– Author’s sketch and revision of an artistic rendering of Hildegard of Bingen’s vision recorded in Scivias, entitled “The Creation of the Soul,” from the Rupertsberg Codex –
In Receptive Bodies, the late literary and queer scholar Leo Bersani takes up the work of Peter Sloterdijk, especially the first volume of his three-volume Microsphereology, Bubbles. Sloterdijk persuasively argues that our first relationship is not with our mother, exactly, but with a “non-object” he calls our With — that is, the placenta:
[I]n truth, obstetricians know that there are always two units which reach the outside in successful births. The child . . . never emerges from the cave alone. . . . In terms of its psychodynamic source, the individualism of the Modern Age is a placental nihilism (387).
A serious analysis of Sloterdijk’s Microsphereology, especially as it relates to psychoanalysis (e.g., 349ff), must wait for another time. What interests me here is his engagement with an artistic rendering of Hildegard of Bingen’s vision recorded in Scivias, entitled “The Creation of the Soul.” My amateur sketch of it appears above — and I genuinely cannot explain what possessed me to draw my own version.
Here is the original, from the Rupertsberg Codex:
According to Sloterdijk, pregnancy for Hildegard
repeats the creation of Adam: physically as the function of a solid from a liquid [cheese or dough are in the figures’ baskets] through concrescence, psycho-pneumatically as the inspiration of the soul through the descent of the spirit orb from the angelic space into the fetal body. According to the traditional view, the latter takes place around the middle of pregnancy — that is, at a point equated in earlier doctrines of female wisdom with the beginning of palpable movement in the womb (367).
This “middle of pregnancy” — roughly 20 to 24 weeks, give or take — is also the point at which modern medicine teaches us that fetal lung development has progressed far enough that survival outside the womb becomes possible, with significant NICU support. The fetus, in the middle of pregnancy, receives lungs/breath/soul. That is, by the way, an idea that stretches back at least to Aristotle.
This brings me to Roe v. Wade (1973) and its companion case Planned Parenthood v. Casey (1992), which together regulated abortion access in America for five decades before being overturned — wrongly and foolishly, in my opinion — by the Court in Dobbs v. Jackson (2022).
Here is the argument I want to make: Roe was indeed an instance of judicial overreach. The irony is that its overreach favored the so-called “pro-life” position.
The Roe Court honestly confronted the originalist reading of the Constitution and concluded, in the words of legal scholar Katie Watson, “that fetuses don’t fit within the Constitution’s use of the word ‘person,’ and the opinion doesn’t paint the fetus as a character or personify it as an active agent” (Scarlet A, 42). As Watson observes on page 82, according to the Roe Court, “Constitutional personhood only begins at birth.”
The 14th Amendment says “born.” It means born. A strict originalist has no textual basis for fetal constitutional personhood — none.
And yet the Roe Court ruled that the Constitution allows states to ban abortions. The Court made up “viability” as a legal threshold — the point at which states may restrict or even ban abortion in order to protect what it called “potential life.” That threshold is similar to the one Hildegard (and Aristotle) identified as the moment of ensoulment: roughly the middle of pregnancy, when breath and life become possible outside the womb.
Roe is judicial overreach — but it was overreach grounded in “pro-life” logic. While Roe protects a woman’s right to abortion because she is an unambiguous constitutional person (conservatives clutch your pearls!) and the fetus is not — it doesn’t go so far as to assert that the fetus is pure “bare life,” or life outside the protection of the law.
Roe is a compromise — a significant one — and one that, as Watson argues, tracks with what women actually do. The vast majority of abortions occur in the first trimester, long before viability. Later abortions are almost always the result of medical necessity or devastating fetal diagnosis. Roe and Casey reflect reality.
Now consider Dobbs. Its reasoning is, if anything, more extra-legal than Roe‘s. The Dobbs Court rejected a constitutional right to abortion on the grounds that the word “abortion” does not appear in the Constitution, but then justified state bans on abortion in order to protect “potential life,” an extra-legal concept they didn’t even try to define in the spirit of the actual text of the Constitution, but left it to the states to define.
Frankly, the Dobbs Court was not being more faithful to the Constitution. It was simply being faithful to a different set of extra-legal values, without acknowledging it.
If you are a genuine originalist, the honest conclusion is fucking shocking: the Constitution, as written and as historically understood, offers the fetus no protection whatsoever.
Not at viability.
Not at any point before birth.
The “born” language of the 14th Amendment is unambiguous.
I think Roe‘s extra-legal reasoning is preferable to that of Dobbs because it is manifestly less cruel.
Roe, like Dobbs, went beyond the strict text of the Constitution. But Roe at least tethered its extra-legal reasoning to something real, both constitutionally and historically. Almost all abortions occur well before viability. However, once the fetus reaches the threshold of ensoulment or viability, it becomes a potential person, a potential citizen that our society has an obvious interest in reasonably protecting.
Dobbs replaced the Roe Court’s wisdom with conservative Christian metaphysics. And we are all, especially girls and women, living with the consequences. The only thing worse may be a radical leftist vision of absolutely no legal constraints on abortion, damning the mother to the hell of individualism