The leaked Roe decision: culture war or theocracy?

May 5, 2022 • 10:45 am

Jennifer Rubin, a centrist op-ed columnist for the Washington Post, just produced a piece about the leaked Supreme Court abortion decisions. According to reader Steve,  the piece is

“One of Rubin’s best, IMO. She brings the key issue front and center, viz. white evangelical Christian supremacy.”

Click the screenshot to read:

Rubin first discards the notion that betokens a “culture war”:

The livid reaction from progressive advocacy groups and Democratic politicians across the country about the potential evisceration of abortion rights — and possibly others protected by the 14th Amendment — should tell the media this is not simply about “culture,” nor is it a “war.” It’s a religious power grab by justices who, according to at least two female Republican senators, dissembled under oath about their intentions regarding Roe. The Senate Judiciary Committee should hold hearings and call GOP Sens. Susan Collins (Maine) and Lisa Murkowski (Alaska) to testify. If those senators were really duped, they should consider advocating for extreme measures, including impeachment and a filibuster exception to codify Roe.

Well, that’s a distinction without much of a difference, for one could conceive of it as a “culture” war if evangelical religion is a form of “culture” (it is), and a “war” is a “battle for power” (it is). But to think that Collins and Murkowski were duped by justices Gorsuch and Kavanaugh assumes that these Senators were sufficiently stupid to believe the assertions of conservative nominees for the Court. Alternatively, one could suggest that those justices—and Barrett—really were keeping an open mind about Roe and could have changed their minds about abortion after they got on the bench.

The latter hypothesis is insane, and the former unbelievable. The most parsimonious hypothesis is that Collins and Murkowski were playing to their audience as “liberal” Republicans, and knew exactly what they were doing.

But put that aside, for Rubin makes a larger point that rings true:

It’s important to identify the nature of the threat to Americans to understand the reaction that would likely follow a ruling along the lines Alito laid out. A Supreme Court decision that would criminalize abortion, eviscerating the ambit of privacy and personal autonomy afforded by the 14th Amendment, would expand governmental power into every nook and cranny of life — from a doctor’s office in Texas treating a transgender child, to intimate relations in a bedroom in Georgia, to a pharmacy counter in Ohio. Will government dictate a set of views that have not had majority support for decades?

The right-wing justices and their supporters appear ready to reject one of the Founders’ core principles: that religion shall not be imposed by government edict.

Other Republicans have given away the scheme. In his 11-point plan, Sen. Rick Scott (R-Fla.), the head of the National Republican Senatorial Committee, declares: “The nuclear family is crucial to civilization, it is God’s design for humanity, and it must be protected and celebrated. To say otherwise is to deny science.” Put aside the utter incoherence (is it God or science?): The senator is explicitly calling for state power to be used in the service of his religious beliefs.

And it’s no slip of the tongue. As would a number of Supreme Court justices, Scott would impose religious views while refusing to admit his views stem from a particular religious perspective. “Abortion kills human children,” Scott pronounces. “To deny that is to deny science.” Actually, he wants to mandate conduct based on the religious view that humanity/personhood starts at conception.

I appreciate that if you think abortion is murder, you can be impelled to make your religious views into law. But there are many religious and secular people alike who see nothing sacred that begins when a sperm unites with an egg. The zygote isn’t sentient, doesn’t feel pain, and so on. The view that zygotes are “human children” is like saying an acorn is an oak tree. The only difference is that zygotes and not acorns are thought to have souls. The Supreme Court’s decision is an implicitly religious one.

Rubin again pronounces that “This is not about ‘culture.’ It is about appropriating state power to enforce theocratically driven positions.” She keeps saying this again and again, as if the folding of the draft decision into the “culture war” narrative is a gross and harmful mischaracterization by the press. But really, Americans aren’t dumb enough—even those who voted for Trump—not to know that, at bottom, this is a religiously based decision.

Rubin:

In sum, the media’s “culture wars” shorthand is an evasion, a refusal to recognize that what is at stake are the rights and lives of those without the resources or power to defend themselves (e.g., travel out of state for an abortion). The Supreme Court is poised to roil the very essence of our constitutional tradition and strike at the heart of a pluralistic democracy. Let’s call it what it really is: state-enforced theocracy, or, if you prefer, religious authoritarianism.

DUHHHH!  I can’t say whether this is one of Rubin’s best columns, as I don’t read her often, but she’s belaboring the obvious.

What this decision should do is inject new energy into secularism via organs like the Freedom from Religion Foundation and the ACLU (if the latter has any energy left after its fervent wokeism). The highest law in the land is now mediated by a pack of evangelical Christian conservatives, bent on enforcing their religion on the rest of us.

I am starting to wonder if the Court will eventually overturn the “settled law” that deems it unconstitutional to teach creationism and its gussied-up cousin, Intelligent Design, in the public schools. I used to think that really was settled law, but now I’m not so sure. Next to abortion, the issue of evolution is small potatoes. But overturning the Dover and Epperson v. Arkansas cases, among many others, would be a step back into the dark ages: a repudiation of settled science in the name of religion.  (All creationists are, at bottom, motivated by faith.)

I now think it’s only a matter of time before some benighted but devious Southern state passes an “equal time” or “pro-ID” law. Before that happens, let this statement, made 97 years ago by Clarence Darrow during the Scopes trial, be our clarion call:

“If today you can take a thing like evolution and make it a crime to teach it in the public school, tomorrow you can make it a crime to teach it in the private schools, and the next year you can make it a crime to teach it to the hustings or in the church. At the next session you may ban books and the newspapers. Soon you may set Catholic against Protestant and Protestant against Protestant, and try to foist your own religion upon the minds of men. If you can do one you can do the other. Ignorance and fanaticism is ever busy and needs feeding. Always it is feeding and gloating for more. Today it is the public school teachers, tomorrow the private. The next day the preachers and the lectures, the magazines, the books, the newspapers. After a while, your honor, it is the setting of man against man and creed against creed until with flying banners and beating drums we are marching backward to the glorious ages of the sixteenth century when bigots lighted fagots to burn the men who dared to bring any intelligence and enlightenment and culture to the human mind.”

116 thoughts on “The leaked Roe decision: culture war or theocracy?

  1. I am starting to wonder if the Court will eventually overturn the “settled law” that deems it unconstitutional to teach creationism …

    The next big decision will be one outlawing affirmative action as unconstitutional (past rulings accepting it were already pretty grudging). Opinion will be divided as to whether that is a good thing.

    Overturning the ban on teaching creationism would likely involve ruling that it is not “religion” (in the same way that — we’re told — “In God we Trust” has no religious content, but is purely ceremonial); that would be the easiest way of achieving that goal.

    1. Given the utterly inadequate response of most of the world to Covid-19 – to take one glaring example – that is the understatement of the last 3 years.

  2. “Settled law” is settled until it isn’t. This is because the culture changes and the court changes. Unless a position is codified into law via legislation, that position remains at risk. Tying the right to abortion to decisions of the Supreme Court—rather than to legislation—put us where we are today. Abortion-rights advocates struggled to keep the Court on the straight and narrow, while abortion-rights detractors tried to influence the Court to go the other direction. Detractors have apparently gotten their way by convincing politicians to pack the Court with anti-abortionist justices. These same justices may use their power to roll back other rights that liberals hold as “settled law.” Gay marriage is an example, as is the current protection against the teaching of creationism in the public schools.

    We need Congress to pass legislation if we want durable laws that apply at the federal level. Even those can be challenged in the courts, but without Comgressional legislation, it’s up states and their legislatures. Unlike Congress, state legislatures seem more than prepared to act.

