The fur is flying everywhere after the leaked draft of a Supreme Court decision overturning Roe v. Wade. You can find any number of takes in the mainstream media: the NYT, for example, has the majority of its front-e-page editorials decrying the court’s decision. As a strong advocate of women’s choice, I too am appalled, but not all that surprised, as I’ve thought for a while that Roe was toast.
What is surprising are the number of people who are surprised. Here is one example from the NYT’s ongoing coverage:
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Senator Susan Collins of Maine, one of the few Republican supporters of abortion rights in Congress, expressed anger at Justices Neil M. Gorsuch and Brett M. Kavanaugh, saying their reported support for the draft ruling “would be completely inconsistent” with what they had told her about their views of Roe as settled law.
Have people not realized that nominees for the Supreme Court always dissimulate in hearings when asked about rulings that go against their own political leanings? “I will remain objective,” they all say. This is largely independent on whether they’ve been nominated by a liberal or conservative President.
That answer is a joke, yet we all pretend to believe is. Did anybody really think that Gorsuch and Kavanaugh, much less Barrett, would vote to uphold Roe v. Wade? I mean, seriously? Are prospective Justices supposed to tell the truth in these hearings and say what they really think? No—they’re seeking a seat on the Court, and will say what is necessary. to achieve one.
Is it possible that a justice could be objective and still come to the conclusion that Roe should be overturned?
Yes, but the problems is that these justices lied about their opinions.
Precisely. Unfortunately it falls into the category of excuses like ‘they were only following orders’ or ‘they had to lie to get the job’ that show that there are much deeper systemic problems that are not being addressed. From what I understand, people on all sides recognize the problem – but only express dissatisfaction when the prevailing court opinion is not in their favor. Each side still keeps trying to stack the deck. And nothing changes.
The sides are not remotely equivalent.
Exactly. Thank you.
Several dozens (hundreds?) of people have had their reliance on that defence terminated by the click of the gallows floor, and the twang of the rope. I am as adverse to this applying to convicted multiple-murderers as I am to judges. The two cases are equivalent.
Yes, this one has had as much success as the previous one – though I’ve only heard it myself in cases of people lying about their qualifications to get a job (when the actual qualification – belonging to the right religious club – was actually held by the applicant). Typical penalty being the civil one of being sacked, losing pension rights, and sometimes subsequent criminal prosecution. Again, I do see the similarity of the cases, but the complication of being unable to sack these judges leaves the options of – the gallows; being locked into a room with the revolver and a single bullet; or resignation on grounds of age, infirmity, mendacity or spending more time with one’s mistresses (what’s the male equivalent? “rent boy”, gigolo, or “sugar son”?). Again, some desirable outcomes.
One really needs at least a tripartite game system, to keep the “cheaters” (in game theory terms) under control. Unfortunately, game theory addresses “strategic interactions among rational agents.“, so it’s applicability to humans is dubious.
Great post, Gravel Inspector, thank you!
I would still argue that their behavior definitely is definitely a strategic behavior, and they are acting rationally to that end, even if their core belief system is irrational. All sides involved are playing rationally in their own perceived best interest or in the interest of their tribe, as they choose to define it. In the end, they end up adopting similar strategies to game every system they can find.
I think one of the defining characteristics of the Internet age is that every ideological group has access to the lessons of game theory and is trying to optimize their position on that basis.
The problem comes when people expect the Supreme Court to resolve issues that are not addressed by the Constitution. The Constitution says: “nor shall any State deprive any person of life, liberty, or property, without due process of law…” Can somebody explain to me how that guarantees a right to abortion? Once we say that it does, we’re really saying that it can mean anything, and that’s what people demand.
People frequently miss how limiting the phrase ‘without due process of law‘ actually is. If it were not there, there would be no death penalty or eminent domain seizures. However, with due process, either legislation or judicial decision, state governments are still empowered to deprive people of life, liberty, and property. Sigh.
Why “Sigh”? How would a state,—any expression of the state, not just a U.S. state,—enforce any of its laws, even ones you agree with, if it couldn’t, after applying due process, fine lawbreakers of their property, execute them, or send them to prison? That would only leave flogging as allowable punishment. But you wouldn’t be able to seize the miscreant to the whipping post as that would be deprivation of liberty. The master-at-arms would have to chase him through the streets, trying for an opportunistic whack or two with the cat-o’-nine-tails whenever he got close enough.
