Reposting here a comment I made on a thread at PrawfsBlawg called, "Why Does it Matter if a Fetus is a Person?"

So what, really, is different about the state of the law if we call fetuses persons for legal purposes?

It makes a difference because in one case, you're balancing the rights of two people against each other, and in the other case, you're balancing a woman's rights simply against society's preferences about what she does. When there are two people involved, it can be legitimate to constrain the action of one with respect to the other. However, if the fetus is not a person, then how do proponents justify restrictions on abortion (other than what might be considered consumer protection measures)? Are those restrictions justified on the grounds that society has enough of a stake in reproduction that it gets to override personal decisions? If so, then on what basis can women be protected from being legally forced to have abortions, or to use contraception, or not to use contraception?

It may not make a difference to the unborn whether or not they are protected because they are legal persons, but it makes a huge difference to the rest of us.

[I'd add to that comment that there are other plausible legal rationales for restricting abortion in the case of fetal non-personhood besides the one I posited above, but I can't think of any that don't have implications I find unacceptable. This is why I do not support, for instance, efforts to overturn Roe v. Wade on the grounds that the right to privacy is not enumerated in the Constitution.]

You've probably heard that Supreme Court Justice Antonin Scalia told an interviewer for California Lawyer that the Constitution doesn't guarantee women equal protection under the law.

In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don't think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we've gone off in error by applying the 14th Amendment to both?

Yes, yes. Sorry, to tell you that. … But, you know, if indeed the current society has come to different views, that's fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that.

What you might not know is that the man considered one of the most stalwart pro-life votes on the Supreme Court also thinks it's wrong to consider human beings persons before they are born.

They say that the Equal Protection Clause requires that you treat a helpless human being that's still in the womb the way you treat other human beings. I think that's wrong. I think when the Constitution says that persons are entitled to equal protection of the laws, I think it clearly means walking-around persons.

Remember, pro-lifers are supposed to elect Republicans so they will appoint more judges like Antonin Scalia — who believes only born men and boys qualify as persons deserving of equal protection under the Constitution. Forget it. We are women who believe that we and our children are human beings worthy of respect and protection, so we're sure as hell not going to accept any so-called pro-life strategy that requires us to sell out our personhood and theirs.

I am a multiply disabled person who strongly advocates the sexual, reproductive, life, and all other human rights of people with disabilities. And I am a feminist who loves the "f" word that so many "but" away. So I welcome almost everything in this statement against the opposition of women's reproductive rights and the rights of disabled people.

 

I would really like to sign it, but I cannot, because it implies yet another unnecessary opposition of rights: between the rights of those who are already born and those who are unborn. So, where and how do I show my solidarity? Do the disability rights and feminist movements have room for people like me who want to fully bridge that often created divide between prenatal and postnatal lives?

 

Now, I am in those movements regardless of who does or does not want me in on them. I am going to keep doing the work, no matter what, just as I have for years. But any sign that people like me are at least sister (or fellow) travellers would be good.