Pro-life versus Pro-choice: the time of decision by the American people
“In the week since this news broke, a lot of Americans have expressed just how strongly they disagree with the path this Court is headed down. They’re disappointed; they’re stunned; they’re outraged; and, they’re right.”
-- Senator Sheldon Whitehouse (Democrat of Rhode Island), 10th May 2022.
“Well I say to those right-wingers: if you want to get the government off the backs of the American people, then understand that it is women who control their own bodies, not politicians . . . If there has ever been a time in American history when the men of this country must stand with the women of this country, this is that moment.”
-- Senator Bernie Sanders (Independent of Vermont), 10th May 2022.
B.L.U.F. (bottom-line, up-front): As Vice Presidential candidate and hero in Viêt Nam, Admiral James Stockdale, said in 1992: “I believe that a woman owns her body and what she does with it is her own business, period.”
For many years I was pro-life and believed that Roe v. Wade should be overturned.
When that reversal looked quite possible in 1992, I suddenly understood that I felt
trepidation about Roe v. Wade losing its precedence. Justice Day-O’Connor’s
thinking that the precedent should stand, subject to restrictions, matched my ambivalence. So, for
the next twenty-five years, I was a hypocrite – pro-life by feeling, but
opposed to that feeling being legislated; that is, the moral decision belonged
to the woman.
Then, in studying everyday Judaism,
I found out that Judaism holds that life starts at baby’s first breath. That
reference in ‘Genesis’ is the only explicit reference to when life begins in either the Tanakh or the Christian Bible. That
changed my mind toward pro-choice; more importantly, it reinforced what I had
known all along, that : - defining life is difficult;
- coming to a consensual definition across the larger society is impossible, at least for a foreseeable time;
- most arguments around the right-to-life
are religious in origin; and,
- religious doctrines have no place in a constitutional republic separating church and state.
Update of 20may22: John Oliver expresses the outrage of this upcoming decision in a manner that this essay fails to do; this discussion dates from 09may22.
Update of 14jul22: Senator Durbin (D-IL), Chairman of the Judiciary Committee, describes his change in thinking over time on this painful issue.
ANALYSIS of a DAFT DRAFT
In reading the Alito draft, I sure wish that the Equal Rights Amendment ('E.R.A.') had been ratified, then Justice Bader-Ginsburg's equality argument (as I understand
her reasoning) would not only be compelling, but also mandated constitutionally.
What I am noticing in Justice Alito's well written yet "snide" opinion is that he switches
abortion from the exercise of a right to privacy to an independent right itself. The right to privacy, while not stated explicitly in the Constitution, surely has deep roots in common law and the nation's history. And, of course,
there is no right to an abortion in the Constitution.
Then again, there is no right
to driving a car in the Constitution, either, but the right of free movement -- also
not mentioned explicitly -- is deemed protected by the Constitution. Consequently,
I am allowed to exercise the right to free movement by driving a car. Likewise,
the right to privacy is implied directly by Amendment IV as the right to be
secure in one's person. So, terminating a pregnancy is not a right in itself;
it is the exercise of the anterior (i.e., natural or common law) right of privacy.
(After wrongfully labelling abortion a right, Justice Alito then devotes much of the second half of this draft opinion to disqualifying terms previously cited in other cases to clarify what he incorrectly asserts to be a right. In essence, he writes that such ambiguity in terminology nullifies the unstated right for its being undefinable; such reasoning would jeopardise almost any right not stated explicitly in the Bill of Rights and certain subsequent amendments. Life is messy. Revert to the further discussion below, s.v.p.)
Citizenship: what it is and when it starts
Were women fully ingested into
the body politic as citizens under the E.R.A. -- as opposed to people not
explicitly stated as citizens who currently enjoy the theoretically revocable
privileges of, as currently extended by, the established constitutional citizenry (i.e., men) -- then
the concept of restrictions on abortion being an "invidious"
sex-based distinction would be unassailable (at least to me). Criminalizing
abortion would constrain women, and only women, from this exercise of their right to
privacy.
