#355 Musings Beyond the Bunker (Thursday May 19)
Good morning,
There has been a lot of commentary on my comments regarding the draft Supreme Court opinion overturning Roe v. Wade. I’ve been thinking about it a lot as well and have thoughts about the many issues the opinion raises:
1. Individual rights vs. the “rights” of the fetus vs. medical, emotional and personal choices—and which rights will the courts next permit the states to circumscribe?
2. The timing of when an abortion would be permissible—who is to say when an embryo or a fetus is a “person”?
3. Conflict with religious liberty—my religion says the mother’s health is first and yours does not. Why does your religion trump mine?
4. Lack of understanding of what the Founders would have done, in light of their stated objectives—They were libertarian in many ways. Individual rights were paramount. Babies and children’s lives were not as much of a “sure thing” as they are now. The current debate might not even be comprehensible to them.
5. The effect of McConnell’s court packing—Arguably one of the greatest disasters in legislative memory and the Democrats couldn’t get up the nerve—or the message—to do something about it.
Here are just a few more random thoughts on this subject.
RIGHTS
I’m not even going to delve into the idiocy of Justice Alito’s research into our long history with abortion, as if the seventeenth century’s views of rights, religion, and science, in the context of the disenfranchisement of women at the time, has any bearing today…
The result of the opinion is that each state will have the right to demand that women pursue that state’s objective of “preserving life” at any cost, by forcing carrying a fetus to term, without regard for the woman’s intent, health or means. Some half of the states are predicted to either ban, or seriously restrict access to, abortion.
In allowing the individual states the ability to restrict abortion is to deny women sovereignty over their own bodies. These states are intervening in a woman’s quiet enjoyment of her own body under the aegis of protecting the life of the unborn fetus. The next bridge too far is whether the fetus itself is a “person” and, therefore, entitled to equal protection under the 14th amendment. If so, we will have a national prohibition on abortion. Even in those cases when a fetus reasonably can be expected to die during pregnancy or shortly after birth, the adjudication of the permissibility would take longer than the gestation period, endangering a woman’s health (and, potentially, her life). And, query, whether we can even terminate a pregnancy to save a woman’s life.
In one of my prior Musings, I invoked Bill Clinton’s construct that abortion should be legal, safe and “rare,” To be clear, in suggesting it be rare, I did not mean that the state should restrict its use, or even that the procedure would not be common. I merely meant that it should be rare within the context of being the primary form of birth control. If we provide access to contraceptives and better education, we can reduce the need for its use. As Renee Marlin Bennet points out, abortions are not, and cannot be anticipated to be, rare:
“Problem 1. Pregnancies often need to end. Your list of “exceptions” is good, as far as it goes, but I don’t think you realize how common those exceptions are, especially when taken together.
Problem 2. Access to routine medical treatment and surveillance of women having miscarriages. You may not know that abortion is also the medical procedure that is done in the case of an incomplete miscarriage. This happens all the time…
The proper treatment for some miscarriages is a Dilation and Evacuation to remove the products of conception. Do we want women to have to prove that they did not kill their fetus before they undergo treatment? Laws that get between a woman and her physician in making this decision will put every woman who has a miscarriage under surveillance, needing to prove the negative – that she did not end her own pregnancy.
Problem 3. Problems with anticipated future restrictions. Proposed prohibitions of IUDs and Plan B.”
In other words, it won’t end here and will continue with restrictions on contraception and beyond…
TIMING OF PREGNANCIES
Some states have adopted an absurd six-week window within which an abortion would be permitted. But in the meantime, they are suggesting that once a woman misses two periods, it’s too late. She must carry the fetus to term. Soon, of course, this may be moot, as it is estimated that some ¼ of the states will prohibit abortion entirely.
There is much talk of the “fetal heartbeat,” but we should remember that our humanity doesn’t come from the pumping of blood and that a fetal heartbeat is dependent upon a mother’s heartbeat.
Who is so wise as to decide when a nascent human is imbued with emotions, soul—call it what you will. We simply don’t know, but a fair guess would be once the brain has developed sufficiently. Query, whether, in light of this ruling, we will soon start looking at end of life differently. Perhaps a flat brain wave isn’t enough. Perhaps, in an effort to deny people the right to decide when they are allowed to die, these religious zealots will decide that a heartbeat is the measure of life (even if that heartbeat is sustained by a machine).
RELIGIOUS FREEDOM
Lost in all of this is the challenge to religious freedom imposed by absolute rules governing abortion. While to many evangelical Christians the life of the fetus is paramount. But to Jews and Muslims, the mother’s life is paramount. Indeed, a fetus is not considered a human being until birth. So, the evangelical minority of this country is, through restrictions on abortion, impinging upon the religious liberty of those of other faiths.
TERRIBLE MESSAGING
The Democrats are terrible about messaging and characterizations. The McConnell shenanigans should have been called what they were—legislative court packing. Upon attaining the presidency, Biden should have proposed that Congress “unpack” the damage, by expanding the Court by two additional seats. After that, the next two deaths or resignations might simply have just reduced the court’s size back to nine Justices. There is no magic to the number, which has fluctuated and is not constitutionally mandated. Merely a majority vote in both houses and a presidential signature and it’s changed. Not pursuing this was a major tactical error.
READING THE FOUNDERS’ MINDS
Justice Alito claims to apply the intent of the Founders and the precise meaning of the Constitution. Yet he doesn’t acknowledge the world as existed before. While much has been said about the absence of women from decision-making back then and the context of the Founders’ thinking and writing, what about a simple practical fact…
In the year 1800, little more than a decade after the Constitution was ratified, over 46% of children did not reach their fifth birthday. In light of this statistic, it is not unreasonable to conclude that, the Founders would have cared first for a mother’s health and mental well-being than that of a born child (forget the even higher statistic for failed pregnancies). If one is going to try to discern 18th century thinking, one should do so within the context of that time.
THE BOTTOM LINE
The court is resting its decision not on the facts, not on the implications to society. The court is basing its decision on the questionable legal reasoning in a 50-year old case. Had the grounding of the decision been in equal protection, rather than in the penumbral right of privacy, we probably wouldn’t be here. The Court could have passed on taking on this case, but they had an agenda. This case and its likely progeny will haunt us for decades.
Have a good day,
Glenn
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