Abortion returns to Supreme Court

supreme_court_buildingThe U.S. Supreme Court announced today it will hear a case involving a restrictive Texas abortion law, which women’s advocates fear may portend reversal of Roe v. Wade. This is the law that Wendy Davis, then a Democratic state senator, and later a defeated candidate for Texas governor, famously filibustered (in vain, as it turned out).

In the 45 years since the Roe decision, the increasingly conservative Court has skirted overturning it, but has chipped away at it by upholding progressively more restrictive state anti-abortion laws, encouraging pro-life Republican legislators to steadily tighten the noose around legal abortion’s neck. This time, Ilyse Hogue, the president of NARAL Pro-Choice America, says, “This case represents the greatest threat to women’s reproductive freedom since the Supreme Court decided Roe vs. Wade over 40 years ago.”

The portents aren’t encouraging. The Supreme Court has already intervened on behalf of this specific law on two occasions, upholding its onerous provisions both times, by issuing stays of lower court rulings overturning portions of the law. That seems to signal that the Court will, at a minimum, uphold the Texas restrictions, which have had the effect of shutting down two-thirds of that state’s abortion providers.

The fear is the Court, which now has a five-Justice conservative majority, might decide to toss Roe v. Wade altogether. It could, of course, choose to uphold the Texas law on grounds its serves a valid purpose of increasing the safety of abortions performed in that state, and that’s a sufficient justification to offset its restricting affect on access to abortions, which under Roe are a constitutional right. Traditionally, the Court has opted for restraint in most of its decisions, preferring to avoid major constitutional rulings when a case can be decided some other way. This is especially true of rulings that would require overturning prior precedent. But the Court has done that on occasion, the most famous example being Plessy v. Ferguson, an 1896 case that upheld the constitutionality of racial segregation, which was overturned by Brown v. Board of Education in 1954, which in turn paved the way for the Civil Rights struggles of the 1960s.

Many pro-lifers feel Roe v. Wade is a moral equivalent of Plessy v. Ferguson, similarly deserving of being treated as a mistake, and have been waiting for years for the Supreme Court re-decide it in their favor. Over the last 40-odd years, there probably has been no more intense issue underlying presidential elections than getting someone in the White House who will appoint Justices who will either protect Roe v. Wade (if you’re a pro-choice Democrat) or tear it down (if you’re a pro-life Republican). There probably is no more divisive issue in American politics, and getting five Justices onto the Court willing to throw out Roe v. Wade has been the holy grail of American politics for as long as anyone younger than middle-aged has been alive — a goal that so far has eluded the political right.

(Abortion politics are strange. Over the years, the Republican Party has exploited the issue for electoral advantage, and collected a large stable of single-issue voters motivated by this issue alone. This is probably the most effective single means by which the GOP has gotten large numbers of middle and lower income voters to support candidates and policies that are blatantly against their economic self-interest. At the same time, over long periods, the GOP has been so ineffective at delivering on its promises to eviscerate Roe v. Wade that one is sorely tempted to wonder if the party really wants it overturned. Without Roe v. Wade, they would lose a major impetus for both campaign donations and votes. This particular demon has been very productive for the GOP.)

Most Americans probably aren’t aware of this, but Roe v. Wade is more than an abortion decision. It didn’t just make abortion a constitutional right. It’s also the case that enshrined privacy as a constitutional right with finality. (Drawing heavily on the forerunner case of Griswold v. Connecticut, which struck down a state law outlawing contraceptives.) Thus, if Roe v. Wade is overturned, the privacy right could be in jeopardy, too. This may be one of the reasons why even conservative Justices have been reluctant to produce an outright overturn of Roe v. Wade, although in my view, the abortion right probably could be excised while leaving the privacy right intact.

The actual Roe v. Wade opinion is written in two major parts. The first addresses the privacy right question. Nowhere, not even in the Bill of Rights, does the Constitution make a single explicit reference to a personal right of privacy. The privacy right was created by the Supreme Court in 1970 in the Roe v. Wade opinion. It didn’t come out of thin air; it’s what lawyers call a right that exists by “necessary implication,” i.e., even though it’s not expressly stated, it has to exist in order for other explicit constitutional provisions to work properly. The privacy portion of the opinion is well reasoned, very solid, strongly supported by precedent, and logically hangs together very well; and it shouldn’t be in jeopardy no matter what the Court eventually does with the abortion issue.

The abortion portion of the decision is much dicier. After extensively reviewing the question from the perspectives of science, religion, social practice, and so on, the Court announced that nobody could figure out when “human life” begins, and it couldn’t either. From there, it groped its way to a conclusion that a fetus isn’t a human being until it becomes viable, or something like that, and therefore aborting a fetus isn’t murder, or something along those lines. Logic supports this reasoning to a point. Pro-choice advocates point out that a fertilized egg doesn’t look like a person, and can’t think or feel, it’s only organic tissue (like, say, a fingernail clipping — that’s my analogy, not theirs). As the fetus grows, and progresses closer to term, and its heart begins beating and it starts to move around inside the womb, it resembles a human being more and more. At some point, any rational person must concede, it is a human being. The problem is defining the exact moment when it transforms from tissue to person. It’s impossible, nobody can do that, and this is where all the problems and conflicts arise.