    1. Seems even Congressional Laws can be overturned if the current Court wants to, e.g., the Voting Rights Act. Alito says the power should be in the hands of the state legislatures. Might as well go back to Plessy, while overturning Loving vs Virginia, etc.

      1. Acceptance of gay marriage is at 70% and acceptance of inter-racial marriage is at 94% (Gallup polling). So even if the Supreme Court did declare that the constitution says nothing about these, and allows the States to make their own rules on them, the idea that state legislatures would then rescind such things is far fetched.

        1. And following on in support of that, campaigns to teach intelligent design or beat back gay marriage should be fought against as required by the circumstances of the campaign. The vacation of Roe can’t be reversed by any credible mechanism and evolutionists and marriage-rights people must still be on their guard even if somehow it could.

        2. Let me introduce you to Texas. The governor just suggested legislation to remove the requirement to educate all children in Texas. He figures, probably correctly, that the logic behind this draft ruling will be applied elsewhere, too. This is minority rule by religious extremists.

    2. But surely, laws, including Federal Laws, are even more malleable than Supreme Court rulings. When the opposing party just gets a strong enough majority–and these things do tend to swing back and forth–they can revoke any legislation they might wish, especially if they share a party with the President. It’s not always as easily done as said, but changing laws seems to happen quite a BIT more than actually reversing Supreme Court decisions, since the latter are, at least in principle, tied to the Constitution and how it is to be interpreted.

      1. That’s certainly true for contentious issues that don’t have anything close to a country-wide consensus. But control of state legislatures generally does not swing back and forth. California and Washington are solidly blue, have been for decades, and will remain that way for the foreseeable future. Alabama and Tennessee are solidly red. Only a couple are really up for grabs.

        It seems to me that contentious issues where there’s no hope for a national consensus any time soon but where there exists a general consensus on a state-by-state basis are best left to the states. The real problem is getting people to accept that not everyone wants to live like they do, especially as we’ve grown too accustomed to doing things via sweeping national measures, and as political disagreements have hardened into moral crusades…

      2. But surely, laws, including Federal Laws, are even more malleable than Supreme Court rulings.

        Yes, I too don’t see, at all, how “codifying” Roe vs Wade would prevent future repeals. That logical step needs several stepping stones of infill.

    3. These same justices may use their power to roll back other rights that liberals hold as “settled law.” Gay marriage is an example, as is the current protection against the teaching of creationism in the public schools.

      Ummm, if “Roe vs Wade“, which has been “settled law” for about 50 years, is under threat, then surely the ban on Creationism in schools (about 30 years settled) and gay marriage (about 15 years, patchily ; does “patchily” exclude being “settled”) are obviously less settled and more liable to change?

  3. It is obvious to most of us here that religion lies at the core of the right wing political agenda but I am repeatedly dismayed at how widespread the avoidance of this fact is in the general public. Nearly everyone, other than us strident atheist types, glosses over this. It is, for most folk, impolite to point to religion. I say kudos to Rubin for stating the obvious.

    1. Rubin’s criticism probably won’t damage the idea that religion is primarily beneficial as long as the liberal forms play the same “They Don’t Understanding God” tune. It’s as easy to justify women’s rights as attack them when God only weighs in by prompting our conscience one way or the other.

      Where liberal versions of religion have most value is by accepting that religious justifications aren’t ways of expressing faith, but imposing it.

  4. I amplify the clarion call to “inject new energy into secularism” and would add Americans United for the Separation of Church and State (https://www.au.org/#) to the list of organs working to that end. I like Rubin’s language explicitly stating that this is a religious takeover of the US government. Our response to the clarion call must also include openly criticizing the Christian beliefs that are the impetus for this takeover. I contemplate a well-nigh relentless public campaign wherein we irreligious hold the religious feet to the fire and pressure them to prove the truth of their teachings before codifying them into law.

  5. I strongly suspect that many politicians on the right could care less about the ensoulment of a fertilized egg. They can, however, sense how handy the idea is as a weapon to win power.

    1. BTW, I wish they could explain how that soul gets there? Not much room in the spermatocyte, yet it shows up as soon as the sperm punctures the oocyte membrane….or is it when it gets to the nucleus and the DNA combine (meaning it’s carried in the ovum?, in which case the Pythons got it wrong in their song)?

      1. Even if it’s in the ovum (by definition, a roomier residence than an sperm cell), there is still the problem of where that ovum got it’s soul from. Lots of little souls scattered through every ovary, waiting to become instantiated by the addition of genes from a sperm?
        It’s only tiny logical steps from there to the religious insisting that every period product (or boy’s piece of tissue paper) be given a properly formal burial out of respect for the soul enshrined in the cotton wool. (Or CMC, depending on product.)
        Wasn’t there half a chapter or so about this idiocy in Matthew (Cobb)’s “Egg and Sperm Race” book? ISBN 9781416526001, 2007 ?

    2. This is a right-on comment. The whole abortion “issue” was hand picked as a way to get ALL the conservative Christian churches pulling together in their bid to take over American politics. Prior to this drive for political power, abortion was never a big “hot button” issue for many Christian denominations, and there was no universal agreement among the churches that abortion was “bad”.

  6. The ethos of the Republican Party today is that the country was founded as a white Christian nation (a myth) populated by western Europeans, that it is under attack by those that want to reverse this, and anything is permissible to prevent it. This viewpoint is at the heart of the Trumpist cult. Such fears have arisen in the past: the passing of the Alien and Sedition Acts under the John Adams administration, the Know-Nothing Movement in the early 1850s, and the emergence of the second KKK in the 1920s. There is one big difference between the prior movements and today. Previously, “Christian” was synonymous with Protestant. Now it has been expanded to include Catholics.

    So, it is not all hysterical to worry that the separation of church and state is in serious jeopardy. This is what Trumpists want. They are banking that the mass of Americans are not aware of the threat or don’t really care if it comes to fruition. The Democratic Party, presumably the party of secularism, has been so incompetent and ineffectual in countering creeping theocracy that the Trumpists may be correct. Democracy will die with a whimper, not a bang. Expect that prayers will be back in public schools within a decade. In public schools, evolution and creationism will be taught as part of the “controversy.” There is no need to worry about wokeism in the schools. President Ron DeSantis will make sure that there is nary a whisper of it.

  7. I don’t know if Rubin makes the case but I can see where knocking down Roe goes beyond the usual bounds of the “culture wars”. It goes against the wishes of a majority of Republican voters and seems to be a part of a larger effort on the part of GOP politicians who are trying to split the country by driving larger and larger wedges into it.

    I know us atheists consider religion just part of culture but believers obviously place it in its own higher category. The GOP have been using this for decades to rope in believers to vote for them. It is arguable that the natural trend is for religion to moderate its influence on society. Religion plays much less of a role in our daily lives than it did centuries past even for believers. Instead, the GOP is finding it handy to remind believers of their roots. Making people more religious and having religion be more powerful helps in their plans to rope in voters. Overturning Roe is going to be just one of many efforts to take us back to the bad old days.

  8. The most parsimonious hypothesis is that Collins and Murkowski were playing to their audience as “liberal” Republicans, and knew exactly what they were doing.

    I’d put the most parsimonious hypothesis slightly differently: Collins and Murkowski were attempting to maintain their ostensible pro-abortion-rights stance while voting to confirm Trump appointees so as not to get on the wrong side of the MAGA-types who control the outcomes of GOP primary elections and whose turnout Republican senatorial candidates depend upon in general elections.

    1. IOW: “this car won’t drive over the cliff, this car won’t drive over the cliff, this car won’t driiiiiiiiiiiiiiiiiiiiiiiiiiaaaaaaaahhhhh….”