The problem also comes down to
the idea of viability. That doctrine admirably sought to balance the interests
of the mother (i.e., privacy) with those of the government (i.e., securing
life). The “collision course with itself” of defining viability, as described by Justice Day-O'Connor, makes sense. ln the end, however, viability is a
convenient illusion. That cuts both ways: a baby is no more viable,
without the constant care of a mother or guardian, during the first ten months outside
the womb than (s)he was on the inside.
So, even birth itself is arguably not an unambiguous definition of viability. It seems to me that the solution here is to return to the admittedly blunderbuss and pragmatic trimester approach under Roe v. Wade. The American people, the actual parties forming and consenting to the social contract for the governance of their society, have
consistently supported this trimester based approach. After all, citizens cede certain liberties to the government under the Constitution to ensure domestic tranquillity and the guaranteed exercise of universally protected rights, stated or not.
At the end of his draft opinion, however, Justice Alito attacks the previous Casey precedent of 1992 by stating that rules (or guidelines) containing the terms like "undue", "substantial", and "unnecessary" are invalid owing to the ambiguity of these words and their pliability to public sentiments at the expense of original principles underlying, or worded into, the Constitution. Such ambiguity is true, but hardly unique to this case or to many other constitutional concerns involving 'undisparaged' rights that exist anterior to, though not specified in, the Constitution.
Now, this argument is beyond the scope of my knowledge as an interested 'average joe' who is untrained in the law. Nonetheless, it seems to me that, in other areas of the law, standards of reasonable thinking (e.g., the prudent man or expert doctrines) apply and that said standards, configured to this right of privacy and its practice by women, could also apply in this instance.
In short, vagueness does not make a ruling invalid; it places a responsibility upon practitioners of rights to apply reasonable standards. Such standards ought to reflect what the underlying citizenry deems to be reasonable insofar as such sentiment does not break with a principle explicitly stated in the Constitution or long-standing case law. In minimizing his own ambiguity (e.g., the definition of life and when it begins) in the draft, Justice Alito indulges in a boring, if not exhaustive (¡Thank G-D!), review of the history of the status of abortion to refute its being a right. The argumentation fails to address two critical points.
- Many of the common law
passages involve sources like Blackstone. All of the authors are men who biologically
lack the intimate perspective of whether a foetus is a part of a woman’s body
or not. How could they know?
- Further, much of this reasoning
originates from a time of state religions, the doctrines (or, perhaps, canon
law) of which likely informed that common law as a derivative of natural law. The religious doctrine, like the common
law, was authored by men. Additionally, religious doctrine or thinking should not inform the constitutional
law of a republic that separates church and state.
Sourcing the stench on the bench One line of reasoning that sticks in my craw is Justice Alito’s use of the eighteenth
century idea of “proto-felony-murder” to attack Roe v. Wade and the liberty for abortion as
not being rooted in history and common law. A proto-felony-murder occurs when I have decided
to kill Joe. So, I hunt down Joe and find him with Barney. I pull out my gun
and shoot Barney dead by mistake because my aim stinks. I am still guilty of murder because I
intended to murder Joe but goofed with Barney.
The Alito draft basically implies
that if I perform an abortion and the mother dies, I could be guilty of murdering
the mother. Hey, wait a sec, I did not intend to murder a woman; I meant to
abort a foetus. So, for me to be guilty of murdering the woman by killing her “with
felonious intent" aimed at another implies that the foetus was already human; in fact, the
human being I had intended to murder in the first place but botched. That, to
me, is a real stretch; see pages 17-19 of the daft draft, s.v.p.
