I have written blogs about the abortion issue in many of its aspects since 2009. Anti-abortionism as an idolatry elevating the unborn to a status and endowments—innocent, safeguarded, provisioned, without qualification or limitation—not enjoyed by the born. The political principles and strategies of both sides of the abortion issue. Blackmun’s Roe v. Wade decision. Why? Because I am passionate about a woman’s right to make decisions about her life, body, and pregnancy without federal or state government interference or limitation. A government with legal sanction to control a woman’s body can acquire legal sanction to control anyone’s body—take that, you oxymoronic small-government, anti-abortion types.
Prospects for a constitutionally recognized and honestly realizable right to abortion are dim for two reasons. One, incessant opposition by about one-fourth of Americans. Two, rigidity of righteousness by its advocates. For years, the Supreme Court has made decisions nibbling away at the actual exercise of the right—fair warnings about future decisions. While fighting a rear-guard action to defend Plan A, Roe v. Wade, advocates should have developed Plan B, a contingency. Instead, they have preferred to protest in denial of the increasingly likely gutting or killing of that constitutional right—SCOTUS wouldn’t, shouldn’t—, and indulge grief and anger in the event. So here they are.
Blackmun’s opinion in the Roe v. Wade decision gave advocates of a constitutional abortion right which they wanted. Smug with a SCOTUS win, they did not read, or read carefully, the decision in light of the widespread opinion that it is poorly reasoned and was wrongly decided. I have yet to meet someone who has read it. At the time and for years after, I did not; I was busy starting and maintaining a family and career. But when I turned to the subject after I retired, I read Blackmun’s opinion and was stunned by its utter illogic, which advocates should have known would raise serious issues.
Blackmun launches his substantive discussion with a long survey of culturally and historically diverse moral, philosophical, and religious beliefs about abortion, especially those on the beginning of life. Noting that moralists, philosophers, and theologians having failed to define the beginning of life, he says that the Court is neither qualified nor asked to do so. Fine: however, having surveyed such beliefs, he should have first noted that the definition of when life begins is a religious belief; he should have then inferred that it and its associated practices are protected by the First Amendment—free exercise of religion and freedom from the establishment of religion. Only his inability to see, much less connect, the dots makes possible his pivot from religion to science.
Having dismissed religion as the paramount consideration, Blackmun turns to science for an answer. The perversity of this move is incomprehensible unless he thought that science could resolve the issue. If so, he was an ignoramus and a fool. First, few expect science to decide moral, philosophical, or religious issues; fewer would accept its results as decisive. Science can stipulate a definition of life or its beginning for its purposes but cannot do so for purposes in other fields. Second, given scientific advances, no one can expect science-based decisions to ensure long-term legal stability. For example, between 1929 and 1967, independent viability changed from the 28th to the 24th week of gestation, respectively. Whatever the earliest limit of viability, any earlier limit would be arbitrary. Third, and most important, any stipulation, viability or not, would favor some religious beliefs and practices over others—in itself, an establishment of religion.
Blackmun has company when it comes missing or forgetting these points about the centrality of religion in this issue and the irrelevance of science to it. I believe that most advocates of an abortion right give little thought to religion and know little about science. When I talked with Linda Greenhouse, Yale Law School professor and New York Times columnist, about my position some years ago, she recollected that Justice John Paul Stevens had made a similar argument, ignored by his fellow justices, at the time.
Advocates might see value in attending more to religion and science. With a SCOTUS majority making many decisions favorable to religion, advocates of an abortion right should adopt a new approach. Strategically sensible would be playing to the Court’s bias by arguing on religious grounds that the First Amendment protects abortion as an exercise of religion free from federal or state government interference. Rhetorically sensible would be implying that advocates of an abortion right are as religious as those opposed to it and, moreover, unwilling to sully religion by putting it in thrall to science. So, take that, you Christian fundamentalist adulterators of religion with science.
A word on a peripheral but inflamed topic, stare decisis, with controversy confused on both sides. The Left regards this judicial principle as immutable; the Right invokes instances of major reversals of precedents to imply that the Left is hypocritical. In those cases, it says, the Left got its way and did not complain; it complains only now, when the Right looks to get its way. In this controversy, the Left is dumb, but the Right is dumber.
Anyone who has seen On the Basis of Sex saw Ruth Bader Ginsberg’s final argument urging the appellate court to overturn precedent. What matters in cases challenging precedent is the legal reasoning for reaffirming or overruling it. In all of the reversals cited by the Right, the legal reasoning, partly in response to changed circumstances, partly in response to redefined terminology (e.g., “separate” cannot be “equal”), is an expansion of the rights of the people in accordance with fundamental American values, like equality under the law. All of these decisions have pared away restrictions on “unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
In this historical context, a SCOTUS reversal or disempowering of Roe v. Wade would be astonishing and appalling. First, but least of all, oral questions from the conservative justices demonstrated the lack of cogency of any rationale to reverse or disempower that decision. Second, a Roberts court decision would undo what previous courts defined and maintained as a constitutional right. No SCOTUS has ever arrogated such authority or attempted such a decision. Third, it would not expand, but contract, the scope of those “unalienable Rights,” which, among others, in association with the right to one’s life, surely includes the right to control one’s own body. All in all, if a precedent defining a constitutional right can be reversed on flimsy grounds to diminish individual rights, no law is safe, none is settled, and the court can comply with an autocrat’s command.
No comments:
Post a Comment