      [Off topic: but does that series of “i”s look like alternating i’s and l’s to anyone? It does to me.]

      1. I only see “i”s… Let me try it for real iIiIiIiIiIiIiI…now it looks like a bunch of “lil”s to me…as in the abbreviation of little.

        1. Weird…when I typed this out, the capital letter “i” didn’t have the two horizontal bars, but when I posted, WordPress changed the letter. So it doesn’t look like what I typed.

          1. the capital letter “i” didn’t have the two horizontal bars

            “serif” is the word you’re looking for. https://en.wikipedia.org/wiki/Serif

            but when I posted, WordPress changed the letter.

            You’ve probably got one StyleSheet (as in “Cascading Style Sheet” operating in your edit-box divisions, and a different one in the main body of the page.

  9. I take a much darker view of this whole subject, which is that any discussion is unlikely to be of any benefit until progressives are actually willing to DO something about it.

    In the context of Der Drumpf’s putative “big steal,” so many commentators worried that we “might be on the brink of another Civil War,” or words to that effect. Which has to be one of the more blindly ignorant observations of recent history. That war started a LONG time ago, and the reason that progressives are losing it is precisely that they refuse to see it happening all around them.

    FACTS: Mitch McConnell refused to hold hearings on Garland, but rammed through Coney-Barrett. OPINION: THAT was an overt act of war. McConnell knows it; the Trumputos know it; only the progressives refuse to see it.

    At the same time, ceding to the forces of darkness not only the lion’s share of the guns, but also the real estate where food is grown and where water comes from. In effect, as I am wont to say, insisting on playing the Eloi to the GOP’s Morlocks.

    This “Roe” moment was inevitable the moment that Merrick Garland wasn’t given a hearing. Pretending otherwise is precisely that–pretending. The rest of the “culture war” (using that term instead of “violent theocracy” or “civil war” smacks of describing Ukraine as a “special military operation”), like outlawing the teaching of evolution, will be child’s play.

    1. Ever since reading Horwitz’s 1998 book Confederates in the Attic, I’ve been under the impression the Civil War never ended for many (most?) people who grew up in the South.

      And the dems/progressives are also caught flat-footed in the GOP’s relentless, decades-long attacks on voting rights, insane gerrymandering, etc. And you have New York’s liberal supreme court throwing out the redistricting that would have given NY two more House Dems, while the even more extreme maps drawn in Florida get signed into law without a hitch. Yes, one side is fighting a war, the other side is cutting off its nose to spite its face.

    2. Come now. Lower the temperature, please. Russia’s invasion of a sovereign country was an overt act of war. (Ukraine chose not to declare war for wise strategic reasons.). Political machinations by the Senate majority leader according to the arcane rules of parliamentary procedure to achieve political objectives you disagree with—one of which was undoubtedly repeal of Roe— are hardly the same thing.

      Think:

      There are people in your country (none of them US Senators afaik) who are perfectly willing to make real war on you, with guns, if that’s what you want. I don’t think you do.

      1. My apologies, LM, for not seeing this and responding earlier; the “[n]otify me of new comments via email” button on this site quit working for me a LONG time ago.

        I would be the first one to agree with your assessment of my comment, but for this: it has long been recognized that the most successful wars are those that are won without firing a single shot. As Sun Tzu noted (see https://www.forbes.com/sites/ericjackson/2014/05/23/sun-tzus-33-best-pieces-of-leadership-advice): “The supreme art of war is to subdue the enemy without fighting.”

        And then, not to put too fine a point on it, he paraphrased himself: “The greatest victory is that which requires no battle.”

        I stand by my comment. Unless progressives ACT like they actually care about the things that they talk about, they will soon awake to a country where it’s far too late for a “real war…with guns” to do any good. As for “what [I] want,” I can hardly imagine anything less relevant. I will have to refer you to Paine’s Crisis, No. I:

        “I once felt all that kind of anger, which a man ought to feel, against the mean principles that are held by the Tories: a noted one, who kept a tavern at Amboy, was standing at his door, with as pretty a child in his hand, about eight or nine years old, as I ever saw, and after speaking his mind as freely as he thought was prudent, finished with this unfatherly expression, ‘Well! give me peace in my day.’

        “Not a man lives on the continent but fully believes that a separation must some time or other finally take place, and a generous parent should have said, “If there must be trouble, let it be in my day, that my child may have peace;” and this single reflection, well applied, is sufficient to awaken every man to duty.” (Source: https://libquotes.com/thomas-paine/quote/lbl0g8q)

  10. Yes, the religion of these justices is what’s driving the culture wars, and I’m fine calling it religious tyranny or religious authoritarianism instead of the euphemistic “culture war”. This country is half-asleep at the wheel. If belaboring this point can wake a few people up, then I’m all for it.

  11. Privacy stemming from the 14th Amendment?

    That is nothing, compared to the broad implication of “privacy” acknowledged in the 9th Amendment. Paraphrase: “Just because we have listed a few rights intrinsic to a person endowed by birth itself, does not mean each citizen possesses ONLY rights enumerated in the Constitution.”*

    If this amendment had ever been taken seriously, the entire Progressive and Democratic project would be void. It is not specifically enumerated that each citizen possesses absolute right to his life, liberty, property, income and wealth. “Left” has taken outrageous advantage of the absence of such a declared right — and created the Leviathan that is the Administrative State which possess absolute conscription power over citizens, and confiscatory power over our personal wealth and regulatory command of companies we own.

    In fact, the haughty annihilation of intrinsic rights by LeftProgressiveDems has overthrown the original American Revolution and implanted an ideology of egalitarian-justified statist command and control in its place. It is the greatest disaster in history.

    *Note: the 9th amendment could be used by Left against the anti-abortion language in “the memo.” Just because there is no enumerated personhood for a fetus, nor a ‘right to an abortion’ in the Constitution does not mean a woman has no right to contract with a doctor to perform an operation — Government has no enumerated power to ‘ban’ abortion.

    However, Left will never even remotely touch the 9th Amendment, no matter how tempting. Left knows it voids their entire project.

    1. “It is the greatest disaster in history.”

      And this is where I stop reading your paranoid nonsense.

      1. Sure seems like someone here thinks he’s the answer to the oft-repeated question, “Who is John Galt?”

        Take heed and despair, ye mere mortals, for the Randian/Objectivist vox populi hath spoken!

        1. @Ken Kukec: I can’t think of a comeback. Your squeak is to lame to engage my brain.

        2. Thanks for the comment, Ken. I found it engaged my brain and made me chuckle. You ever notice how conservatives (at least nowadays) can’t take a joke?

          1. Yeah, that was probably harsher than was warranted, Leslie (though I haven’t heard Mr. Donohue disavow having Objectivist inclinations). For some reason, his comment had me a bit het up. 🙂

          2. Leslie, it is up to his usual with me. He can only weakly ridicule and fling regurgitated memes. This at least the third time. Objectivism brings out the sputtering squeak in some people.

      2. The annihilation of the only nation built from the ground up on individual rights and freedom by cynical power brokers teeing off on egalitarianism is indeed the greatest disaster. It is not the vapid Left’s fault. It is the fault of those who let it go.

      3. I particularly liked these bits:

        created the Leviathan that is the Administrative State which possess absolute conscription power over citizens…

        Democratic party formed: 1828. First conscription: 1778. It must be Obama’s time machine again, letting those darned liberal democrats create conscription!

        …and confiscatory power over our personal wealth and regulatory command of companies we own.

        Democratic party formed: 1828. Gibbons v.s Ogden, where the courts stated that Congressional regulations on businesses are constitutional: 1824. That damn time machine again, letting democrats create regulatory command 4 years before they existed!

