In Dobbs v. Jackson Women’s Health Organization, the exclusively Republican-appointed majority opinion wrote:

In order to legislate out from the bench a woman’s right to an abortion, a right that has been around for a generation and is deeply rooted in contemporary America, the court had to argue that this right is neither listed in the constitution explicitly, nor an “unenumerated right” protected by the 9th amendment stating,

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,”

nor derived from other established unenumerated rights such as the right to travel, to bodily autonomy, and to privacy.

We all agree that “abortion” is not enumerated in the constitution, so the question really is whether abortion is an implied or “natural” right. The court’s improbably Christian majority (as there’s a 1/550 chance of drawing 6 Christians in a row from a random sample of modern Americans) argued that abortion is not protected as an unenumerated right.

My previous substack article pointed to problems with the court’s logic. If we’re too generous with the 9th amendment, then it can be seen as protecting every right not enumerated in the constitution. Consequently, to constrain the scope of the 9th amendment the court has previously limited it to rights that are “deeply rooted” in “our Nation’s” history. Previously, I pointed out that the court’s originalist interpretation of our Nation is centering only the subset of the nation that is white, Christian, and from England - an improbable choice were the court’s majority not implicitly biased in favor of the culture and religious beliefs of the majority. In this article, I want to expand on both of those points.

First, a trigger warning for the snowflakes: as we’re arguing about legal matters in a pluralistic society, we have to establish evidentiary standards for what is and is not allowable evidence that can inform our views. When considering expert testimony, courts are instructed to evaluate the “relevance” and “reliability” of expert testimony - when it comes to considering our common human history, one’s religious beliefs are irrelevant. Instead, we must ground ourselves in empirical facts from the implied age of the Earth based on the isotopic decay of Uranium to Lead, the fossil record, and the evidence of human nature, from our evolutionary relationships with other animals to the documented cultures and traditions of the world’s many people. Christianity is one religion founded 2,000 years ago. Judaism dates back 4,000 years, and the world’s many other religions, from Native American to Asian and African - all represented in contemporary United States populations and protected by the freedom of religion - originated in various places and points in time.

Epistemologically, religious beliefs are not evidence of anything except itself, the sociological trait that the person believes X. As evidence of one’s religious beliefs or lack thereof can’t be used to discredit a witness, nor can one’s religious beliefs be used to discredit evidence. If some people believe a cow is sacred, that doesn’t mean the cow is protected from slaughter by their freedom of religion, nor does it change the facts and laws used to prosecute an animal rights case. If the Supreme Court wishes to open for litigation what constitutes the “deeply rooted” traditions of “our nation”, then we have to examine these ideas separately from our religions and focus on the evidence, including the anthropological evidence of human biological and cultural evolution. If you believe the world is only 5,000 years old, you’re free to do so, but that is evidence that can limit our evaluation of “deeply rooted” traditions preceding one’s empirically falsifiable beliefs about the age of the Earth or the course of human history. After all, subjectivists are free believe that the Universe started at their birth, and their belief doesn’t change our legal practice of including in any case the laws and events preceding their birth.

Now, that we’ve established the subjectivity of Christianity - which you’re free to believe - let’s get back to Dobbs v. Jackson. The court’s dissenting opinion argued that application of originalism as a constitutional method cherry-picks a point in time, ignoring all history, cultural changes, and legal precedents since. To evaluate this constitutional method, let’s imagine our constitution were written at a different point in time. If our constitution were written by an Australopithecus tribe 4 million years ago, then originalism in assessing unenumerated rights would limit our unenumerated rights only to those our primitive ancestors believed, ignoring everything since. Four million years can pass with agricultural evolutions and Greco-Roman philosophical advancements, even Christianity and the Enlightenment, and an originalist would evaluate our “traditions” for a 9th amendment as frozen in a point in time so distant it doesn’t even reflect our current species, Homo sapiens. Such a constitutional practice is at odds with our natural biological and social evolution and any society living by this practice would likely fail in a competition between societies by limiting social evolution and change. If we applied this over any substantial period of natural history, originalism would anchor our civilization to primitive (or even extinct) human biology and culture.

Of course, an originalist would just retort: if you want to change the constitution to keep up with changing human societies and cultures, amend it. That is one way to resolve this conflict: amend the constitution to specify the means - the timescales, the sampling of humanity, and more - for determining which unenumerated activities or choices are unenumerated rights.