Due process means only that the tyrant can’t send his goons to seize your property or throw you into a cell without convicting you of some defined crime under the same process he applies to everyone else: habeas corpus, right to hear the charge and defend it, a judge to oversee for fairness and determine guilt independent of the prosecutor. The laws and punishment can still be severe and merciless under due process, just not arbitrarily imposed extra-judicially on, say, political enemies.
We don’t have eminent domain in Canada (or the death penalty) but for public expropriation and rights of way for infrastructure like pipelines there is a due process. It’s not arbitrary. You can even fight it for more money, rarely successfully. Civil forfeiture is one of our grey areas where due process does look a little shaky. The judge says, “Well, the jury found you not guilty of drug trafficking but I’m seizing your house and the 300 grand we found in it, just to be on the safe side.”
The 14th’s due process and equal protection clauses together have been interpreted (for at least the last 70 or so years) to give you a right to privacy. So for instance, Loving is based on those: the state cannot outlaw mixed race marriages because that violates the 14th amendment’s right to personal liberty. If conservatives want to say there is no general right to privacy, and any conduct that you have a right to must be specifically enumerated in the 14th, then marriage rights and lots of other rights also get thrown out the window, since it doesn’t actually enumerate any specific conduct. Does the fact that it enumerates no specific conduct mean it does nothing? That they passed it for shats and giggles? Clearly no, right? They must have thought that articulating the general principle and letting further courts apply it to specific cases was a reasonable approach, right?
Oh, and as a small aside, those conservatives are also completely ignoring the 9th amendment. Yes Virginia, there *is* a constitutional principle that says just because a right isn’t enumerated doesn’t mean you don’t have it.
Back to ‘life, liberty, and property’ = a right to general personal privacy. Abortion restrictions very clearly fit within a right to privacy. Probably even moreso than marriage, because they deny the woman a personal liberty having to do with the self-control of her own body.
They also deny her equal protection under law by forcing her to use her body to sustain another life – something we expressly do not force on people in any other circumstance. We don’t force blood donations to save lives. We don’t force organ donations to save lives. We don’t force bone marrow transplants or anything else like that, even when the recipient will die if they don’t get it. So equal protection would, IMO, require that we not force ‘womb donation’ on women just to save the life of a zygote. Setting aside scientific and liberal arguments against zygote personhood, we do not force any other persons to save other persons through compulsory organ donation/use. Conservatives want to only force this on pregnant women, nobody else. That is not equal protection. And that point, on it’s own, should be enough.
Why does the 14th amendment protect a right to abortion but not a right to be a prostitute, or a right to work for less than the minimum wage, or a right to walk around naked in pubic?
The more a conduct depends on interaction with the larger society, the less the concept of “privacy” applies.
Okay I answered your follow on question. Can you do me the courtesy of answering one of mine in return? How do you fit “the state can force a woman to carry a zygote to term against her will” and “the state cannot force you to even lift a finger, let alone perform CPR, on someone dying at your feet” both under the umbrella of “equal protection under law.” How are those equal protection of liberty?
The more a conduct depends on interaction with the larger society, the less the concept of “privacy” applies
But the sub-minimum wage worker or prostitute accepting a job from a single person does not interact with the larger society any more than the woman getting an abortion. Furthermore, how does the gay couple strolling down the street in an amorous fashion involve less interaction with the larger society than does the exhibitionist strolling down the street naked?
“the state can force a woman to carry a zygote to term against her will”
According to the Supreme Court, use of the Equal Protection Clause “is squarely foreclosed by our precedents, which establish that a State’s regulation of abortion is not a sex-based classification and is thus not subject to the “heightened scrutiny” that applies to such classifications. The regulation of a medical procedure that only one sex can undergo does not trigger heightened constitutional scrutiny unless the regulation is a “mere pretext[] designed to effect an invidious discrimination against members of one sex or the other.””
“the state cannot force you to even lift a finger, let alone perform CPR, on someone dying at your feet”
Who says that the state cannot force a person to render assistance in an emergency? For example, 46 U.S. Code § 2304 establishes a duty to “render assistance to any individual found at sea in danger of being lost, so far as the master or individual in charge can do so without serious danger to the master’s or individual’s vessel or individuals on board.”