    2. Wait…what? The “greatest disaster in history”? Greater than the Khmer Rouge? The Great Leap Forward? I think you have a skewed perspective.

      1. Mao is only the specific flag carrier of Left, even murdering 40 million people. He is still called at least a half-hero by a billion people, because the greater disaster — the annihilation of intrinsic rights as an axiomatic inviolable principle — still lives on.

      2. Not sure if you would remember, but a few years ago you chastised me for my description of a certain category of self described libertarian. Here’s an example of what I meant.

        Regarding your first comment upstream, +1.

      3. The “greatest disaster in history”?

        Great Oxidation Event, if you ask me? Though you could make a good argument for the “Great Dying” (253 Myr ago, end-Permian). Or the Snowball Earth – round 1, round 2, 3, or 4?

    3. Right wing libertarians are a joke. Nobody takes them seriously. It’s certainly one of the most inane and obviously ridiculous systems known to humankind, only slightly above people who imagine themselves as new monarchs. There’s usually an overlap, too, also with fascists.

      1. @ Aneris, “right wing libertarians?” In other words, the Founding Fathers of the United States of America. What cohort do you champion if you think the foundational idea (and the Founders) are a inane ridiculous joke?

        1. Now there’s a take on the founding that makes the 1619 Project seem circumspect by comparison.

  12. I amplify the clarion call to “inject new energy into secularism” and would add Americans United for the Separation of Church and State (https://www.au.org/#) to the list of organs working toward that end. Let’s also write letters to the editors of news organs in which we hold the religious feet to the fire and make them prove their claims, such as that souls exist, before codifying them into law.

  13. When you read the Alito opinion keep a barf bucket handy. You’ll need it. Alito’s main argument is this:

    “The inescapable conclusion is that a right to abortion is not deeply rooted in the nation’s history and traditions,”

    He “argues” that only things that are deeply rooted, etc, could be considered rights. By that argument, in 1866 slavery was deeply rooted right down to the founding of the nation. Would Alito argue that slavery is a right? He would be forced to by his own hand.

    Alito’s dreck is so littered with factual and scientific errors that you will have many WTF moments.

    It should be noted that Alito used the exact same argument in his dissent in Obergefell – not deeply rooted. I find Alito to be deeply flawed and unrooted as to be unhinged.

    1. You’re right. Alito’s not.
      But he’s on the Supreme Court (writing apparently for the majority.). And you’re not.
      You lose.

      Shift focus to the states legislatures if you want to win.

    2. He “argues” that only things that are deeply rooted, etc, could be considered rights.

      Well no, what he actually argues is:

      “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” (Washington v. Glucksberg), …”

      Followed by:

      “The right to abortion does not fall within this category. Until the latter part of the 20th century, such a right was entirely unknown in American law.”

    3. There is sufficient textual support for an anti-slavery position in the 14th Amendment, but not an abortion-rights position. At least not at the federal level.

      1. You don’t need the 14th Amendment to reach slavery; it was abolished by the 13th Amendment.

        Do you think “there is sufficient textual support” in the 14th Amendment to invalidate state criminal sodomy statutes, as SCOTUS found there was in Lawrence v. Texas (2003) (overruling its 1986 decision in Bowers v. Hardwick)?

        1. What do you think about the view that for rights not mentioned in the constitution to receive constitutional protection they must be “deeply rooted in this Nation’s history and tradition”?

        2. I think the Equal Protection clause has a lot of wiggle room, especially if the court continues to use the “disparate impact” standard. Sodomy, interracial marriage, etc. could be held to be protected because bans would deny rights under the law to people based on protected characteristics. On the other hand, one could argue that the law is neutral, since it bans rich and poor alike from living under bridges, straights and gays alike from having anal sex, and bars every person equally from marrying outside their race.

          Either way I would say “okay, I follow your reasoning”, even if I didn’t necessarily like the result. So I do think a reasonable case can be made based on the text.

          I have not heard anyone explain how a right to privacy arises from the same text, and how a right to abortion (but not certain other private acts) arises from that privacy right, especially a right to abortion that has specific limitations like the viability standard from Roe or the undue burden standard from Casey, that doesn’t boil down to “Well, they said it’s there, so it must be there.” All that stuff is hiding in the penumbra of the 14th Amendment? Sorry, I just don’t buy it. I don’t see the reasoning, and if the reasoning was good I’d think somebody would have been able to put it in terms a regular Joe like me could understand.

          Can you explain it?

          1. The individual rights set out in the amendments to the constitution are written in barebones language and require judicial interpretation to flesh them out.

            The First Amendment, for example, according to its text, applies only to laws passed by Congress</b. It is only through judicial interpretation that those rights have been extended to actions by the other two branches of the federal government as well as to actions by state, county, and municipal governments. The amendment guarantees freedom of the press, but says nothing about “prior restraints.” It guarantees freedom of speech, but says nothing about “captive audiences” or “public forums” or “time, place, and manner restrictions” or “fighting words” or “incitements to imminent violence.” The amendment says not a word about a “right to private association.” All these and more are matters of judicial creation.

            Similarly, according to the terms of its text, the Fifth Amendment Double Jeopardy clause applies only to crimes for which the potential punishment is loss of “life or limb.” it is only though judicial interpretation that it has been construed to extend to crimes for which the potential punishments include imprisonment, fines, and probation.

            Also, nothing in the text of the constitution guarantees equal protection under federal law; the 14th Amendment’s Equal Protection clause, according to its text, applies only to state action. It is only because the courts have discovered an “equal protection component” in the Fifth Amendment’s Due Process clause that citizens enjoy equal protection under federal law. I could cite dozens more similar examples.

            I hope this helps answer your question. But you never directly answered mine: Do you think Lawrence v. Texas was wrongly decided?

            1. I agree that many details must be worked out by the courts. What exactly does it mean to be ‘to be secure in one’s person, house, papers, and effects’? Which searches and seizures are “unreasonable”? What is “life, liberty, or property”? The specific answers are not inherent and the courts have wide latitude to interpret those statements as long as they follow a decent chain of reasoning based on a consistent set of principles.

              I agree the Constitution protects privacy, at least of information. (It’s not clear that it’s the province of the 14th Amendment.) But does “privacy” include abortion? That seems like a stretch too far and Roe isn’t very helpful in understanding it. ‘Maybe it comes from here, maybe from there… these courts agree, these others disagree…’ They never give a clear chain of reasoning from the text to the conclusion. Why were those courts right or wrong? Why is abortion protected but not various other private acts? What makes the abortion right “fundamental” given the long-standing and widespread opposition to it? Even if I had the time to read all the references (and their references…) it doesn’t seem likely to become clear. At best I can say that it sounds like a very subjective decision. ‘We agree with the courts that agree with abortion.’ Okay, but why?

              To answer your question: overall, no. They gave multiple reasons, including the right to privacy from Roe as well as the Equal Protection Clause. I’m not convinced of the right to privacy as specifically invoked, but given the existence of Roe it was reasonable to rely on it, and even without Roe the ruling still stands on the Equal Protection Clause.

            2. Note how neither Adam nor Sean actually answer questions about Loving, Lawrence, etc.

              It seems to be a common conservative thing. They want to kick the privacy stool out from under abortion, and pretend all the other rulings standing on it will continue to float in mid air.

          2. > Sodomy, interracial marriage, etc. could be held to be protected because bans would deny rights under the law to people based on protected characteristics.