The Alito rationale returns to
the supposed impossibility of defining what life is, or when it starts, prior to birth. Thus this
difficulty in defining life, the Justice argues, precludes any action at all in a pregnancy by anyone, including the mother. That
conveniently circumscribes the definition of life exclusively to conception, ¿doesn’t it? Justice Alito writes
on page-30 of the draft:
“The Court did not claim that this broadly framed right is absolute, and no
such claim would be plausible. While individuals are certainly free to think
and to say what they wish about ‘existence,’ ‘meaning,’ the ‘universe,’
and ‘the mystery of human life,’ they are not always free to act in accordance
with those thoughts. License to act on the basis of such beliefs may correspond
to one of the many understandings of ‘liberty,’ but it is certainly not ‘ordered
liberty.’”
So, ¿just what is this ‘ordered liberty’ with respect to life?
You guessed it: what Justice Alito and four other Justices decide it is. Not
the woman burdened with an unwanted and often unsustainable pregnancy.
Alternatively, ¿who defines the “mystery of human life”, meaning life itself?
You guessed it: those same Justices of a Supreme Court arguably packed by
Senator Mitch McConnell and backed by a lot of dark money. Not the one in four
American women who take the often agonizing route of abortion.
Senator Sheldon Whitehouse shatters the sophistry of the Alito rationale, apparently purchased by dark money, with his address on the Senate floor on 10may22 in support of proposed emergency legislation to protect the free exercise by women of their right to privacy. The Senator’s seventeen minute speech is worth the time to listen to it.
The Sham of a Limited Precedent
Additionally, the Alito draft opinion subsequently states that the 'moral' dimension of Roe v. Wade -- that of the state's interest in "potential life" -- does not extend to other precedents where such a moral dimension apparently does not exist. One of these sheltered precedents turns out to be the two cases allowing people to exercise their rights to privacy through the use of contraception.
Justice Alito is disingenuous, more likely prevaricating, in writing that contraception and its use do not affect potential life. Of course it does by preventing the fertilization and hence the (unimpeded) creation of life. Senator Steven Daines (R-Montana) may have implied as much in arguing against the proposed legislation to protect the precedent established under Roe v. Wade by observing that, under the proposed law, there would be more stringent penalties against destroying sea turtle eggs than in destroying a human foetus.
Though I lack the brains to figure out a daisy-chain of rationales overturning a string of precedents, many other exercises of the right of privacy, previously and recently protected by the Supreme Court, would be open to being sanctioned, even criminalized, by similarly complicated reasoning; call such a daisy-chain a series of quantum leaps of one precedent (as an electron) from its orbit to another orbit of a nearby precedent. The first point of attack against gay marriage, for example, would argue that there is 'no explicit right' to gay marriage in the Constitution. Then would come all the analysis of legal thinking from centuries ago, clearly outdated in our own day, taken as common law.
Break the shackles of rhetoric and restrictions
And while we’re at it: let’s take care of the fear often
expressed over time of abortion becoming casually taken as just another form of
birth control. Since the 1970s, abortions per 1,000 women in a given year have fallen. In fact by more than half from the peak forty years ago with the rate still significantly below the pre-Roe v. Wade levels (such latter levels likely to be under-reported).
Not exactly the horror stories, likely myths, of the 20/30 women in Eastern
Europe (in the 1970s, under Soviet dominance), having twenty abortions by the age of thirty. The other concern, still around and occasionally articulated, that women
must own the consequences of their sexual (mis-)behavior – i.e., the sluts
deserve it – is too coarse to warrant consideration. On birth control, accessing
publicly funded birth-control is often difficult for poorer women, among whom the vast majority of unplanned pregnancies
occur.
So, here is where we find ourselves today. In the world according to the hard-right, we start by making the means to avoid unwanted pregnancies hard to attain. Then make
abortions homicide – as Louisiana is proposing – when the inevitable pregnancies
occur that are unplanned. Thus women, who may define life differently from you
or me, are coerced into carrying pregnancies to term. And one wonders why the infant mortality rate in the United States remains one of the highest in the world and the highest among developed nations. In fact, that mortality rate is a multiple those of Canada and France (2.3x); Australia and Japan (4.6x); as well as, Denmark and Spain (9.9x).