Further evidence that the state can compel you to render assistance:
The Quebec Civil Code, which is the old French law the British allowed to continue under Quebec Act after the Conquest of 1763, places a similar positive duty on a person, in Quebec only, to render assistance to the stricken. This not just a fossil. The Civil Code remains to this day the basis for civil procedure in Quebec, including for appeals that reach the Supreme Court of Canada, For criminal matters, the English Criminal Law prevails everywhere. Neither it nor the English Common Law impose a Good Samaritan duty outside of Quebec.
So this difference is not just local practice. It’s central to the differences between legal systems. Not directly relevant to the United States, of course, but you don’t have to look very far to find other present-day examples of positive duties.
I support abortion, but Roe was a bad ruling.
The claim that the 14th Amendment was intended to provide a right to privacy is a legal fiction, created by the Supreme Court out of nothing. The amendment was intended to grant citizenship and civil rights to freed slaves. Nobody at the time thought it granted a right to an abortion, which remained illegal throughout the US until Roe overturned all the states’ laws, or even to generalized “privacy”.
Similarly, the fact that the 9th Amendment says there exist more rights than those enumerated in the Constitution does not imply that all possible rights exist. It is referring to those rights that had been established by tradition even if they weren’t explicitly named in the Constitution. In the case of abortion, centuries of tradition had held that it was a crime.
I don’t think anybody takes the general personal privacy right seriously. It certainly isn’t consistently applied. (For example, if a woman has a personal privacy right to get an abortion, why not to use methamphetamine at home? Isn’t that also a personal, private act? Can you explain what makes one a right protected under “privacy” and another a crime? Acts can be crimes even if they are committed privately.) Roe itself says that the states have compelling interests here and can regulate abortion:
The 10th Amendment makes clear that the power to regulate these matters is the province of the states, and overturning Roe simply returns the matter to the states. If people want a national solution, Congress should pass a law. The same applies to non-traditional marriage, etc. If you want it protected under law, write a law. Laws should be created by legislators, not by court justices out of nothing but their own wish that they existed.
It’s what Loving was based on, four years before Roe. And the court at the time (’67-73) knew that there had been arguments about the 14th allowing mixed race marriages, with politicians during it’s drafting arguing that while it could be interpreted to say they must be allowed (even though marriage is not mentioned anywhere), they wouldn’t apply it that way.
So we know three things wrong with your argument above. First, that the notion of a privacy right was not in any way manufactured for Roe. It couldn’t have been – they’d come up with it years before. Second, that a broad interpretation of the 14th WAS understood at the time it was written. We know that, because it’s critics at the time complained about how the language as written would protect rights more broadly than what they wanted. Third, we know that SCOTUS’ decision to apply the 14th broadly was again not manufactured for Roe. They had chosen years before Roe the path of rejecting the political compromise of the late 1800s in favor of a more consistent, ‘it does indeed apply to things you didn’t want to apply it to’ approach, because Loving was a direct repudiation of that earlier compromise, and it was written years before Roe.
Of course, if you want to say the 14th should not stop states from criminalizing mixed race marriages either, go ahead and say so. I’m sure Justice Thomas would agree with you.
Where does Loving discuss privacy? The words “privacy”, “private”, etc. don’t appear anywhere in it. It seems squarely and explicitly based on the equal protection clause, holding that laws violate it if they criminalize behavior by one race but not another.
I can’t find any reference to the 14th Amendment being understood to be about privacy at the time it was written. The amendment explicitly mandates equal protection under the law, and rulings based on that (like Loving) seem legitimate. “Privacy” is invented. And even if it had mentioned “privacy”, it’s a further stretch to say that “privacy” implies a right to abortion (but not, say, to ingest drugs, or to view certain forms of pornography, or other private acts that are not protected as rights).
Eric, you and others have made many compelling arguments here that the Supreme Court was clearly wrong on many levels including its own moral illegitimacy to have vacated Roe (if the leak is correct) and that there absolutely surely is a Constitutionally protected right to abortion beyond the reach of state legislatures. Unfortunately the Court, not recognizing its illegitimacy or its erroneous judgement, did exactly that and so there now absolutely surely is no such right (and likely never will be)… because its opinion is the only one that counts.