            I’m still wondering why interracial marriage bans are prohibited, while cousin-marriage bans are permitted – and occur in several states . Both types of bans restrict marriage based on (perceived) genetic proximity, so they seem to fall into similar categories. I am from a jurisdiction where cousin-marriage is illegal, but have spent most of my adult life in jurisdictions where it is legal. Even stranger, despite the Full Faith and Credit Clause, some states do not recognize out-of-state cousin marriage. I thought all US states had to recognize marriages from other states, even before Obergefell.

            (Here’s a fun twist: opponents of cousin marriage do not seem to have a valid argument against same-sex cousin marriage.)

            1. Interesting comment. I expect they’d talk about the increased chance of genetic disease, but that test is very inconsistently applied. Why not same-sex marriage between siblings for that matter?

              I suspect the yuck-factor conclusion comes first, and then reasons are invented to cover up the true motivation for the law…

  14. First, Jennifer Rubin is a badass and required reading for me. The “ring true” % is as high for her as any oped writer, even when her columns challenge some belief of mine, and they always provide some useful context I don’t typically see elsewhere.
    Not sure about Murkowski, but I’m pretty sure Susan Collins is just a rube, and at the very least just hears what she wants to hear.

  15. Rubin again pronounces that “This is not about ‘culture.’ It is about appropriating state power to enforce theocratically driven positions.”

    Like Certs mints, it can be two, two, two things in one — both creeping theocracy and the rightwing’s first, long-sought victory in its revanchist quest to regain ground given away in its unbroken streak of culture-war losses dating back to passage of the federal civil-rights acts of the mid-1960s.

  16. Well, cultures associated with religion don’t all turn out the same. With the Supreme Court’s blessing, many US states will now restrict abortion rights much more strictly than predominantly Catholic Poland, Spain, Portugal, Italy, and Ireland. Interesting.

    However, I detect a hopeful side in the Reverend Alito’s draft ruling. Its release now, and its official
    promulgation (with minor rewording) this summer, are both occurrences before the 2022 elections. They therefore could provide really major electoral help to candidates of the Democratic Party. If the Dems retain control of the House and gain a real, workable majority in the Senate, a number of things can be turned around—including the Senate filibuster rule, federal abortion rights, federal voting rights legislation—and the number of justices on the Supreme Court.

    But if even the Roe v. Wade issue does not hinder the Republicans from gaining legislative control—i.e., if USians show that they are happy to live in a theocracy—well then, maybe a theocracy is what they should have. Come to think of it, the theocratic mentality seems distinctly evident on the Left as well as on the Right, just (as John McWhorter points out) with a different set of superstitions.

  17. Senator Rick Scott says :

    “The nuclear family is crucial to civilization, it is God’s design for humanity, and it must be protected and celebrated.”

    Well, sure, ok I guess, forgiving the weird word choices … and if we edit “God’s” out… – but clearly he means his _own_ conception of what a family must be, which all other families conform to.

    How about a “nuclear family” that simply cannot afford to raise another child?

    What that tells me is religion is making these claims for itself – not “civilization”, and not Senator Scott – to expand the religion’s domination over all life. But Scott is positioned to let the United States do it, against the constitution.

    Personally, I think that quote would sound much better if Scott was edited into a scene of The Ten Commandments in place of Charlton Heston, spreading his arms, with a staff and a big beard, on the silver screen.

    1. Is there much evidence of the nuclear family in the Bible? All I remember is the polygamy, handmaidens, and concubines.

      1. Google Ngram viewer shows the expression “nuclear family” start rising about 1950 (ahhh, the 50’s… makes sense, doesn’t it?…) and double peak between 1980-1990.

        The chart is always messy to put in a comment so I leave the basic link :

        https://books.google.com/ngrams

        … what, precisely, is being whipped up with this expression seems apparent, to me.

  18. Well, that’s a distinction without much of a difference

    Yeah, the whole ‘culture war, or theocracy?’ angle of her piece seems a bit overwrought. It’s arguing labels rather than substance. The decision’s the thing, not the label you put on it.

    I guess maybe she thinks the label is important in trying to sway wall street/free market Republicans into opposing the ruling along with liberals. I.e. by saying “not a culture war” she’s telling them this is not a Dem vs. GOP issue, and by saying “it’s authoritarian theocracy instead” she’s trying to scare them into considering that their freedoms may be a later course on the same menu.

    The Supreme Court’s decision is an implicitly religious one.

    I disagree…for now. The leaked decision doesn’t define personhood as beginning at conception, it simply guts the 14th amendment’s “right to privacy” interpretation. But it’s certainly possible that this conservative court decides to define personhood in a later ruling. I’m not the first person to say it, nor the last, but getting rid of a government “you have the right to do X” is step one towards getting government to say “you can’t do X”.

  19. How much institutional support is needed for (and are the numbers there to implement) a pro-choice Constitutional Amendment, one that federally defines personhood as beginning at birth – or similar birth-like process; I’ve heard the argument that cesarean section deliveries are not ‘births’, so I want to head off all of /those/ arguments. Plus, we’ll have to be prepared with legalese to cover third-millennium contingencies like pregnancies in an artificial womb, etc.

    It might be simpler just to have a Constitutional Amendment allowing Congress to determine personhood and requiring states to follow that definition, but that opens the door for subsequent sessions of Congress to use that power to take things in the other direction.

    Even with a federal definition of personhood, there are currently state and federal laws taking effect for humans aged [birth-plus-N years], so states could still push legislation for [birth-minus-N months]. A Personhood Amendment without a pro-choice clause simply would not be sufficient.

    1. I’ve heard the argument that cesarean section deliveries are not ‘births’ …

      That was the catch in the witches’ prophecy that allowed Macduff to kill the Thane of Glamis and Cowder in Shakespeare’s Scottish play. 🙂

      “There’s only one catch,” as Doc Daneeka told Yossarian, “but it’s the best there is.”

    2. First idea wouldn’t work, as you get to in Para. 3.
      Canada’s Criminal Code has long, i.e., even when abortion was still illegal, defined a human being (not exactly the same as a person in our law but close enough) as a “child” (read fetus in context) fully born alive and separate from its mother. Abortion was then just the crime of procuring an abortion, not any form of homicide. You could still get 14 years iirc, same as for manslaughter.

      The aborted entity does not have to be a human being for abortion to be scheduled as a serious crime. At least in our law, we could write an abortion law without having to redefine human being. Now if someone (typically a domestic partner) injures a fetus who is subsequently born alive but then dies from the injury, that is homicide.

  20. As to who lied and who was duped or who just played along, I think it’s safe to say that when a politician talks to a judge, both will know exactly what the boundaries are for plausible deniability.
    As a friend says, “Never lie. Never tell more of the truth than you have to. Never pass up a chance to pee before a meeting. And always make sure you haven’t stuffed your dress into the top of your pantyhose.”
    The assertion, “I sincerely believed that Roe was settled law (whatever that means) during my confirmation but I changed my mind on hearing the arguments,” may be unbelievable to most of us. But it is not provable as a lie, which is the relevant question here. So you (and I) can believe they were all playing the game but you can’t impeach any one of ‘em for lying to a Senator under oath, a Senator now claiming buyer’s remorse to save her own position.

    As to Rubin’s worry that the state will now interfere in medical decisions for ideological reasons, it does that all the time, and I don’t mean just on questions of payment. If a Court in a malpractice case thinks that the standard of care adduced by the medical experts is not in the public interest, it will write its own standard and judge retroactively the actions of the doctor against that new standard. Doctors have to obey the law just like everyone else. Affirmation therapy for adolescents is illegal in Texas (much to the secret relief of many doctors in the trenches, glad that someone is sticking up for them finally) but mandatory in Canada, “conversion therapy” having been banned. Doctors may not prescribe ivermectin for Covid or proselytize against vaccines. They must report unfit drivers, pilots and train drivers, child abuse, gunshot wounds, and unfit colleagues to various organs of the state. Policies of medical regulatory bodies have force of law. The regulator may without a warrant enter any place we keep charts and examine any patient’s chart without prior knowledge or consent of the patient. And so on. It is incomplete and misleading of Rubin to say that doctoring is a private act. It is a private act regulated on behalf of the state in the public interest. If any of these requirements are motivated by the religious beliefs of the people writing the laws and regulations there is not much that doctors and patients can do about it at the point where care is provided.

