The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

More on Abortion, Liberty, and Analogies

A response to some of my critics


My initial posting on the Dobbs case [here] has generated more than the usual volume of commentary, and I want to respond to one thread running through many of the objections to my position that, briefly stated, a woman's right to terminate her pregnancy is a component of the "liberty" protected under the Due Process Clause, which protects many personal, intimate, life-altering decisions (e.g, whom to marry, where to send one's children to school, what church to attend, who to have sex with, etc.) from state interference.

Many commenters object to this formulation on grounds that can fairly be summarized this way:  The decision to terminate a pregnancy is not analogous to those other personal, intimate, life-altering decisions because it—uniquely—involves the taking of another human life. Differently put, the state interest in the abortion case—protecting human life—is fundamentally different than in the other cases, and this renders the analogies inapt.

I believe the objection is ill-founded; let me explain why. [The argument below is taken from Judith Thompson's classic essay "A Defense of Abortion," available here] I won't quarrel here with the proposition that there is "another human life" involved; that will get us nowhere. So let's assume, at least for purposes of the argument, that human life begins at conception.

Assume that you are involved in a terrible car accident; you were driving, you took your eyes off the road and slammed into an incoming car. You wake up in the hospital and learn that several people have died in the accident.  One person—the driver of the other vehicle, say—is alive, but on life support.  Both of her kidneys were destroyed.  When the doctors had you both on the operating table, they hooked you up to provide dialysis for your unfortunate victim, processing her blood through your kidneys, in order to keep her alive.  They inform you that it will take 9 months for a transplant kidney to become available because of the victim's unusual blood type, and that you will have to remain hooked up with her for the whole period; if you were to be disconnected, she will die within minutes.

A provision of Mississippi law, enacted explicitly "to prevent the taking of a human life," prohibits you from disconnecting yourself from the dialysis.  You may leave after the 9 month period has expired, but not before.

Would anyone like to try to persuade me that this hypothetical statute is not an infringement on your liberty under the Due Process Clause?  Alternatively, if you are unable to do that, can you explain why Mississippi's abortion law is different on some materially relevant dimension so as to lead you to a different conclusion regarding its constitutionality?