The task is now political, to work for repeal in those state legislatures. Different arguments will be needed there but they all come down to nothing more erudite than, “You will lose your bid for re-election if you don’t support repeal.”
If you think Eric’s arguments are compelling, how do you answer the questions I posed to him? In other words, what is the constitutional principle that tells the judiciary that abortion is protected by the 14th amendment, but many other proposed rights are not, and how is that principle derived?
Senator Collins also pledged to limit herself to 2 terms in Senate and said she voted to acquit Trump on his first impeachment as he’d “learned his lesson.” Why should anyone trust her comments now?
Moscow Mitch wants to change the narrative to the leak rather than the decision, saying the leak threatens the “independence” of the Supreme Court, after he blocked Garland’s appointment and turned about and rushed Barrett’s.
What a bunch of hypocrites.
So who leaked? One opinion out there, and it does make sense to me, is that it came from judicial staff with pro-choice views — so presumably from the staff of justices on the left. This to get the word out early to galvanize people on the left to get out and vote.
Another possibility was that it was a clerk for a conservative judge, who wanted to tie Roberts’ hands in trying to convince either Barrett or Kavanaugh to agree to something less that outright repeal of Roe v. Wade. Regardless, it is a sad day for the idea that SCOTUS is an impartial nonpolitical body.
This would be my guess. And if we’re right, it’s just another sign of how chaotic and wreckless the Right has become.
I thought about the fact that it might be a conservative “trial balloon” – leaked to gauge public opinion, before they do something that might horribly damage the GOP.
However, the fact that this was drafted in February and is just coming to light now seems to indicate this was probably someone upset about it. The delay was probably the press ensuring it was real, and that would’ve been much quicker and easier to do if the authors of the opinion were behind the leak.
Honestly I don’t think any of the SCOTUS justices actually did the leak. I bet if they find the person, it’s a clerk or intern.
When was that gravestone erected? One week after the SCOTUS’ first clash with politicians? Or two?
It’s just as likely that it was leaked by a forced-birther staffer–as directed by his or her Justice. The American memory is short, the news cycle shorter. We might still be talking about this by the midterm elections if the decision came out in June (unlikely, but possible), but releasing it 6 months before the midterms virtually ensures that only the really cranky feminists will still be talking about it /s.
“really cranky feminists”? Like the ones who really care about women’s rights” Those women? The ones who don’t give a F about what the men in the room have to say? Or the women who are trying to impress the men?
Thank you…from the bottom of my “cranky feminist” heart ❤️
“/s” at the end of my comment was intended to denote snark. It should have occurred to me that the tag is not as universal as I thought.
I would have picked up the snark even without the /s tag, but this is a hot-button, emotional issue and often snark, sarcasm, and satire (hey, the three esses!) are missed, even when tagged, in such cases.
I’m a man and this decision (ok, draft) enrages me. I can only imagine how blindingly angry I’d be if I were a woman.
Whatever, it’ll still be forgotten nationally by all except those feminists, cranky or not, long before November. I don’t see, but I beg to be corrected, how the federal Congress can legislate in the area of abortion, which is a matter lodged in state penal/criminal codes. If the Democrats want to campaign as the National Abortion Party, they will be annihilated. So their best bet is to pretend this never happened, campaign on their record, and not let abortion become an issue nationally where it is now irrelevant. The last thing Congressional Democratic candidates need is for radical advocates of partial-birth abortion showing up at their rallies.
I would be thrilled to see pro-choice candidates in state elections win enough seats to repeal the more draconian state laws. If women (and men) really want abortion to be legal (and safe) that is where they must focus their efforts and I wish them well. There will never again in our lifetimes be a U.S. Constitutional right to abortion. The slogan, “If men could get pregnant, abortion would be a sacrament,” is no longer a helpful thing to say because, while true, it alienates more minds than it wins over. Even if you don’t think men should have any say in the matter, the law and politics say we do. You need Americans of both sexes to vote for pro-choice candidates if you want them to get elected. Advocates in state legislatures will have to learn to accept some limitations as part of the legislative horse trading, rather than going for the all-or-nothing judicial victory. There is broad bi-partisan support, according to everything I’ve read about American public opinion, for legal abortion in the first trimester, which is 13 (not 20) weeks. Beyond that it gets harder, for reasons that advocates ought to be willing to concede as understandable even if they don’t agree with them.
