#342 Musings Beyond the Bunker (Wednesday May 4)
Good morning,
Roe v. Wade, Rest In Peace.
Yesterday I received a text from my daughter, Lauren, asking why I didn’t muse about abortions yesterday. My answer is that I wanted to take some time to think. Even so, what follows feels like a bunch of random feelings and only partial analysis. Ordinarily, I’d argue that it’s better to be late and thorough than go off half-cocked. In this case, I’m going against type. Here goes…
THE LIKELY OPINION
The nation was stunned Monday afternoon with the leak of a draft majority Supreme Court opinion striking down Roe v. Wade as wrongly decided, sending the matter back to the states and our elected representatives. While this was not unexpected, given the Trump/McConnell success in manipulating the system to assure a 6-3 conservative majority (versus the 5-4 majority if prior precedent and the Senate doing its Constitutional duty as otherwise would have mandated), seeing it in print still is a shock.
BUCKING THE TREND
In the past few years, abortion rights have been expanded and criminalization has been determined to be unconstitutional in a number of countries. Countries like Mexico, Argentina, Ireland, India, Nigeria, and others have provided greater access to abortion rights. The United States now joins only three other countries that have tightened their abortion restrictions since 1994. They are Nicaragua, El Salvador and Poland. In Nicaragua and Poland, the restrictions parallel the United States in a telling way—both followed fights to control the highest courts of the land.
WHAT NEXT
Restrictions already imposed on abortions have materially reduced accessibility to facilities that can perform abortions. After the upcoming ruling, more states are going to be emboldened to clamp down. Bans will begin and restrictions on abortions will accelerate. In the meanwhile, clinics that provide abortions (or even counseling) are likely to be shuttered. Some 25 or so states are considered likely to act to restrict choice soon after the opinion is published.
As the father of a young woman and having been a parent, I am saddened. While I would never encourage abortions, nor would I ever view them as a form of birth control, their availability is important for myriad reasons, not the least of which is to not interrupt women’s lives and push them into unfilled or impoverished lives. We have all borne witness to the challenges that an unwanted pregnancy brings to young, unprepared, mothers (and often fathers), who have yet themselves reached adulthood, much less the responsibility of raising another person to adulthood. I cannot imagine the far-reaching implications of this ruling.
THE MAIN ARGUMENT FOR THE BAN AND THE FALACIES CONTAINED THEREIN
First, let’s talk arguments and not the law. There is really only one argument in favor of banning abortion (or making them nearly impossible to obtain). That is that abortion is murder.
The most intellectually consistent argument is that this is the killing of another human being and that the law exists to protect those who cannot protect themselves. An unborn fetus is the most incapable “person” to defend itself, so we must enact laws that protect them. In order to reach this conclusion, one must also conclude that the aborted fetus is a “person.” Yet no one knows the nature of the fetus, particularly in its early stages of development, and it is unlikely we ever will.
My problem here is that this reductive position leaves no room for exception—even though some argue against abortion, while allowing for some exceptions.
Who knows when life begins? Politicians in red states seem to think a “fetal heartbeat,” at six weeks, is the measure. How do they come upon this arbitrary determination? Why shouldn’t it be conception? After all, there is a minuscule chance that the fertilized egg might mature into a human. Why not when it is viable on its own, currently the law in many states? Why not greater than a mere six weeks out, when a heartbeat can be detected. I’m not a doctor, but I understand that the circulatory systems of these early-stage fetuses are dependent upon the mother’s heart.
Why is it a heartbeat at all? Frogs have heartbeats—it is not the heart where sentience exists—it is in brains (and, if one is inclined to believe in it, the soul). And no one knows when a soul is imparted to the nascent life. Is it when the heart beats? When there’s brain activity? When conceived? None of us knows with certainty when a soul is present, much less whether such a thing even exists. But we view the end of life and the cessation of brain activity. Ought this not be the best measure for life’s beginning?
Many pregnancies spontaneously abort early-on. Why cling to this fairly random length of time, during which the fetus is not only not viable but also prone to failure anyway? Neither science nor theology can defend six weeks. And if there are many spontaneous abortions, are we as a society charged with saving lives also responsible to do what we can to ensure that these lives can continue?
It seems to me that it’s binary. Either it’s a person or it isn’t. If it is, then how can it be intellectually or morally defensible to allow for abortions in cases of rape or incest? And what procedure will be employed to determine rape or incest? Apparently, if a crime is committed in the course of one’s conception, that nascent life is not entitled to life (in effect, it is the same “murder” of a defenseless person); whereas others, conceived consensually, are entitled to live?
Many of the same people who are against abortion rights also are against contraception. This seems odd to me and, while some churches may consider contraception a sin, that’s a church position and not the State’s determination. If we really consider abortion to be so bad, then why are so many standing in the way of sex education and distribution of prophylactics to teens and preteens? Isn’t it the lesser of two “evils”? Those who oppose abortion rights offer few alternatives. Some even think masturbation is immoral (someone better call Alexander Portnoy and STAT!)
How will we ensure compliance with a law preventing abortion? Will we strap women to gurneys to ensure they make it to term? Will husbands and partners who help them travel to another state to secure an abortion be abetting a crime? How exactly will we address people using whatever means they can to control their own lives?
