The leak of the Alito draft opinion in May this year accelerated the inevitable strident debate on the legal treatment of abortion in this country. It was a dress rehearsal for what we are seeing now, but the leak didn’t change anything and the opinion finally released last week got some things right and some things wrong.
What it got right was process and structure. What it got wrong was the impact on millions of people.
The legal status of abortion in the US has been set for almost fifty years by a court decision that had to stretch to find constitutional justification for immunizing women for the terminating a pregnancy. It preempted state regulation of abortion prior to fetal viability.
The substance of Roe—the line-drawing and moral balance it struck—make a great deal of sense to me (and, apparently, to the majority of Americans). The thought that the government should regulate a person’s control of their own body (in the absence of a) other criminal activity or b) harm to another person) seems a direct application of the core principle of personal liberty on which our country and most other modern liberal democracies are founded.
At the same time, the thought that the government should allow the death of a fetus is also deeply troubling. Of course there are important issues of viability and “personhood” here. They are further complicated by the advances of medical science that has been bringing forward the date of fetal viability.
So, we have two sensible, plausible principles in the abstract that run directly into each other. It’s hard to say there is a plain, ethical “right answer.”
This clash of principles is fundamentally complicated by the sex-based difference in who writes and who is affected by such regulations. If both men and women got pregnant, then the tensions noted above would still be present; but sex differences inevitably skew everyone’s analysis. In fact, millennia of patriarchy have led to laws written almost entirely by men and broader social values also articulated almost entirely by men. While this has begun to change over the past 50-ish years, since social inertia is even more embedded than are legal provisions, our traditional worldview is still very much with us.
This is an intractable analytic problem since women will always be the only subject of abortion regulation. Simply stated, there is no objective (sex-neutral) stance on this issue. Men’s conception (so to speak) of the impact of governmental intrusion into an individual’s body can never be as organic as can women’s and it would require a concentrated empathetic effort to approximate it. Getting past the embedded social inertia of patriarchy to do so is difficult indeed.
In any event, ideally this issue of moral balancing should be a matter for legislative action rather than judicial. But even back in the 1970s, the politics of abortion were fraught (although placid by today’s standard). The Court’s intervention effectively took the issue off the political table for decades. This is not to ignore the many efforts at regulation that have been advanced, particularly in the past thirty years. But there was virtually no activity in Congress on this issue, and most people viewed the relevant governing rule to be judicial, not legislative.
I have written before about the problems that result from the disenfranchisement of the political process. It’s not healthy for the body politic. It alienates people from their democracy and makes the judiciary an easy target. It also facilitates reliance on the judiciary and made it easier for those who are “pro-choice” to not pay as much attention to legislative solutions (e.g. codifying Roe) as they might have. This decision has already incited a new activism, but it’s way too early to tell whether the response will have the necessary staying power or breadth of engagement with the wide range of challenges our society faces. Although, the other recent decisions—on the EPA’s powers (& therefore the climate disaster), various voting-related rulings, and gun control—will broaden the group who see a fundamental constitutional problem.
One problem is inertia. Existing rules—whether legislative or judicial in origin—continue along and they are difficult to change, regardless of the will of the “majority.” Our system has become sclerotic and change is difficult. The Roe Court preempted this inertia and jumped to a plausible, sensible compromise solution to the conflict of two sensible principles. “Pro-choice” forces have to come to terms with the fact that there are many in this country who would draw the line elsewhere and that overcoming the vehemence of the “pro-life” forces will be a difficult and perhaps impossible task, but it must be a political task, not a legal one: changing legislatures, changing constitutions are the work of the day (and the decade). Here, as in many issues, table-pounding is of limited use.
Another important angle is that a “conservative” court whose rationale speaks to historical traditions as the premise for law is also enamored of “originalism” in judicial interpretation. There are many problems with originalism, not least that it assumes a clarity of historical interpretation that almost all historians disavow. It is ironic that this decision and the “penumbra” it casts over dozens of heretofore seemingly well-established rights (as pointed out by the dissent) will likely be an important part of the spur for modernizing the country’s laws and constitutional principles. The more things get out of whack with reality (which is the essence of conservatism) the greater the opportunity for some sort of revolution. This decision increases the tension on the social cohesion implicit in a democratic society.
In the short term, I don’t have any simple solution to all this. I think a Roe-ish statute (a la the Collins-Murkowski bill) would make the most sense, but our politics is far too poisoned to get to a sensible compromise. But we’ve got to get to work to see what is possible. More broadly, we have to take on the fundamental test of democracy: getting enough people to care about the nature of their (our) society to write rules and build a culture which is willing to work together
What it got right was process and structure. What it got wrong was the impact on millions of people.