But I don’t think abortion is decisive to most voters anymore, “outside”, as Phil Ochs sang, “of a small circle of friends.” If voters with other priorities worry that Democrats will use majorities in state legislatures to push through CRT and mandatory affirmation therapy for trans adolescents they will without hesitation deny them the power they need to repeal abortion laws. Which was why a Constitutional protection was so attractive. But it’s gone forever. Sincerely I wish you success and I am optimistic that you’ll achieve it.
/View from up North.
This is unfortunately true, but let’s be clear: All of the conservative justices lied in their confirmation hearings. Folks like Susan Collins are now shocked?? No, “disgraced” is a better description. And what rights are next on the SCOTUS chopping block? The decision will likely be modified somewhat before formal publication in June, but the message is clear.
Well, Kavanaugh did say that Roe was “settled law” (whatever that means).
Statements like “Roe is settled law” shouldn’t give anyone comfort. It is settled law until SCOTUS unsettles it. Nominees to the court will always beg off answering questions about how they’d rule in the future. Promising never to overrule Roe would not be judicially sound either as we would want them to judge each case on its merits. The only way to guess which way a nominee will rule once elevated to the bench is to look at their past work and ask them about it.
+1
Here’s Marina Hyde’s take in The Guardian: “Through the Trumpian looking glass, forcing women to die from illegal abortions is ‘pro-life’ ” https://www.theguardian.com/commentisfree/2022/may/03/abortions-us-supreme-court-leak-women-die-pro-life
You missed an important bit.
Corollary : provision of anaesthetics during childbirth is now in doubt.
Reason : “in pain shall you bring forth children”.
Constitutional Reference : Genesis 3:16.
QED
Yes, this does mean Caesarean sections without anaesthetic.
That takes two prizes for the silliest comment on this thread and the only silly thing I have ever heard you say.
This is just the way humans behave, with rare exceptions. I’m not a fan.
After living through the last couple of years (the irrational response to the pandemic, the storming of the Capitol, the touting of alternative facts, and Putin’s invasion of Ukraine including the wanton destruction and deaths while we watch in HiDef), I am sorry to say that I have to agree with you or my head would explode. I thought we were heading in a different direction, but apparently not. So much for Michael Shermer’s The Moral Arc and Steven Pinker’s The Better Angels of Our Nature.
Yes, it had already occurred to me that Pinker will need to rewrite his book based on recent evidence, and maybe change the title.
To ‘The Devil is in the Details.’
That’s the difficulty with broad findings about the population. The Moral Arc and The Better Angels may contain a great deal of general truth but that doesn’t mean that individuals will necessarily conform to that general truth.
This is why I recommend misanthropy as the default stance of any sensible person (present company in this forum excepted from my misanthropy, of course 😉).
I agree. Exceptions will reveal themselves over time.
I can’t disagree with you. I wonder if there is a hybrid of Mencken’s line “No one in this world, so far as I know … has ever lost money by underestimating the intelligence of the great masses of the plain people” and Hanlon’s razor “never attribute to malice that which is adequately explained by stupidity.” (Whose corollary was ‘But don’t rule out malice?’)
This bit of bad news could have a silver lining. Perhaps it’s upsetting enough to push Dems to the poles, midterms and 2024.
Yikes, I hope they go to the polls instead. I don’t there are ballot boxes at the poles. 😉
Susan Collins is so naïve she shouldn’t be allowed to go to a DC subway station without adult supervision. Every time I see her on tv I can’t help but think of Aunt Clara from Bewitched.
Collins is the one, you may recall, who said she was voting to acquit Trump at his first impeachment trial because she was sure he had learned his lesson merely by being forced to undergo the ordeal of impeachment.
Sheesh, somebody should pin her family’s phone number to her coat in case she wanders off alone.
hahahah. Killer, Ken. She is so Aunt Clara. I’ll think of that every time I see her. 🙂
D.A.
