting and the obligations of motherhood that flow from pregnancy.”

Barrett follows with an observation about Safe Haven laws and adoption as a remedy to the perceived burden. She continues, 

There is without question an infringement on bodily autonomy, for which we have another context like vaccines. However, it doesn’t seem to me to follow that pregnancy and then parenthood are all part of the same burden, and so it seems to me that the choice, more focused, would be between, say, the ability to get an abortion at 23 weeks, or the state requiring the woman to go 15, 16 weeks more, and then terminate parental rights at the conclusion.

When Barrett agrees that “forced parenting” is “without question an infringement of bodily autonomy,” she seems to accept the opponent’s structuring of the issue, something that happens to conservatives all the time. But a man and a woman have sexual relations, and a child, a member of our species, complete with identifiable DNA, results. The baby grows inside its mother. Far from being forced, this scenario is a given—it is, in fact, how human reproduction works. 

I use the word given advisedly and think it is an important word. One cannot choose the manner of this process; it is a biological fact, as unforced as any other natural process, but with a unique result: a human being. At this point, the man is already a father, and the woman is already a mother. The state does not inject the woman with a baby, nor does infringement on its part occur. 

Conceding this point is fatal because, naturally, an innocent person has the right to resist being forced to do something against his will, and as far as that goes, pro-abortionists are correct. But a person does not have the right to object to natural causes, nor can one person force his will on another innocent person: in this case, the child. Pro-abortionists fail to apply their own standard to those we have allowed them to define away, the unborn.

Accepting the premise that the state forces an unwanted child on a woman results in the distraction of a Supreme Court Justice trying to find hypothetical solutions during the hearing of the case, discussing adoption and so forth—all worthy, of course, but beside the point before her. And that point is quite simple: it’s impossible to go against a mother’s interest when preventing her from killing her child. On the contrary, restraining a person from deliberately killing any innocent human being is for his ultimate good.

It’s the first and universal law that no one may kill an innocent person. The abortionist, not the state, invades the mother’s body and violates her. The role of the state is to protect her body and the baby’s equally from aggression. If the woman sees the child as invading her body, then society owes it to her to tell her the truth about how human beings reproduce. A mother has the right to consent to or refuse treatment for her child; she can never consent to have him deliberately harmed or killed. 

In Barrett’s Dobbs questioning, with its compressed infringement/vaccine mandate sentence, we may discover even more about her jurisprudence, including, perhaps, why she previously turned down cases requesting relief from the Court from vaccine mandates. The thought contained in her words, “infringement on bodily autonomy, for which we have another context like vaccines,” may be something like this: “Pregnancy can be a burden; the state can impose a burden on the woman to finish the pregnancy; the state can impose a burden [mandate] for vaccines.” 

A more coherent expression is this: “A human being has a right to develop according to its nature and has bodily autonomy. The baby is a human being. Therefore, the baby has a right to bodily autonomy, a right to escape being killed.” 

Bringing vaccine mandates into the abortion discussion contradicts the principle of bodily integrity that’s so central to the pro-life position. Insisting that people be injected with a substance is a coercive and forced action; protecting the unborn child from abortion deflects force. Safeguarding the baby’s life inside the body of the mother, the only possible life it can have, is not a burden imposed by the state. 

There can be no equivalence here, that a baby is a burden the state may impose, just as the vaccine is a burden the state may impose. Yet by mentioning vaccines in this context, Barrett implies that there are some invasions by the state on their persons that citizens must accept and are even Constitutional.

With vaccine mandates in mind, conceding Rikelman’s assertion of injustice in protecting the child is dangerous for everyone’s freedom: vaccine mandates play the same role as the aggressor who seeks to have his way with the unborn child; mandates transgress the natural right of a person—adult or unborn infant—to bodily integrity. 

We’ve seen the same leaders who hold the view of the child as intruder and the abortionist as protector also want to violate personal freedom by forcing injections. If pro-lifers agree, they are mistaken and forgetting that the child, too, has personal freedom. Until this past year, it was universally held that any medical procedure must be accompanied by informed consent, that the subject of the treatment makes the decision, and that fulfilling basic human needs like education, work, and ordinary travel cannot be restrained by that decision. That is, we agreed on informed consent, except for the unborn child. Overturning Roe seeks to right that wrong and restore to the child the presumption that it does not consent to being killed.

Some regard health mandates and the loss of medical freedom as a worthwhile trade to save the lives of the unborn, but one side is not bargaining. Vaccine mandates will inevitably increase demand for abortion. As the bureaucracy, with its embedded experts, seeks to fine-tune what it deems public health, they will pursue more research and development, and thus greater perceived need for the fetal tissue on which it has come to depend. Although pro-abortion rhetoric centers on emotional appeals, abortion is an industry with rapidly expanding possibilities. Further, the new state-managed health regime’s implicit paradigm is eugenic and utilitarian; those traits always end in abortion.

Vaccine mandates are not a bargaining chip in a game of “what can the state wrest from the person in matters of autonomy.” We’ll only get more of what we have—a war of all against all, with children as the primary victims. I hope Justice Barrett realizes that pro-abortionists may not object to losing Roe: against the possibility of the ruling being struck down, the states they control have proactively passed broad guarantees of unrestricted abortion and even infanticide. With her apparent view that there is a Constitutional power to burden people in general, whether the question is vaccine mandates or pregnant women, pro-abortionists don’t lose much and gain a lot.

Using COVID-19 as a pretext for mandates, bolstered by superficially pro-life rhetoric, enables the administrative state to overcome Americans’ sense of autonomy and to justify any intrusion, imposing a sort of personal eminent domain—carried out with threats rather than compensation—over body parts, including gametes, corneas, kidneys, and whatever else seems valuable. The most valuable resource from this point of view is fetal tissue. Vaccine mandates rationalize forced abortion because no opportunity will be off limits for the state so empowered; no part of the human being or even his life will be protected from the state’s perceived interest, if we agree that the state may burden personal autonomy. 

It’s difficult for pro-lifers to see things this way, so twisted and dominant has abortion rhetoric become, until we recover our conviction that the child, too, has personal autonomy. We must reject the false logic embedded in Barrett’s question that pro-life laws under the Constitution are a burden. Only the truth of the inherent dignity and integrity of the human being stands in the way of this view.

It’s been a long fight. We want the unborn saved. We want the slaughter to end. We must care about the terms of the decision, if decision there is to be, lest our victory be Pyrrhic. The Court should examine first principles and basic morality. I hope that Barrett’s thought process does not find its way into any decision to strike down or mitigate Roe and that she has the opportunity to consider its broader implications for freedom and respect for life. Only the basic human right of bodily integrity, firmly located in the dignity of each person at every stage, as created by God in His own image—expressed in its ultimate form as the right of the innocent to life—stands athwart the raw power of the state.

[Photo Credit: Olivier Douliery/AFP via Getty Images]


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