Since forever, the issue of abortion has puzzled me. I know that it is contentious, to put it mildly. But I have never heard antiabortionists answer the two big questions which puzzle me: What is the problem? And what gives them the right to meddle in another’s decision about a pregnancy?
Nothing about the theory or practice of abortion is a matter of domestic stability and well-being or national security. If my neighbor has liposuction or an appendectomy to remove unwanted fat or a troublesome organ, how am I affected? If my neighbor has an abortion, does the removal of an unwanted or troublesome zygote, embryo, or fetus affect me? Shall I lose my home? Will stock markets crash? Will China attack Taiwan?
Antiabortionists assume their right to meddle because they believe that their religious convictions trump others’ constitutional rights. By definition, this belief is contrary to a constitutional democracy of a diverse populace with a secular government. To prevail, these religious autocrats seek to impose their will on all others by resorting to means which necessarily jeopardize this democracy. Through elected representatives or current candidates, almost all Republicans acting as a party, they are developing and deploying anti-democratic means enabled by this Court to implement their views on this and other issues.
Accordingly, antiabortionists, especially the six conservative Catholic or Catholic-raised Supreme Court justices, have gone or are going to extreme lengths to end the Constitutional right to abortion. Although a majority of Americans approve of abortion in cases of rape, incest, and risks to the woman’s health or life—and some in other or all cases—, a minority presses on to eliminate it as a right under state law or constitution in most or all cases. In the process, they are making problems where none exists except in their minds. Hindering, curtailing, or banning abortions has only harmful consequences, some to women, their partners, families, and friends; others to the quality of life of many Americans and possibly fatal to democracy.
The foundation of the antiabortion movement is reactionary religions which reject the modern world, science, dynamic change, and democracy. It is no coincidence that, in mid 19th century, the rise of modern medicine paralleled and may have urged two developments in religious doctrine and the law. One was a shift in Catholic doctrine. Until then, it followed Thomas Aquinas’s opinion that the unborn acquires a soul at “ensoulment,” or quickening (16 to 20 weeks into pregnancy). Since then, it has been that the unborn acquires a soul at conception. The other was the criminalization of abortion. In all states, most restrictively in states with large Catholic populations, abortion, with varying exceptions for cases of rape, incest, or risks to the woman’s health of life, became illegal.
It is no coincidence that belief in the moment of conception as the beginning of life or personhood is the only belief which Justice Samuel Alito mentions in his opinion rationalizing the Court’s reversal of Roe v. Wade and Planned Parenthood v. Casey. His exclusive mention of this belief points the motive for its decision: by denying that a right to an abortion is a Constitutional right, he supports the Catholic position that abortion murders a soul, and enables states to deny what the Court cannot. In short, the Court’s decision imposes a religious doctrine dressed in judicial robes.
Nor is it a coincidence that this Court has adopted a reactionary judicial philosophy denoted as “originalism” which rationalizes an approach reverting to the past as the touchstone of judicial decisions. Thus, it purports to interpret the Constitution as contemporaries would have understood it. It presumes that it can ascertain the precise meaning of the text by invoking interpretations of other contemporary documents. It posits that, if the text does not mention a right, it is not a Constitutional right. Thus, unmentioned things like freedom, privacy, marriage, divorce, schools, hospitals, and many lesser things, mostly social, economic, and political arrangements inconceivable in 1787, lack an explicit Constitutional reference. One of those things is abortion.
The fraudulence and falsity of the Court’s opinion in Dobbs v. Jackson Women’s Health Organization must be understood in order to show its vulnerabilities to attack in an effort to restore the right to an abortion as a Constitutional right.
The first vulnerability is Alito’s argument from the silence of the Constitution on abortion: a right not mentioned in the Constitution is not a Constitutional right. But its silence is not a denial of rights. Two amendments in the Bill of Rights explicitly provide for just such unmentioned rights. The Tenth Amendment—“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”—implies unnamed powers. Closer to the issue of abortion, the Ninth Amendment—“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”—implies unnamed rights. The Constitution does not imply that these unnamed powers or rights are limited to those which existed in 1787.