Given our partisanship all but precludes new amendments on abortion law, we can’t amend the constitution but we can litigate the decision from the Supreme Court by revealing contradictions or blatant subjectivity in its methods that either undermine the majority’s decision, should we pursue fewer contradictions and more objectivity in the reading of the law, or undermine the idea that the supreme court calls balls and strikes as a legitimate and objective referee of the law.

How could an objective observer fairly assess “deeply rooted” traditions of “Our Nation”, given our forever changing pluralistic citizenry and the variable depths of our nation’s many peoples’ cultural roots? As discussed in my previous post, and as discussed by others here and documented in scholarly literature here, Native Americans, for example, were excluded from “our Nation” in the majority’s culturally myopic view of “deeply rooted traditions”.

In addition to ignoring the ancestors and traditions of people who are indisputably part of “we the people” today, the majority also cherry-picked examples of deeply rooted traditions to comparatively shallow roots that are younger than Christianity. The court picked the Manga Carta, a document written in England in the Post-Classical Middle Ages, as an example of a deeply rooted tradition. This example doesn’t only exclude Native American or African American traditions dating back to the same time period, but it also chooses a subjective choice of the depth of European traditions under consideration.

With the white marble columns in the ionic order all around Washington D.C., we’re reminded of another time in history that is more deeply rooted than the Magna Carta. The Greek democracy and the Roman republic were the intellectual ancestors of our own and their philosophers were in the minds of our Nation’s founding fathers. Even if we unjustly restrict ‘our people’ to Europeans, we have to include the Greeks and the Romans, who have a complex history of sanctions against abortion in some places and times, and medical support of abortions in other places and times. In Plato’s Republic, he quotes a fictional conversation with Socrates advocating for society to eradicate unfit children. Aristotle, who had a clear cultural impact on the Founding Fathers, argued in Politics that abortion Spartan culture, for example, granted women considerable freedom and even practiced infanticide if the infant was deemed unhealthy. Socrates, Plato, and Aristotle laid the principles on which our new Republic would be based, and their culture and all supported not just abortions, but infanticide. Spartans were explicitly in favor of infanticide and Athenians made now laws against abortions except in the special case where it might terminate the life of a child who could later inherit a deceased father’s land. If we’re being originalists, why should the Magna Carta be considered a central document for a “deeply rooted” tradition in “our Nation”, but not Plato’s Republic or Aristotle’s Politics? Why should we choose our “deep roots” from England when it was ruled by a Christian church, and not Sparta or Athens?

This is the thing about “roots” as we understand them in modern genetics, let alone memetics. My genes may be passed on to my kids, and my kids’ kids, and so on, branching forward in time as a family tree of inheritance expanding outwardly from me. Looking backward, my genes came from my mother and my father, and theirs came from their mothers and their fathers, and so looking back in time or beneath the soils of our family tree, our roots also bifurcate and coalesce indefinitely until long before the origin of humanity. In addition to the challenge of which people are included when we consider “our Nation”, which of these many tangled branches should we choose as my “deep roots”? Should I choose the English Christians, the Athenians and Romans with their classical gods, perhaps the pagans and polytheists before them, or the Australopithecus roaming in Africa?

4,768 Family Tree Illustrations & Clip Art - iStock | Family Tree Design, Family Tree Examples - iStock — This tree can represent our genes passed on to our kids as well as our genes inherited from our ancestors. Our roots going back in time branch & coalesce: Which root paths or points define “deeply rooted” traditions?

The question of “what are our traditions” becomes equivalent to Socrates’ question of Euthyphro, “what is piety?” In one iteration before leaving in frustrated defeat, Euthyphro said piety is what the Gods believe is good, to which Socrates rejoined that the Gods disagreed. Euthyphro said, then, piety is what all Gods believe is good. Socrates asked: is it good because the Gods believe it, or do the Gods believe it because it is good? If the former, then it is subjective, if the latter then we have not actually defined what is “pious”. Is it a deeply rooted tradition if ALL of our ancestors believed it? If so, then we must include ancestors before the Magna Carta. If not, then we have not yet defined what determines some doctrine’s inclusion in our “deeply rooted traditions”.

From a biological perspective, we can gain additional insight. Instead of considering “deeply rooted”, we often call these unenumerated rights “implied” or “natural” rights. Philosophers like Locke, Russeau, Hobbes all disagreed on precisely what these natural rights were, but the concept is derived from considering liberties that are fundamental to our human nature. Our understanding of human nature has evolved (pun intended) quite a bit since the natural rights philosophers of the past, and so it’s worth reconsidering natural rights in light of our more accurate understanding of humans’ state of nature.