    Some state laws in the Roe era erected onerous artificial barriers to women wanting legal abortions: forced reading of anti-abortion propaganda, required scripts that doctors had to include in their consent discussions, waiting periods, medically unnecessary (self-paid) ultrasounds to confirm gestational age. These were perfectly constitutional although without doubt religiously motivated even though the abortion itself was a right.

    Rubin does go overboard. All rights must be safeguarded against encroachment. I just don’t see the Roe decision as changing much, other than energizing the encroachers. But then my support for free abortion has always been that it’s a prudent utilitarian social policy but for which there is no inherent right. Unlike evolution which is a matter of defending Truth.

    1. Well said, LM, in both parts of your comment.

      Not being a USAian, I don’t have a dog in this particular fight, but the issues raised here extend beyond the USA’s border: what is a(n individual) right and how is such a right justified? To what extent should judges stick to original texts rather than treat the text as a living document and acknowledge present day thinking? Here in NZ these are very much live issues.

      On the first matter, it has long been apparent that the Supreme Court’s powers to interpret and strike down laws has given it a controversial political and legislative role – Bertrand Russell noted this a lifetime ago in his A History of Western Philosophy. The most recent SC appointee’s difficulty in defining a woman suggests that diplomatic evasiveness is a bipartisan requirement for the job.

  21. Before we conclude that the desire to overrule Roe v Wade must be founded in either religious motives or in one’s substantive view about abortion, let’s to consider what some knowledgeable legal scholars have said about the legal reasoning of Roe v Wade.

    Celebrated legal scholar and law professor John Hart Ely wrote that Roe “is not constitutional law and gives almost no sense of an obligation to try to be. …What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure. Nor is it explainable in terms of the unusual political impotence of the group judicially protected vis-à-vis the interest that legislatively prevailed over it. …At times the inferences the Court has drawn from the values the Constitution marks for special protection have been controversial, even shaky, but never before has its sense of an obligation to draw one been so obviously lacking.”

    Ruth Bader Ginsburg (eight years before joining the Supreme Court) wrote that Roe was a “Heavy-handed judicial intervention [that] was difficult to justify and appears to have provoked, not resolved, conflict.”

    I can understand the people who think that this whole question is answered by one’s substantive view about abortion. But there is another view. Suppose the above opinions are correct and the Constitution, correctly interpreted, really does not protect a right to abortion. Would you be in favor of the Supreme Court declaring such a right anyway? Interested in hearing the responses to that question.

    1. John Hart Ely is not on the Supreme Court bench, and RBG ruled consistently for Roe when she was. Whatever the motivation of people who are not SCOTUS might have for wanting Roe gone, I think you are going to have a difficult time denying that Alito and Barrett have no religious motivation.

      Alito, in particular, is very very clear about wanting to expand the role of religion plays in law and public life. His concurrence in the Ohio flag case makes it clear he wants to make it legal for teachers, coaches, judges, civil servants, etc. to ask their captive audiences to pray with them. And in the draft abortion opinion, he says that the big difference between Roe and the marriage cases that makes him want to eliminate Roe is that abortion “destroys something.” This is very clearly pointing to the pro-life “zygote is a person” theology, since destroying someone’s own property would not be any rational basis for distinguishing it from other rights.

      Suppose the above opinions are correct and the Constitution, correctly interpreted, really does not protect a right to abortion. Would you be in favor of the Supreme Court declaring such a right anyway?

      No. But as I pointed out to you yesterday or the day before, SCOTUS ruled years before Roe that the 14th provides a generalized right to privacy. So it is simply impossible to claim that Roe is the product of some new or novel interpretation, unless you want to claim the Burger court justices had a time machine.

      And it is also impossible, no matter how much conservatives might squirm about this, to maintain that Loving has a legal foundation while getting rid of the legal foundation of Roe. Because both derive from the same interpretation of the same amendment. Loving came first, then Roe.

  22. Whoops–accidently posted this under Jesus and Mo’ instead of here:

    I’ve been saying for years that where the abortion debate [sic] goes wrong on both sides is:
    – on the anti-abortion side (I can’t call them pro-life) you’re NEVER going to convince a Christian that life doesn’t begin after conception–they believe a human is a human from the first second
    – on the Women’s Rights side, calling it an individual woman’s choice doesn’t mean anything to a Christian–you’ve got to either get them to believe the science of what life is (good luck), or somehow figure a way to get them to believe a soul is put into a fetus at a certain point during the 9 months.

    I KNOW that’s a ‘duh’ statement, but instead of screaming to religious people about women’s rights, we should be saying “it’s NOT a human until X.”

    It won’t work, but it’s a far better argument to use with people who believe in The Big Old White Guy in the Sky.

    At least some of them may think a bit.

    1. There are many better arguments. Here’s a few:

      1. We do not coerce any other people to sustain the life of another person by force. So it is unconstitutional to deny pregnant women this equal protection, even if you consider the zygote a person. Unless you want it to be criminal to refuse to do CPR, or criminal not to donate organs, then you should object to it being criminal for a woman to refuse the use of her womb to a zygote.

      2. Laws are not morality. It’s fine to think this is immoral. That does not justify making it illegal – that requires a more broad societal consensus and legal reasoning that does not depend on a religious argument. Is “Hindus find it immoral” a valid legal argument for the US making eating meat illegal? No! Is “taking the Lord’s name in vain violates the 10 commandments” a valid legal argument for making cursing illegal? No! In exact parallel, “Christians find abortion immoral” is not a valid legal argument for making it illegal.

      3. The courts are expected to take the history, justifications, and public statements by legislators into account when assessing legal validity. When we do that, we find that these laws always target women’s sex lives and only sometimes attempt to reduce abortion rates. So which is the real motivation? It must be the former, right? Examples: pro-life “zygote is a person” laws exclude IVF zygotes from personhood. Why? Because they’re not in a woman. That makes no sense if you think they’re sincere about their stated belief. It makes total sense if you think the laws actually target women. Second: they oppose comprehensive sex ed. Again, makes no sense if they really wanted to reduce the abortion rate. Makes total sense if the laws are really targeting women. Third example: they oppose free access to contraception. This is another measure we know reduces the abortion rate. But also allows less risky sex. Again, this is obviously targeting women having sex, not trying to reduce abortions. Fourth example: they oppose HPV vaccination. A cancer-causing STD, and they oppose eliminating it!!! This has nothing at all to do with abortion. There is simply no rational way to oppose it if the concern is reducing abortions. But again, their opposition makes total sense if their real motivation is to deter women from having sex. At every turn, their laws target women. They only sometimes reduce the abortion rate. But if a law would reduce the abortion rate by making sex safer or making safe sex more accessible, they will oppose it in favor of a law that increases the abortion rate but makes sex more risky. If it walks like a misogynist duck, and quacks like a misogynist duck, the justices should throw it out of court like a misogynist duck.

      So there you go. Three arguments that do not require anyone to tell Christians “life doesn’t begin at conception.” They can believe that, and they should still be pro-choice, for the reasons above.

