What a tangled web

Confusion over what it means to be human continues to dog public life in the West. Soon after Anneliese Dodds, the Labour party shadow secretary for women, revealed that she does not know what a woman is, U.S. Supreme Court nominee Ketanji Brown Jackson deferred the same question to biologists.

That move was odd: It was obviously an attempt to play to the progressive trans lobby, but it actually revealed Jackson’s lack of understanding of the current debates surrounding gender. Jackson implied that she sees the issue as one of biological essentialism. Contra de Beauvoir, it would appear that she believes one is born a woman; one does not become one.

It is easy to poke fun at the confusion that ensues when reality is denied in the service of the latest political fads and fakeries. Yet while we laugh at the silliness, we may forget that the real confusion here is not over the political excesses of gender theory and the supine surrender of our leaders in the face of its obfuscations. The deeper issue is the confusion over what constitutes a human person. And that has tragic consequences for the most vulnerable in our society.

As a case in point, consider two bills currently under consideration in the Maryland House of Delegates. Both deal with abortion and are clearly meant to be preemptive strikes in case Roe is overturned by the Supreme Court. House Bill 1171 (Declaration of Rights – Right to Reproductive Liberty) proposes a change to the state’s constitution so that Article 48 will read as follows:

That every person, as a central component of the individual’s rights to liberty and equality, has the fundamental right to reproductive liberty which includes the right to make and effectuate decisions regarding the individual’s own reproduction, including but not limited to the ability to prevent, continue, or end their pregnancy. The state may not, directly or indirectly, deny, burden, or abridge the right unless justified by a compelling state interest achieved by the least restrictive means.

In many ways this is standard pro-abortion fare, assuming as it does that the baby in the womb lacks personhood and thus has no rights.

Yet it stands at odds with the other pro-abortion bill that Maryland is considering, House Bill 626 (Pregnant Person’s Freedom Act of 2022), which suggests that sometimes the baby in the womb does have personhood. This bill exemplifies the kind of confusion over human personhood that characterizes today’s politics of taste and convenience.

First, and commendably, it allows the state to prosecute for murder somebody who deliberately and knowingly kills a “viable fetus.” Yet it explicitly exempts the mother (and presumably anybody acting on the mother’s instructions) from any such charge. So is the fetus a person? If so, the exemption of the mother from a potential murder charge makes no sense. Or does the fetus lack personhood? If so, charging anyone with murder is incoherent. Perhaps the bill’s authors should read some Peter Singer. He would have no truck with this flip-flopping on the matter.

Yet the spirit of Singer haunts another part of the bill. Section H explicitly states that the bill cannot be construed as authorizing any investigation of the mother for “experiencing a miscarriage, perinatal death related to a failure to act, or stillbirth.” So a child who dies in perinatal circumstances due to the mother’s inaction has not been murdered. The ambiguity is chilling. What constitutes a “failure to act”? A failure to provide food and hydration? What constitutes “perinatal”? The medical definition includes the first 28 days after birth. Perhaps the Maryland bill is thinking of seconds rather than weeks, but this is nowhere made clear. In short, it is a license to mothers to kill.

This is, of course, consistent with the first bill’s notion that the fetus lacks personhood. Singer has often argued that mere passage through the birth canal does not grant the fetus personhood. A newborn is no more capable of caring for himself or conceptualizing a future after he has departed from the mother’s womb and the umbilical cord has been cut than he was before. In fact, it will be many months before even the healthiest baby will be capable of those things, let alone one born with Down syndrome or cerebral palsy. Yet thankfully our culture has thus far found killing such a child, by neglect or intentional violence, to be unacceptable. If the Maryland bill is a bellwether, perhaps that is changing.  

And why should it not be changing? The confusions to which these two bills witness are the deep-seated confusions of our wider culture. The West no longer has any consensus on what it means to be a woman or even a person. And thus the ethical codes that assume such a consensus are falling apart with dramatic consequences for all sorts of areas, from Ivy League sports to the safety of our society's most vulnerable — the very young and the very old who rely on others to care for them.

We have no shared moral vision and hence we default to the experts — the biologists and the medical professionals — abdicating our responsibility to their technical expertise. Yet this approach does not give us an adequate view of reality. That is why we have abortion bills that flip-flop on fetal personhood and candidates for the Supreme Court who defer to biologists while trying to avoid gender essentialism. This conceptual chaos, rooted in a denial of reality and responsibility, can only lead to chaos. To quote Sir Walter Scott, what a tangled web we weave when first we practice to deceive.

Originally published in First Things.