¿Why the E.R.A.?
If forced, more often perilous, parturition and motherhood are not involuntary servitude in
violation of the Thirteenth Amendment, it is almost certainly a denial of the moral
agency of women, an agency rightfully afforded to every citizen. Except that women
are not really citizens under a strict construction of the Constitution’s wording,
something not lost on those using dark
money to subsidize the use of originalism as an ideological
cover-story.
Hopefully, were the E.R.A. in place, such involuntary
servitude or impairment of autonomy would not stand due to its being a gross breach of constitutionally mandated equality of all citizens. The idea of women being
denied moral agency is not far-fetched. As Senator Bernie Sanders argued,
speaking directly after Senator Whitehouse, women could not sign a bank loan without a male co-signer until 1974, nor could they borrow from a financial institution without a male co-signer until 1988.
¿How to Beat the Dark Money?
Ideally, the Federal government would do five things:
- re-establish and extend the deadline for the E.R.A. to get it
ratified;
- ratify an amendment -- when plausible (unlikely)
-- to define life at baby's first breath, not to inform constitutionalism with Jewish scripture, but to immunize constitutional
law from religious over-reach once and for all;
- promulgate a pre-emption of state law to
guarantee both access to, and availing of, free birth control and
contraceptives as well as first trimester abortions;
- enable women preferring to carry their unexpected (or any, really) pregnancies to term to do so healthfully and to train unprepared mothers to sustain financially a successful family life for the newborn; as well as,
- explicitly leave regulation of the abortions after the first trimester to the states, contingent upon the consent of two-thirds of the women, voting in a separate referendum, in each of those states seeking regulations.
=== update 23feb24; response to Dr Heather Cox Richardson ===
Response to Alabama decision on in-vitro fertilization
Though the Alabama Supreme Court's argument sounds ridiculous, that is because it is a comical casuistry. Nevertheless, it is merely the extension of the most sophisticated pro-life argument I have encountered. It apparently removes the issue when life begins from religion and personal ethics by placing it in the field of biology. This argument runs that life begins at conception because there is a new double helix of DNA distinct from that of either parent. In vitro fertilization, as I may (mis-)understand it, involves the creation of a new double-strand of DNA, hence a new life. A very perplexing argument.
B.L.U.F. (bottom-line, up-front): in every pro-life argument I have encountered, no matter how scientific the premise or adduced evidence, the catalyzing motivation is not following the truth of science but, deep down, imposing a religious belief.
There are two arguments that I can divine against this idea. First, is a transplanted organ with its own DNA a part of the recipient's body or a life due to its differing DNA? If a part of a body, how is the foetus different? The problem with this argument is that, except for some peripheral tissue, the donated organ's DNA does not change, so the DNA is not new.
The second argument is pragmatic. A mother is pregnant and doing the laundry. She is tired and decides to carry two baskets of laundry down to the utility room in the cellar without using a banister. She falls down the stairs and endures a miscarriage. If the definition of new DNA were the standard of life beginning, would this mother not be guilty of something like negligent homicide?
More dramatically, a woman's monthly cycle is late in its completion; this lateness has occurred before. This time, however, the woman is pregnant and she does not realize it. She plays sports and later has a spontaneous miscarriage. She, too, may be guilty of negligence or some other crime. I suspect no District Attorney in his or her right mind would pursue charges like these.
¿A way out? I am pro-choice -- been a long time getting there but I am firmly there. Even in my pro-life days, I always felt that abortion restrictions could only be enforced with a concurrent (super-)majority of women of the relevant jurisdiction consenting to the restriction and arguable surrender of a right. If the Equal Rights Amendment were ratified to eliminate the Dred Scott loop-hole and integrate women fully into the body politic, this idea of John Calhoun's (¡of all people!) concurrent majorities could provide a way through the dilemma.