      1. While your arguments make sense, Eric, what I think you are now overlooking is that the Supreme Court seems (if the leak is true) to have decided that notwithstanding your arguments, there is in fact no right to abortion. There is nothing more to argue, other than why you think it was wrongly decided. The umpire called Strike 3, not Ball 4. You can watch the slo-mo all you want and get your friends to agree that the ump blew it. The batter is still out.

        When the action moves to the state legislatures, the lawmakers don’t care if they “should” be pro-choice for your reasons or any other reason. They can, and will, be exactly whatever they think will get them re-elected. Naturally we should all work to change the voting climate in restrictive states so that misogyny is not a winning strategy for the politicians. My little contribution from faraway I hope is to encourage the consensus building where the legislature gives you 15 weeks to have an abortion instead of none. If after that it’s murder, well, so be it. Good trade.

        With there being now (or soon) no right to abortion in the United States, you can’t just bail and go to the Court to block a law you don’t like. You’re stuck with trying to get voters to send a better message, working with people you don’t much like instead of calling them names. It can take years to get a bad law repealed but the years are going to go by anyway. You won’t win if you don’t try.

        1. My point was that you are NEVER going to change the minds of ‘religious’ people who believe that a human being is created at conception.

          They’re wrong, of course.

        2. The umpire called Strike 3, not Ball 4. You can watch the slo-mo all you want and get your friends to agree that the ump blew it. The batter is still out.

          As Cubs’ fans were wont to say during the ballclub’s 108-year World Series winless streak, “Just wait till next season!” 🙂

        3. I was responding to Robb; the above are arguments one can make to a Christian pro-life friend when you do not want to go down the rabbit hole of zygote personhood, since all of them work even if a zygote is considered a person.

  23. I think it is important that a significant commentator like Rubin makes this point. I have always understood the anti-abortion issue to be people using their religious beliefs to deny the right of women to control our own destinies. The people who read this site are more consciously aware of religious invasion into the law and our secular lives than most. This obvious-to-us statement re: theocracy needs to be heard. The once mildly interesting phrase “culture wars” now has all the power and substance of oatmeal. If others in the media are describing the successful efforts to eliminate abortion with such a mealy-mouthed term, they need to be called out.

    1. The theocracy is certainly a threat because well-organized even if a minority on the abortion question.

      Just remember that most people of either sex aren’t theocrats. It’s a mistake to believe that opposition to the full pro-choice position comes all and only from religious zealots, Leftist feel-good mockery notwithstanding. Even atheists can be uncomfortable with the idea that a woman has complete sole control over the fate of a fetus up until it is born. (Which actually is the law in Canada, fwiw.). So because you do not in fact have a right to abortion in the United States (or won’t if the leak about the ruling is correct), you will want to make allies at the state level with moderate men and women who don’t buy all nine yards of the pro-choice argument. Many are OK with early abortions and don’t want to see anybody’s daughter die from a criminal one. They also want to use IUDs and Plan B themselves. This is a majority mainstream position but it is turned off by radical feminists arguing that the state has no interest whatsoever in a third-trimester fetus. “Get your laws off my body!” just screams narcissism and builds no bridges. The middle will leave you to fight your own battles on that one and you’ll end up with 6 weeks and a heartbeat.

      So now that you’ve lost the absolutist pro-choice reproductive rights battle, how are you going to get rid of the worst state laws? Suggest a visit to Mississippi to ask the moderates how they got the theocracy to spot them 15 weeks.

      1. Roe does not permit abortion up until birth, as you probably know. So a faction who want abortion legal after viability are not the issue. We are losing the rights we now have, how can the demand for extending those rights be the subject here? I prefer to focus on the fact that most Americans want abortion to be legal, though with restrictions. (I don’t have optimism for Mississippi being the locus for a groundswell for moderate taking a stand for women’s rights!)

        The greatest push to eliminate abortion rights in the US is indeed coming from Catholics and fundamentalist Protestants. They are not thinking “I am a theocrat.” They are thinking “abortion is murder, murder should be illegal.” Many Americans have not read the Constitution nor are they considering whether their political positions lead to a theocracy or autocracy or plutocracy. I have no idea what the average atheist thinks about late term abortion, but I am also unaware of any atheist groups organizing to eliminate abortion rights.

        I am a very reserved person and plenty of political antics make me uncomfortable. But I can’t agree with you that a woman is narcissistic because she doesn’t want the state to control her reproduction, even if she is loud and obnoxious about it. It is an absolute necessity to have bodily autonomy in order to control our own lives. I can’t begin to express my rage and grief that a minority of people whose religion I don’t share want to turn this nation back 50 years.

        1. Very well said, Emily. Although abortion rights aren’t such a hot political issue here in the UK, women’s right to argue against the threat “gender self-id” poses to women-only services and spaces is branded hateful and “transphobic” by trans rights activists. Fortunately, the tide is starting to turn, at least in England (Scotland looks set on introducing self-id there), and some important legal cases are underway. Allison Bailey’s witness statement (her employment tribunal case is taking place this month) is a powerful indictment of the treatment she faced for criticising trans extremism: https://allisonbailey.co.uk/documents/

      2. There’s definitely a squick factor associated with abortion — and the later in the term of pregnancy an abortion occurs, the squickier it gets. And I certainly understand how some people have an emotional reaction to seeing the ultrasound of a developing fetus. Hell, I share that reaction.

        Which is precisely why I would fight to the death to prevent a woman who experiences these emotions from being forced to have an abortion. But such emotional reactions provide no basis for those who experience them to foist their views, under penalty of law, upon woman who do not share them.

        To believe that one has the right to do so invariably arises from religious conviction.

        1. It is important to point out that such “religious convictions” have changed substantially in recent years. Support for birth control, and in many cases abortion, were part of protestant doctrine until very recently.
          My understanding of the shift is that it had to do with establishing political alliances with catholic groups. I could be mistaken on that one, though.

          I initially saw this as a case that perhaps the reasoning behind Roe was flawed, meaning the arguments behind the specific ruling, not the larger question of abortion. That might be the case. However, I don’t think you can restrict abortion without trampling the basic rights of the mother. It is not analogous to child abuse. In abuse cases, the child can be removed from the parents, and cared for by others. Whether the fetus can feel pain or whatever, it is not a fully formed autonomous human. It is unique in that it is being manufactured by the mother.

          I think that perhaps people fall to easily into the trap of thinking that if something is unpleasant, it should be banned. They should instead understand that some things are just none of their business.

          1. In the immediate aftermath of Roe v. Wade — which was decided 7-2, with four Republican appointees joining three Democratic appointees in the majority — the decision was not nearly as controversial as it would later become. At the time Roe was decided in 1973, the primary wedge issue between Right and Left was still race — a product of the divisions over the federal civil-rights acts of the mid-1960s, the two presidential campaigns of George Wallace (the second one, in 1972, cut short by an attempted assassination), and Richard Nixon’s adoption of the so-called “Southern Strategy.”

            When the steam began to run out of race as a dividing issue in the late ’70s, the Right made a conscious decision to turn to abortion as a wedge issue to excite its base. One of the effects of this was to bridge the divide between evangelical Protestants and conservative Catholics — a divide that had been carried over from Europe and that had lingered on this continent for decades and, in some instances, centuries. (Many Protestants, for example, including especially hard-shell Southern Baptists, referred to Catholics by the derogatory term “Papists” and refused to acknowledge them as “Christians.”) One of the effects of the abortion wars was for evangelical Protestant and conservative Catholics to make common cause, which has since expanded beyond abortion to other so-called “culture war” issues — although one occasionally still sees the old divide flare up, as, for example, with Georgia congresswoman Marjorie Taylor Greene’s recent declaration that the Catholic Church is under the control of Satan.