Intelligent people who have thought long and hard about this question come up with answers that are all over the map. Often, how people answer this question depends on what particular dogma they’re falling back on, whether it’s biology, philosophy, or religion. Some religious people believe its a sin to prevent conception, even before fertilization occurs. Some pro-choice advocates would insist on having a right to an abortion right up to the moment of birth, including the grisly “partial birth” abortions that abortion foes find so photogenic for their propaganda purposes. The only thing that everyone seems to agree on is that once the fetus is completely out of its mother’s body and breathing on its own, it’s now a “baby” and killing it would constitute murder. Every state’s laws treat it that way.

It is this ambiguity that creates the possibility of a great and irreconcilable political conflict, because no one can say authoritatively that anyone’s answer to the question is right. So the natural and obvious response is for all the factions to try imposing their viewpoint on society as a whole through political and judicial coercion. This is not a situation where you can resolve the conflict by saying, “we’ll let you do things your way, if you let us do things our way.” People opposed to abortion aren’t going to have abortions (except some of them will; we know there’s a lot of hypocrisy out there); their objective is preventing other people from having abortions, and that is the issue. For pro-choice advocates, freedom of choice is the issue. The conflict over abortion is all about some people wanting to take away other people’s freedom, just as the civil rights issues were.

I’m not personally a big fan of legalized abortion. At a personal level, I’m troubled by abortion, on moral and religious grounds. As a lawyer, I have a strong bias toward the law protecting the weak from the strong, and no one is weaker and more vulnerable than an unborn child. So there’s a part of me that instinctively wants to extend legal protection to the unborn, even in conflict with its mother’s wishes. (We don’t let parents kill their children, do we?)

But we’re discussing my personal values here, and what right to I have to impose those on strangers? Who am I to tell others how to live? I’ve decided the moral question is one that everyone has to answer for themselves. This is another way of saying I’m reluctant to resort to legal intervention to override their wishes with my preferences. This puts me in the pro-choice camp, albeit reluctantly and shakily. For me, the ideal solution is if abortions are legal, and no one chooses to have one.

As a lawyer, my biggest worry is that a conservative Supreme Court majority bent on retracting the constitutional right of abortion might strike down the constitutional right of privacy with it, throwing out the baby with the bath water as it were. As a reluctant pro-choicer, I deem the abortion right as more expendable than the privacy right; I won’t move to Scandinavia if the Court takes it away. And as I said above, I think the abortion right can be rescinded without compromising the privacy right. But if that’s what the current batch of conservative Justices are up to, I’m not at all sure I trust them to distinguish between these rights and preserve one while destroying the other — splitting the baby so to speak.  (I’m aware there’s a couple of puns in this paragraph, and they’re arguably sick in a way, but I’m certainly not admitting they’re intentional. For convenience, let’s consider them linguistic accidents. After all, I didn’t invent the questionable phrases, they’ve been in use for a long time, they’re firmly embedded in our language and culture, and I merely heard them from others in the course of common usage.)

So when this decision comes down from the high court bench next June, I will mainly be looking to see if we still have a constitutional right of privacy protecting us from the people who, if they could, send the cops to search our bedrooms for condoms (that was Griswold v. Connecticut; look it up). But have in mind another problem that will come up if the Supreme Court overturns the abortion portion of Roe v. Wade, a practice one, which is this: What if, instead of handing fetuses a constitutional right to life, the Court hands states free reign to make abortion illegal within their geographical jurisdictions? This is by far the likeliest form that an overturn would take, so it’s not an idle question.

The result would be chaos on several levels. First, assuming that some states ban abortions, while other states permit them, you’re going to have abortion trafficking across state lines. What if states try to make it illegal for their residents to go to another state for a legal abortion? But the largest problem is that instead of the abortion issue being contested in the courts, which is where it has been confined until now, it will be fought out in all 50 state legislatures, one at a time, and these fights are guaranteed to be prolonged and bitter. State-level politics will be consumed by abortion fights, and outcomes of state-level elections will hang on candidates’ abortion positions. Legislative sessions will be tired up by abortion debates, and nothing else will get done. The people’s essential work — funding schools and roads, passing laws — will be ignored as legislators fight over abortion. The overall social and political environment will resemble that created by slavery in the years leading up to the Civil War. The abortion issue is so poisonous that I think the Supreme Court, whatever it does, should not leave it up to the states. It should either leave mothers’ constitutional right to abortion intact, or give fetuses a constitutional right to life, but whatever they do, they should not leave this issue for state legislatures to decide.

That’s my opinion.



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