The second vulnerability is Alito’s fallback argument that any unmentioned power or right must have deep roots in American history, which the Court reads selectively to support its preferences. His argument is hypocritical pontification for, most suspiciously, Alito omitted the history of abortion as an unqualified right existing in 1787 and continuing until about four score and seven years later, or about 1865; and as a qualified right thereafter. In the 245 years after 1620, society tolerated but disapproved of abortion; it had no laws controlling or criminalizing it. From 1865 to 1973, abortions were legal in some cases but not others in all states but one (PA) in which they were illegal in all cases. Though unmentioned in the Constitution, abortion was common knowledge and practice in days of yore as an assumed right in 1787 and for decades thereafter. History does not lie; on this issue, Alito lies by omission.
Vulnerable as its decision is, the Court is likely to double-down on other issues—same-sex marriage or sexual-relations, contraception, and inter-racial marriage—for the same motive, in similar judicial trappings, with biased interpretations of documents and biased selection or rejection of historical facts. Extreme as this court is, it seems poised to render decisions which reinterpret the provisions of the Fourteenth Amendment to accord with its religious and associated conservative political predispositions. Thus, some justices have stated doubts that this amendment implies substantive due process rights. Such doubts are a-textual; section one reads:
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
In words which partly echo those of the Declaration of Independence, the Constitution asserts substantive as well as procedural rights.
On the issue of abortion, the Court’s third vulnerability is its insistence on and adherence to close textual reading, for it encounters trouble in the first three words of this amendment: “All persons born.” Although adopted in 1868, at a time of agitation about abortion, the words preclude pre-natal life. The only “persons” recognized as citizens with rights—“privileges and immunities”—are those “born” here or, obviously, elsewhere and later “naturalized” here. A close textual reading makes clear that the Fourteenth Amendment explicitly precludes the idea that life or personhood begins before birth, not to mention at conception.
The Court’s greatest vulnerability and its most discrediting position is its biased inconsistency about the Constitution in matters of religion. The first prohibitions of the First Amendment assert, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This Court selectively perceives infringements of religious expression. It saw one when a Christian coach was punished for kneeling on an athletic field and reciting prayers in compulsory huddles, regardless of the religious convictions of his players. It did not see one in Alito’s opinion stating only the Catholic and fundamentalist definition of the beginning of life at conception and ignoring the many different religious definitions of many Christians, most Muslims, and all Jews who believe that life begins at quickening or breach. The Court, prejudiced against religious beliefs different from Catholic beliefs, has transformed itself into “an establishment of religion,” a Catholic one. (Justice Harry Blackmun’s opinion was comprehensively insensitive to religious beliefs about when life begins; he dismissed them in favor of science and a stipulated legal trimestering of gestation.)
Now what? What can be done? Its ruling has shown the Court untethered from the text of the Constitution and from Court precedents. It is likely to become increasingly dogmatic in congruency with Catholic desires to undo the modern state by starting with laws mainly concerned with sex and gender issues so important to many in Catholic and fundamentalist churches.
My advice is simple. First, advocates of a woman’s Constitutional right to an abortion should de-emphasize or abandon a political position—my body, my choice—which divides opinion and reduces support. Then they should embrace the First Amendment, which unites people because it prioritizes religious freedom which is both popular and indispensable to Constitutional democracy. They should proclaim their fight for religious freedom, in the knowledge that the majority of Americans are neither Catholic nor fundamentalist, and do not want a minority to infringe upon their religious beliefs and practices.
Thus ready, they should attack the Court for betraying its obligation to defend the Constitution by ignoring the diversity of religious beliefs and practices about abortion. They should attack the Court for its hypocrisy in feigning fidelity to the law as it fashions decisions to serve the Catholic faith. They should attack the Court’s hypocrisy by exposing in lower courts its legal fictions and legal frauds. They should challenge state restrictions on abortion on religious grounds by appealing to state and federal constitutions protecting religious freedom.
As the struggle for abortion rights based on religious rights succeeds, it may empower efforts to reform other Republican infringements on democratic values and practices which have been aggravated by antiabortionists on and off the Court.
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