            1. It seems like a smart idea to make common cause, rather than fighting each other. However, it must be a bit awkward for them to change their core beliefs for political reasons. If those principals were passed down from God, I do not think they would be subject to modification, unless church leaders claimed that they had received divine edits to doctrine.
              You left out the gay bit in between. Anita Bryant and all of that.

              1. “If those principals were passed down from God, I do not think they would be subject to modification”

                Hahahahaha. It’s religion, Jake!

  24. Fact: the ruling doesn’t make abortion illegal. It just makes abortion issue go back to representatives. If there is no federal law, then go back to states.

    Fact: abortion is not addressed in constitution. For such important issue, it needs to be decided by the representatives of people, not a few judges.

    Fact: abortion issue is not fundamentally religious. I am an atheist and I think it should be limited. And I see no reason an atheist should think abortion should be unlimited. There must be lots of biologists here. Do you guys really believe human life begins at birth? A relevant survey: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3211703

    Fact: abortion is only legal under certain circumstances in most countries, including vast majority of Europe countries.

    Fact: many Roe supporters think Roe is weak on reasoning and politically bad, including RBG. https://www.law.uchicago.edu/news/justice-ruth-bader-ginsburg-offers-critique-roe-v-wade-during-law-school-visit

  25. The 5 signatories of the leaked draft that nullifies the right to abortion are Catholic: Alito, Thomas, Barrett, Kavanaugh and Gorsuch (Gorsuch attends an Episcopalian church because his wife is Anglican, but he was raised Catholic and has never said he has stopped be Catholic).
    In the battle to turn America into a theocracy, reactionary Catholics are the striking force.

      1. With the American population being overwhelmingly Protestant, it is shocking that among the nine members of the Supreme Court there is only one Protestant (Jackson). It is also shocking that the Republican theocrats have placed exclusively Catholics, and no fewer than six, on the Supreme Court.
        Due to his defense of the right to abortion, Biden is already excommunicated through the so-called “automatic” excommunication, which does not require an official ecclesiastical declaration. That is why in 2019, during a mass in South Carolina, Biden went to communion and the priest refused to give him the magic cookie. In order not to repeat that embarrassing situation, Biden now has a team that is in charge of always taking him to mass officiated by non-integralist priests.

    1. Roberts is also Catholic, and I think, when all is said and done, he will side with the other five of his fellow religionists.

  26. You may disapprove of the abortion of a bunch of cells, but be happy to eat a sentient animal. That invalidates sentience as an argument against abortion.

  27. Dear All,

    Hello! Regardless of how much the issues concerning (the legality of) abortion pertain to culture war or theocracy, one of my friends by the name of Keith has recently conveyed the following from the perspective of legal standing:

    There are three constitutional requirements to prove standing:

    Injury: The plaintiff must have suffered or imminently will suffer injury. …
    Causation: The injury must be reasonably connected to the defendant’s conduct.
    Redressability: A favorable court decision must be likely to redress the injury.”

    The same holds true about issues around contraception, interracial marriages and abortions, which seem to be in the news the past two days. I was sharing with our friend Jill, if certain groups want to try to make contraception illegal, they truly have no standing on the issue. But, good luck with that. Not only do the significant majority of women and men want contraception to be available there is a correlation between using contraception and fewer abortions. The last data point I saw said a very significant majority of US Catholic women want contraception in spite of the Pope’s position.…

    Let’s take this one step more. People who tend to argue against Roe v Wade the most tend to be folks who would also argue for the government to leave us alone and let us live. The hypocrisy of this contradiction resounds. So, if government can rule a woman’s body, then we should fine or jail people who put themselves and others in jeopardy. Gun ownership – no more. Drinking and driving – more severe punishment. Obesity and taking up our healthcare spend as a result – fines for the extra cost of care. Passing along STDs or HIV, jail time. And, so on.

    In addition, my own multidisciplinary perspective proposes that four of the most insidious and corrosive conditions have exacerbated these issues dramatically:

    (1) The prevailing anti-intellectualism
    (2) The cult of anti-expertise sentiment
    (3) The politicization of science
    (4) The prevalent manifestation of populism

    https://soundeagle.files.wordpress.com/2020/12/rejection-of-critical-thinking-and-objective-reasoning-with-seven-insidious-and-corrosive-conditions.jpg

    You are welcome to find out much more about these four conditions at my extensive and analytical post entitled “Misquotation Pandemic and Disinformation Polemic: Mind Pollution by Viral Falsity“, which has been greatly improved and expanded, and which you can easily locate from the Home page of my blog.

    Yours sincerely,
    SoundEagle

    1. One must establish “standing” in order to maintain a lawsuit. Indeed, as to federal lawsuits, establishing “standing” is a requirement imposed by the “case or controversy” clause of Article III, Section 2 of the US constitution.

      But legislatures — and the US congress — need not establish “standing” to enact statutes. And it is such statutory enactments that pose the gravest danger to the freedom to obtain an abortion, or to the exercise of any other freedom heretofore protected by the constitutional right to privacy.

      1. Quite so, Ken. Which is why admonitions running through this thread that legislators should be pro-choice if they were rational, why they should mind their own business, why they should not legislate according to their religious or personal morality (as if), why a fetus isn’t a human being anyway, and why pro-lifers are such contemptible misogynistic inbred deplorable hypocrites—they’re all totally beside the point. The legislature doesn’t have to listen to any of those arguments. A legislator might even tell you, “No, I don’t vote according to my personal beliefs. My constituents don’t want abortion in Louisiana—I don’t care why. I’m happy to legislate against it in order to keep getting re-elected. I was a failed lawyer before politics. I don’t want to go back to being a failed lawyer. If they change their minds, I’ll change my vote. Simple as that. This is Louisiana. We don’t lead, we follow.”

        As I see it, the task for pro-choice people is to find a way that legislators can hear their constituents saying, “Wait a minute. Maybe we’re going too far here, Orville. My property taxes are going up from welfare for these out of wedlock children. And a young coloured girl died last week, terrible thing, wasn’t 14 years old. Wouldn’t it be OK if a few of them got aborted legally, like in a hospital or something? You know, early, before it’s really a baby like. The guys at the refinery don’t care much but the wife’s friends all think it’s time to change. She’s getting too old to take the Pill and wants an IUD, but the doc told her they’re illegal in Louisiana. That can’t be right. We’re not even Catholic.” (If this sounds like the 1950s, it’s supposed to. Gotta start somewhere.)

        1. In my mind’s ear I can hear the GOP politician’s answer to your constituent’s complaint:

          “Sure but we’re doing it to own the libs and prevent Democrats, who would destroy our country, from ever having power.”

          Constituents answer:

          “Ok then. Go ahead. That’s way more important to me than abortion. I don’t really get how that keeps the GOP in power but you and Trump know better.”

          1. Well, first things first I suppose. Abortion isn’t the most important public good in the world.

            I know you’re being at least a little facetious but I do agree that even in moderate or purple states (not necessarily the same thing), pro-choice state candidates will have an uphill battle if the voters worry that a vote for choice is also a vote for CRT in classrooms and mandatory affirmation mutilation for their trans-questioning children. Faced with that dilemma, even I would vote against that candidate. (I’m supporting a candidate here who would prohibit abortion for sex selection. Girl babies are not wanted in some large ethnic communities. She is the first candidate for national office in decades to breathe a word about any legal restriction on abortion.)

            The Governor of Louisiana is a Democrat, by the way. I don’t know what that means.

          1. Thanks for that news to me, Ken. You have some amazing inspiring traditions, considering the low esteem that politicians everywhere are typically held in.

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