NYC
I don’t think she’s naive, she’s just acting. Maine is a conservative state but which is solidly pro-choice. To win her seat, Collins touted herself as a pro-choice conservative. What she’s doing is playing both sides here. When it comes time for her reelection, she can point to her solidly republican voting record to appease the right, and say “golly gee willikers, those justices lied to me! I had no idea they would overturn Roe” to her moderate constituents.
She’s pro-choice the way Manchin is a democrat: whenever and wherever it doesn’t count.
This is the only way to make sense of her statements. Of course, human beings making sense is not an absolute requirement, but it does seem probable.
Tattoo.
On the forehead.
Harder to lose.
Though … should it be written in normal script, or mirror script, or (because it will be painful), both?
Stupid Linda Sasour is commenting (Al Jazeera) at a rally downtown here in Manhattan. That individual sells herself as an advocate for Islam and feminism AT THE SAME TIME. How does that even work, from a logic perspective? She’s mouthing off a bunch of woke-isms, naturally.
My article on campus Palestinian “allies” to be posted here soon. Should have mentioned her.
D.A.
NYC
So the issue is not that women lose control over their own bodies, which is an overwhelming Republican project, but opinions of Linda Sarsour? I think you lost a bit of perspective there.
Because in her mind-set, all male “guardians” are always “good” (for her values of “good”) and women want to be relieved of the burden of making difficult choices like, who to have sex with, how many children to have, what to think about matters outside the kitchen.
It may be a stupid argument, but if you choose the correct set of premises, the argument isn’t illogical.
Defending those premises by appeals to evidence is a different question.
Can’t believe anyone is surprised. This was a fait accompli the moment Trump was elected.
I’m pretty Susan Collins is just not very bright.
Hillary warned us…..but her emails….
It appears that it’s not really a “decision.” It’s Alito’s opinion, and they all write them. There’s nothing in there to say that the justices have voted one way or the other.
It is ostensibly the opinion for the Court — meaning that at least four other justices, constituting a majority, intend to join Alito’s opinion.
The justices hold a conference at the end of each week during which they hear oral arguments. At that conference, they take a preliminary vote, and one of the justices is assigned (either by the chief justice, if he is in the majority, or by the justice with the most seniority, if the chief is not) the duty of writing the majority opinion.
In this case, that duty was assigned to Samuel Alito (presumably by Clarence Thomas, since he would be the senior justice in the majority, inasmuch as the Chief Justice Roberts is believed not to have agreed with the result). Alito is presumably writing the opinion for himself, Thomas, Gorsuch, Kavanaugh, and Barrett. Although this lineup is not set in stone until the other justices formally join the opinion and it is released to the public, this is clearly the way the preliminary vote broke down at the conference.
That’s my understanding from what I’ve read on the matter. I would certainly give little credence to the idea that every justice would write a 90+ page opinion on a case, even a major one like this one.
Via the excellent legal scholar All Althouse
Her analysis speaks to the “reliance” factor and how it was incorrectly positioned in Roe v Wade, leading Alito to reason that stare decisis could be set aside.
https://althouse.blogspot.com/2022/05/what-courts-opinion-draft-said-about.html
I thought her argument was pretty thin special pleading: that women can drift through life “relying” on a constitutional abortion right to rescue them from pregnancy. Respect her knowledge of how the law is applied but the advocacy was weak. The comments were more incisive.
Anyway, the third strike is now in the catcher’s glove, called as such by the umpire. Doesn’t matter that Babe Ruth at bat and 50,000 enraged legal scholars in Yankee Stadium thought it was Ball Four.
To be fair, Roberts made the same vague statements about respecting precedent as the more recent appointees, and he has seemed to be taking that pledge fairly seriously; at least more so than his conservative brethren on the court.
GCM
As did Samuel Alito, the author of the draft opinion overturning Roe, at his confirmation hearings.
I recall John Roberts, showing his folksy side for the tv audience, made the risible claim during his senate judiciary committee hearings that a SCOTUS justice’s job was simply to “call balls and strikes.” Hell, SCOTUS doesn’t just act as an umpire; it also serves as baseball’s rules committee — raising and lowering the pitcher’s mound, shrinking or expanding the strike zone, or repealing the infield fly rule.
And sometimes — as when Alito’s draft opinion is issued as the opinion of the Court this June — it can even abandon a half-century of precedent by changing the number of innings in the game or the number of outs per inning.