If we follow our genes back in time, they go all the way to primordial ooze over 3.6 billion years ago. We don’t know exactly when life started, nor the exact mechanism, but there is strong evidence of life on Earth dating back 3.6 billion years. By “life”, we mean self-replicating and metabolizing organisms. Life on Earth encodes its physical functions in the form of genes. Again, we don’t know the exact mechanism by which our genetic code came to be, though there are many reasonable hypotheses and not knowing how a car is made, for example, doesn’t prevent one from understanding the car was made in the factory whereas our genetic code brewed in a chemical reaction of Early Earth.

All humans alive today share common ancestors not just with the early hominids, but, by all of our diverse genes and cultures converging at the point of common ancestry, we share a common ancestral state of nature with every life form going back to this primordial ooze. The central, fundamental liberties of living things are to eat and decide when and how to reproduce. Abortions, and even infanticide, are common in nature especially under resource limitations. When an animal commits to reproduction, they are investing their hard-earned resources from eating (and, for more modern humans, their private property) towards supporting a potential successor. Under resource limitations, however, animals frequently choose to exit the commitment to sacrifice their resources (food and, for humans, property) take care of another being. Birds in unpredictable habitats, for example, will often abandon their eggs. It wasn’t just Spartans who were selective about their children - it is a common feature of many mammals to cull their litter. Even in primates like macaques, neonatal abandonment is common - nearly 8% of offspring in captive colonies of macaques are abandoned and this rate is higher in lower-ranking individuals

This closer look at nature reveals close parallels with humans and our contemporary debates over abortion. Many people may choose to abandon reproduction if they are resource-limited and/or if they live in uncertain environments. Some of the most common reasons given for abandoning pregnancy stem from women’s emotional distress over the acquisition of resources, as chief reasons are education, jobs, and finances. As grebes abandon their last eggs in uncertain environments, mammals engage in infanticide under resource constraints, and low-rank macaques are more likely to abandon infants, humans under economic distress fearing their ability to acquire resources in the future or believing they may be unable to care for a child are more likely to choose to abandon pregnancy.

While “deeply rooted” traditions like the picking Magna Carta while ignoring ancient Greek philosophers is fraught with subjectivity, our ancestors in nature have always had the liberty to acquire resources (property) and choose not only when to reproduce but when to abandon offspring. This unalienable right to abandon offspring, which all of our ancestors had in a state of nature, precedes even obviously critical human functions like sleep or one’s choice of language (both of which should be unalienable rights, should this come up in a court case).

If the Supreme court wishes to be legitimate as a body seeking objective choices of “our Nation’s deeply rooted traditions”, it cannot cherry-pick the past. Included in our deep traditions are deep disagreements, and as surely as the Magna Carta is part of our deep roots so too are those who opposed the Magna Carta - the mere existence of people who opposed abortion is not sufficient to declare this part of our deep history. The majority opinion cherry-picks their times of history and specific cultures of a subset of our people, incidentally the cultures and people they like the most and who share their view on abortion. If we were to seek a more objective and inclusive definition of “our Nation’s deeply rooted traditions”, it must include the common roots of all people in our nation. If we go back to that point in time at which all of us share a common ancestry, we see humans in a state of nature acquiring resources and having the choice not only to abandon pregnancy but even to abandon infants.

Adoptions is the mechanism by which today’s Americans retain their natural right to abandon their children under resource limitations. Given our medical ability to raise children outside the womb, such as through surrogate mothers, it is a woman’s natural right - advanced by modern medicine - to abandon their offspring earlier than birth. Those for whom this life is sacred are free to use their own private property to support the life of an abandoned embryo as it is their right to live by their piety as surely as it is Homo sapiens’ unalienable right to choose not to allocate limited resources to reproduction at any point after conception.

The roots of offspring abandonment, being so central to life’s main operations of resource acquisition and reproduction, are far deeper than the Magna Carta. As such, offspring abandonment is an unalienable right of our species that supersedes in objectivity and precede in human biological history all other more established unalienable rights such as the rights to travel, privacy, autonomy, and more. Others, not violating a woman’s right to privacy, are welcome to scoop up abandoned offspring and allocate their own private property to care for the abandoned organism. Under an originalist view, that organism will acquire rights as soon as it is legally able to own land (in this way, we naturally exclude dogs, cows, and more from legal protection in our constitution).

A Biologist's Guide to Life

A Biologists' Guide to Natural Rights