The legal status of abortion in the US has been set for almost fifty years by a court decision that had to stretch to find constitutional justification for immunizing women for the terminating a pregnancy. It preempted state regulation of abortion prior to fetal viability.
The substance of Roe—the line-drawing and moral balance it struck—make a great deal of sense to me (and, apparently, to the majority of Americans). The thought that the government should regulate a person’s control of their own body (in the absence of a) other criminal activity or b) harm to another person) seems a direct application of the core principle of personal liberty on which our country and most other modern liberal democracies are founded.
At the same time, the thought that the government should allow the death of a fetus is also deeply troubling. Of course there are important issues of viability and “personhood” here. They are further complicated by the advances of medical science that has been bringing forward the date of fetal viability.
So, we have two sensible, plausible principles in the abstract that run directly into each other. It’s hard to say there is a plain, ethical “right answer.”
This clash of principles is fundamentally complicated by the sex-based difference in who writes and who is affected by such regulations. If both men and women got pregnant, then the tensions noted above would still be present; but sex differences inevitably skew everyone’s analysis. In fact, millennia of patriarchy have led to laws written almost entirely by men and broader social values also articulated almost entirely by men. While this has begun to change over the past 50-ish years, since social inertia is even more embedded than are legal provisions, our traditional worldview is still very much with us.
This is an intractable analytic problem since women will always be the only subject of abortion regulation. Simply stated, there is no objective (sex-neutral) stance on this issue. Men’s conception (so to speak) of the impact of governmental intrusion into an individual’s body can never be as organic as can women’s and it would require a concentrated empathetic effort to approximate it. Getting past the embedded social inertia of patriarchy to do so is difficult indeed.
In any event, ideally this issue of moral balancing should be a matter for legislative action rather than judicial. But even back in the 1970s, the politics of abortion were fraught (although placid by today’s standard). The Court’s intervention effectively took the issue off the political table for decades. This is not to ignore the many efforts at regulation that have been advanced, particularly in the past thirty years. But there was virtually no activity in Congress on this issue, and most people viewed the relevant governing rule to be judicial, not legislative.
I have written before about the problems that result from the disenfranchisement of the political process. It’s not healthy for the body politic. It alienates people from their democracy and makes the judiciary an easy target. It also facilitates reliance on the judiciary and made it easier for those who are “pro-choice” to not pay as much attention to legislative solutions (e.g. codifying Roe) as they might have. This decision has already incited a new activism, but it’s way too early to tell whether the response will have the necessary staying power or breadth of engagement with the wide range of challenges our society faces. Although, the other recent decisions—on the EPA’s powers (& therefore the climate disaster), various voting-related rulings, and gun control—will broaden the group who see a fundamental constitutional problem.
One problem is inertia. Existing rules—whether legislative or judicial in origin—continue along and they are difficult to change, regardless of the will of the “majority.” Our system has become sclerotic and change is difficult. The Roe Court preempted this inertia and jumped to a plausible, sensible compromise solution to the conflict of two sensible principles. “Pro-choice” forces have to come to terms with the fact that there are many in this country who would draw the line elsewhere and that overcoming the vehemence of the “pro-life” forces will be a difficult and perhaps impossible task, but it must be a political task, not a legal one: changing legislatures, changing constitutions are the work of the day (and the decade). Here, as in many issues, table-pounding is of limited use.
Another important angle is that a “conservative” court whose rationale speaks to historical traditions as the premise for law is also enamored of “originalism” in judicial interpretation. There are many problems with originalism, not least that it assumes a clarity of historical interpretation that almost all historians disavow. It is ironic that this decision and the “penumbra” it casts over dozens of heretofore seemingly well-established rights (as pointed out by the dissent) will likely be an important part of the spur for modernizing the country’s laws and constitutional principles. The more things get out of whack with reality (which is the essence of conservatism) the greater the opportunity for some sort of revolution. This decision increases the tension on the social cohesion implicit in a democratic society.
In the short term, I don’t have any simple solution to all this. I think a Roe-ish statute (a la the Collins-Murkowski bill) would make the most sense, but our politics is far too poisoned to get to a sensible compromise. But we’ve got to get to work to see what is possible. More broadly, we have to take on the fundamental test of democracy: getting enough people to care about the nature of their (our) society to write rules and build a culture which is willing to work together
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