No one is really surprised that Susan Collins is pretending she is surprised and angry, are they? I doubt that she is quite as stupid as she pretends to be.
Hard to believe Collins could be that ditzy and still find her way to the senate chamber’s women’s room.
I err to the side of pro-life, but recognise both sides have very strong arguments. I’m not religious and do accept that there are situations in which abortion is morally acceptable.
One point I’ve not seen mentioned is how the pro choice campaign clashes with the pro choice on vaccines. There is a lot of nuance here, but I see pro choicers as being of predominantly left ideology and also those who want vaccine mandates.
I get that not getting vaccinated potentially puts others at risk (but you can argue the same for the unborn child).
It just strikes me as a little hypocritical that the likes of Oprah scream about their body, their choice, whilst also insisting others vaccinate.
To be clear, I’m not an anti-vaxxer and believe those who don’t get the covid vax, or any vax for that matter, are rather dim. I’ve never been wholly onboard with the principle of mandates though.
Sorry for any typos/inconsistencies or not fully expanding my argument. I’m filling up a pretty short lunch break.
This is a crucial point, just as many invoke “free speech” only for their own speech. As you correctly note, the issue is whether anyone else is involved: with vaccines, people who can’t be vaccinated for medical reasons; with abortion, the fetus.
Note that it cuts both ways: those who oppose vaccine mandates because of autonomy are often anti-abortion.
The correct strategy would be to counter the “abortion is murder” argument, which is relatively easy. Instead, by claiming that it is a my-body-my-choice issue (which, however, some of the same people don’t think applies to prostitution or pornography), liberals have lost the battle (not being able to define a woman doesn’t help either). Even if one disagrees with a position, it is not productive to claim that the other side believes something it doesn’t, not the least because that will never convince anyone. Also, the claim that abortion should be allowed at any stage for any reason doesn’t help. (It is then difficult to distinguish it from infanticide, which some claim should be allowed as well, just as some abortion opponents claim that there is no difference, but from the other point of view).
The term pro-choice implies that the other side is anti-choice. No. Most really believe abortion is murder, which is trumped by nothing except perhaps the life of the mother or another baby in the womb, so choice is irrelevant, just as it is irrelevant for other things which are illegal. Similarly, pro-life implies that the other side is anti-life. Most are not, they just disagree that a human life is involved.
What I really don’t understand are those who criticize laws making no exception for rape or incest as particularly evil. Actually, it is only logical if one believes that abortion is murder. Such a position implies that there is a logically coherent position which outlaws abortion except in such cases, but no-one seems to actually advocate that.
Now that it has been settled for all time (assuming that the leak is true) that there is no constitutional right to abortion in the United States, it comes down to the state legislatures. The Mississippi Gestational Age Act allows abortion for any reason up to 15 weeks. After that it is permitted for medical emergency or severe fetal defects but not for rape or incest. With Roe gone, the law can be enforced.
Given that there is no constitutional right to something more liberal, what, exactly, in this law is so hard to live with? Is it just that it exists at all? This is Mississippi, remember. If the religious Right was as powerful as you fear, wouldn’t they have succeeded in passing something even more draconian? Like a heartbeat law? If a woman is raped, is it really going to take her 3+ months to decide to get rid of the rapist’s baby? Incest is a hard one but you can’t please everyone in politics. Accepting that there will be some medical tourism may have been the best compromise for these pathetically awful situations. The state legislatures of old men have no intention of getting their laws off women’s bodies unless it becomes politically expedient to get out of the abortion legislation business altogether (as Canada’s Parliament did when our law was struck down in Morgantaler. Dr. Morgantaler had actually gone to prison for admitting he was doing abortions. My theory is that his personal courage inspired our Supreme Court to find a way to spring him, and benefit women in the bargain.)
My prediction, which is mine, is that the Mississippi law will become the model abortion law for states that want to have one. Hardly any abortions in Canada, which has no abortion law at all, are done after first trimester (13 weeks). A Mississippi law in Canada would not change what is actually done here!
Nor would it change so much what is done here. According to the CDC, 93% of US abortions occur at or before 13 weeks’ gestation, let alone 15 weeks, so the effect will be minor and likely in line with Americans’ views overall. (Most Americans want abortion to be available with some restrictions.)