HUMAN NATURE
What is lost in the argument of when life begins (and no one really knows), there is a practical argument against the restriction of abortions, and that is human nature. Human nature is at play here in several ways, none of which can be stemmed by the mere passage of a law:
Young people are going to discover sex. Really; it still happens. I’m not too old to recall the joy in discovering this quite enjoyable activity. And it’s the sort of thing that, experiencing it once, argues in favor of repetition. Most of us coming from homes with attentive parents were warned of the need to avoid pregnancy. Others, often from underprivileged backgrounds, without easy access to contraception, or completely unaware of the consequences, may not have the means to “protect themselves.” But trust me here, whether they know of ways to avoid conception or not (and whether or not such methods work), they’re still going to engage in sex. Shocking, I know…
People won’t act quickly and prior to the six week maximum in some states. I am told that most women who miss their period once will just take it in stride. Few will run to the doctor to check if they are pregnant. By the time they reach the second missed period, they are outside the arbitrary six week period and, in those states with such laws, will be relegated to service to the state in incubating the unwanted fetus to maturity.
Another way human nature is at play is that people with means will find a way. Those who must find a state that permits abortion will do so. And if the anti-abortion right is successful in making abortion illegal throughout the country, they will find a way to go to another country.
Those without a means will find a way. And this is perhaps saddest of all. My father was a physician in New York before moving to California to become a pediatrician. He was pro-choice not only for reasons of individual rights or women’s power over their own bodies. He regaled me with stories of young women coming into his office bleeding out or having torn their uterus through failed “back alley” abortions. Many would no longer be able to conceive. Some people who don’t want a baby will exercise whatever means available to them—legal or illegal—safe or dangerous—in order to terminate a pregnancy. Their lives (and deaths) will be on our hands.
LEGAL ISSUES
A fair case can be made that Roe was wrongly decided. A “right” was found as part of the penumbra of enumerated rights—a previously unheard of doctrine. But it should matter now, as the right is a way of life and expectation. It has been 50 years since Roe and it’s been the law of the land. It, and the principles behind it, is supported by the vast majority of Americans.
This reported opinion apparently is willing to say, “current practices be damned” and “stare decisis be damned.” They know what’s best and they think throwing the issue to the states is the way to go. But states come in all shape and size and, just as the Civil Rights Voting Act was in place to protect minorities, particularly Black Americans, from the actions of the State to deny them of their rights, there is an argument that some States cannot be counted on to adequately protect the rights of women.
If allowed to stand, the Supreme Court’s ruling will create a gulag of oppressive states denying women’s right to choose, sandwiched between regions where it is permitted. And if those states rule that going out of state to obtain an abortion is a crime, then they will criminalize women and their facilitators. The results of this will be dark.
NOW IT’S TIME FOR A NATIONAL LAW?
But this is not necessarily “as bad as it can get.” The anti-choice advocates have been arguing for States’ rights for decades—that each state should get to decide whether abortions are legal, and under what circumstances, within their borders. Until now. These same people plan on introducing federal legislation to restrict abortion rights nation-wide. Apparently, “leaving it to the states” was the way to go when there appeared to be a national consensus and a court decision made abortions legal throughout the country. But now they want the states to be restricted by preemptive national legislation.
This feels a lot like the “McConnell rule” on Supreme Court hearings. You can’t have a Supreme Court nominee considered by the president in the last year of the president’s term UNLESS it’s “my party’s” president, in which case the rule is more flexible. The era of power politics, untethered by precedent, facts, decency, or even one’s own words.
THE COURT
I love the law. I believe it is what creates rules for people—and societies—to be their better selves. I have studied the law and legal history and have found joy in reading of the progression of freedoms confirmed by the courts. I have felt the courts have largely been apolitical and above the fray. Even the highly charged Bush v. Gore had its rationale. With the advent of the Federalist Society’s program to reshape the judiciary, the McConnell rule, and the empaneling of Justices with clear ideological objectives, I no longer feel this way. The federal judiciary, once the one institution “beyond the fray” is not in the muck with the rest of the politicians.
Sure, courts are supposed to interpret law and resolve constitutional differences, but they are to do so in light of the public sentiment of the time. If one is to believe the upcoming ruling, if the Civil War Amendments (the 13th, 14th and 15th) had not been passed by Congress, we would be left with only the written words of the Founders. That would mean all Black people would be property and wouldn’t be allowed to vote. It would mean the federal judiciary could not require the states to adhere to equal protection. Let’s just ponder that thought experiment for a moment. The “originalists” would stand idly by because the words of the Founders were not superseded by legislative action.
The way the conservatives look at the Constitution is “literally” (as they perceive it). But perhaps a better way to think about this is contextually—not just the context when the words were written but the context of the ideas in light of current facts.
The Founders came from different religious traditions. Many were deists (a belief in a supreme being but outside of organized religion). Some toyed with atheism. Few were ideologues in the modern sense. They had a libertarian bent and a notion that the best government is one that left people alone, free to choose their own destiny. They were, in many ways, “laissez faire,” not only with regard to commerce but to individual rights as well.
The “right way,” to me, for the court to look at abortion and the freedom to choose is to consider what the Founders wrote and did and apply that mind set to the current circumstances. The Constitution has a history of being read in light of new science and new practices. The Commerce Clause was not originally intended to address trains and planes, but it was “massaged” into what it is today (overreach and all!). But that’s not what the current majority wants. They have clear ideas of what they want and they hide behind the absence of words in the Constitution—rather than using the Constitution and the Framers’ intent as guidance for the world in which we live.
These are dark days and I fear they may be getting worse. Dana Gordon, you were right. Roe will be history soon. I didn’t believe it when you predicted it. I believe now that the battle only now has begun.
Have a good day,
Glenn
From the archives: