Laurence Tribe, a Harvard Law School professor once thought to be a future nominee for the Supreme Court (too liberal, I guess), has written a comprehensive attack on the Dobbs decision of the Court—the decision that overturned Roe v. Wade. Tribe is an expert on American Constitutional law (in fact he wrote the definitive book on the subject), so he knows his onions. And his critique of the majority decision is devastating, showing that it’s not only politically based and rests on shaky legal arguments, but allso rests firmly on Christianity.
It’s a long article, and not always an easy read (Tribe isn’t a master of lucid prose), but it’s well worth perusing, for it’s quite convincing that Alito’s majority argument for overturning Roe (“there’s nothing in the Constitution conferring a right to abortion”) is bogus.
The article, despite being in the New York Review of Books, is free; click below to read it.
I’ll just put what I see as Tribe’s main points in bold below. Indented bits are (usually) quotes from the article.
The Ninth Amendment reserves unnamed rights as protected by the Constitution, and the Fourteenth Amendment protects deprivation of “life, liberty, and property without due process of law.” These together protect the right to abortion.
Here’s the Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
And the Fourteenth (section 1; the “Liberty Clause”): “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Tribe’s take:
That “the Constitution makes no express reference to a right to obtain an abortion,” a point made as though it were some sort of discovery, in no way establishes that the Fourteenth Amendment’s protection of “liberty” from government deprivation “without due process of law” excludes control over one’s own body, not to mention the course—indeed, continuation—of one’s life. On the contrary, the Ninth Amendment’s explicit instruction that the “enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” rules out any claim that the Constitution’s failure to list the right to bodily integrity among its “enumerated” protections excludes that right from those “retained by the people.”
. . . Conspicuously absent from Dobbs is any coherent legal analysis—or anything that deserves to be called “analysis” at all—of why someone’s right to avoid compelled pregnancy, involuntary childbirth, and forced parenthood is not an essential part of the “liberty” protected by the Fourteenth Amendment (and perhaps even of the freedom from “involuntary servitude” protected by the Thirteenth). As a result, it’s the Alito opinion in Dobbs, and not Justice Harry Blackmun’s opinion in Roe, that is “not constitutional law and gives almost no sense of an obligation to try to be.”
Put simply, Dobbs is a fiat issued by five justices simply “because they could.”
As for the Ninth not conferring any right to abortion,
Although many observers criticized Alito’s leaked draft opinion for failing even to mention the Ninth Amendment, the opinion as finally released was almost defiant in its dismissive treatment of that amendment’s rule of construction.
The only thing the Court says about it in Dobbs is that “the abortion right” is not itself “founded…in the Ninth Amendment’s reservation of rights to the people.” But that is a wholly irrelevant observation and confuses the category of “rights” with the category of rules about how to read a text dealing with rights. Nobody has ever seriously claimed that the “abortion right,” or indeed any substantive right, could possibly be “founded” in a rule about how to read the Constitution. The Ninth Amendment is not the “foundation” of any group of rights but a directive about how constitutional decisions about rights are to be made. Searching for rights in it is akin to searching for actual pieces of lumber in a manual on how to build a house.
And a bit more, concentrating on Kavanaugh’s decree that the court would leave each state to decide for itself, and invoking a nonexistent “right to interstate travel” as being in the Constitution:
Explaining why the Liberty Clause should prioritize, say, the freedom of speech or of religion, or the right to bear arms for self-defense, or the right to exclude the military defenders of the nation from one’s home “in time of peace” over the no less basic freedom to determine what is to become of one’s own body would be no mean task. After all, those rights are protected from infringement by the states not because the text of the Constitution requires it. The Bill of Rights restricts only the federal government. The states cannot infringe those rights because the Supreme Court has said they are fundamental rights whose infringement, like the right to abortion before Dobbs, would violate the Fourteenth Amendment’s Liberty Clause.
Particularly puzzling is Justice Kavanaugh’s insistence, in his separate concurring opinion, that the Court’s decision to let each state decide for itself whether and to what degree to protect the right to end a pregnancy will leave individuals who live in states where abortion is criminalized entirely free to travel to other states to obtain abortions without penalty. How does he know that? Because, he says, of “the constitutional right to interstate travel.” But no such right is expressly mentioned in the Constitution, any more than is the right to control what goes on in one’s own body. Both rights are at best implicit in the Constitution, not enumerated anywhere in its text. This is not to denigrate the existence or significance of the right to interstate travel, a long-settled part of what knits the states into an inseverable Union, or to undermine its protections for those helping women escape the clutches of states that ban abortion and make criminals of all those who facilitate it. It is simply to expose the glaring inconsistency in Justice Kavanaugh’s analysis, without whose vote there would have been no majority to overrule Roe.
This whole kerfuffle shows the deficiencies of “originalism”: that judgments should be made based on what’s explicitly stated in the Constitution or what would have been understood when it was written. There are simply too many things that have changed since the Constitution was written, things that could not have been anticipated by its authors.
The Court’s insistence that Roe had “no sound basis in precedent” is bogus.
Tribe:
To support the idea that Roe and the 1992 reaffirmation of its core holding in Casey had no “sound basis in precedent” and could thus be safely overruled without causing damage to the fabric of the law or undoing the web of other decisions on which people had come to rely, the Court in Dobbs simply listed a series of rights, as though it was self-evident that they bore no similarity to the right to decide whether and when to terminate a pregnancy. These included the rights “to marry a person of a different race,…to marry while in prison,…to obtain contraceptives,…to reside with relatives,…to make decisions about the education of one’s children,…not to be sterilized without consent,…and in certain circumstances not to undergo involuntary surgery, forced administration of drugs, or other substantially similar procedures,” as well as the right “to engage in private, consensual sexual acts” and “marry a person of the same sex.”
But merely noting, as the Court did, that those rights did “not concern abortion” obviously fails to establish that they are not analogous to the right to reproductive autonomy. It is thus difficult to take seriously the statement by the Dobbs majority that its repudiation of the right to abortion will not ultimately serve as a precedent to rescind some or all of these seemingly similar rights, especially given the explicit statement in Justice Thomas’s concurrence that they are without foundation and that future litigants should attack them on the basis of Dobbs.
Tribe adds that justices in the Dobbs majority have expressed opposition to other rights, such as the right to marry guaranteed by Obergefell v. Hodges, and those “rights”, too, are endangered. Though the majority opinion says that the Dobbs decision is a one-off, “limited to the present circumstances”, that’s probably not true. As the minority opinion notes, ““Either the mass of the majority’s opinion is hypocrisy (“duplicity”, as Tribe calls it), or additional constitutional rights are under threat. It is one or the other.”
The Court’s ruling that states can ban all abortion as one option is explicitly a religious view, and thus violates the First Amendment.
Tribe:
Whatever anyone might have thought in 1868, when the Fourteenth Amendment was adopted, it has since become clear that “conception,” as I wrote in 1973 when defending Roe v. Wade, is “a complex and continuous process” of cell division followed by chromosomal recombination and in no sense “an objectively definable event”:
Although none [can] deny that the developing fetus, and indeed the unfertilized ovum, represent[s] “potential human life,” and while all [can] agree that the infant at birth [is] fully and independently a human being and entitled to treatment as such, the question of when the mysterious discontinuity [is] crossed—when the embryo or fetus “bec[omes] fully human”—[cannot] be discussed in secular terms at all. In fact, the only bodies of thought that have purported in this century to locate the crucial line between potential and actual life have been those of organized religious doctrine.
The attribution of metaphysical and legal status to a developing embryo from some particular point in time represents not a discovery of an empirical datum about reality but a choice, all but invariably grounded in one or another religious tradition or teaching, about what signals the creation of an individual human soul.
And this means that state rulings that “personhood” or “fetal rights” begin at conception are also religious views and abrogate the First Amendment (remember that members of other religions have insisted that the Dobbs decision violates their rights). Here’s something Tribe wrote in 1973 to defend the decision in Roe v. Wade:
Although none [can] deny that the developing fetus, and indeed the unfertilized ovum, represent[s] “potential human life,” and while all [can] agree that the infant at birth [is] fully and independently a human being and entitled to treatment as such, the question of when the mysterious discontinuity [is] crossed—when the embryo or fetus “bec[omes] fully human”—[cannot] be discussed in secular terms at all. In fact, the only bodies of thought that have purported in this century to locate the crucial line between potential and actual life have been those of organized religious doctrine.
And what he writes now:
It is little wonder that justices who view every instance of conception as a holy event would be inclined to treat the “moment” a new life is present in a woman as the moment from which any state is entitled to criminalize the termination of that life. It is but a short step from such a view to the dogma that the “moment of conception” marks the point at which any state may be constitutionally obligated to treat that life’s termination, whatever the reason, as a terrible crime. The Dobbs “compromise” making it a matter for each state to determine is no more consistent and stable than the 1857 Dred Scott compromise making the status of slaves and their descendants a matter for states to decide.
It is a fair inference from the First Amendment’s ban on “establishment of religion” that the Constitution should not be hijacked by any primarily religious movement or by a political movement that exploits religion as a Trojan Horse. Yet Dobbs followed—and embodies the approach of—a series of Supreme Court decisions systematically eroding the sometimes-maligned “wall” of separation between church and state. The current Court’s unmistakable determination to breach that barrier to government endorsement of particular religious beliefs reached its apex this past term in a ruling that treated a government employee’s “proselytizing on government property during a public school function” as “private, personal and quiet” when it was anything but, and was indeed highly coercive.
The theocratic movement to advance religiously based governance—the antithesis of genuine religious freedom—has installed as the law of the land the essentially unreasoned position advanced in Dobbs, replacing the compromise between life and liberty embodied in Roe and Casey with the absolutist claim that the presence of a potential life instantly and automatically transforms a woman’s body into a vessel that governments are free to regulate as they see fit. This is unlikely to be the final step on the treacherous path the Court has chosen.
These three arguments in tandem (particularly the last one) make a compelling case that not only is the right to abortion not specifically in the Constitution, but didn’t need to be to be Constitutional, fpr similar rights have been affirmed as Constitutional despite their similar status to the “right to abortion.” As a strict First Amendment person, I also find the religious argument compelling. The Dobbs decision implicitly affirms a religious view. That view is not unique to Christianity, but it’s still religious, and privileging religion over nonreligion is itself unconstitutional.
The Dobbs decision was wrong from the get-go, and Tribe’s article is the most cogent one yet to show us why. Given the youth of the conservative justices, it’s likely that equally wrong decisions will follow, giving bogus Constitutional justification.
At the end, Tribe mentions a speech recently given by Alito mentioning the notion that “religious liberty is worth special protection.” Nope, it’s not, for secular liberty, with its philosophy not based on the concept of a “soul,” is worth just as much protection. One cannot base laws on ideas that are manifestly bogus, like a soul, and rest solely on unevidenced religious views.
The solution? Tribe notes that he reluctantly thinks that the court should be enlarged to thirteen judges, but he also recognizes that this is not politically feasible. As for me, I see no solution at all. Mitch McConnell, as well as RBG, who refused to retire, have produced this shameful situation.
h/t: Darrell
Fantastic piece, thank you for sharing. I’ll keep saying it too – autonomy is enough.
I have a few thoughts:
1. Dobbs is the inevitable result of the GOP’s selling out to the Evangelicals. Anyone surprised that this Court overruled Roe has not been paying attention for decades.
2. This is also the inevitable result of Donald Trump’s election. The dunce was provided a list of Supreme Court nominees that was approved by the Evangelicals containing only judges that would surely overrule Roe. Indeed, Amy Barrett’s SOLE qualification was that she is a religious wingnut that would vote to overrule. Compare her qualifications to RGB; it makes me want to puke.
3. I am hopeful that this decision awakens people to the realization that who gets elected President affects the future for decades. Congress is so dysfunctional that in essence the Supreme Court is our national legislature. I am also hopeful that the decision awakens voters in the middle who see just how radical and regressive the GOP has become.
BTW, I am pretty sure that we used Tribe’s Con Law textbook and casebook in law school back in 1982.
Republican presidents have appointed 15 of the last 20 SCOTUS justices. Seven of the first ten of these appointees underwent a distinct leftward drift while on the Supreme Court bench — probably most notably with David Souter, a little-known jurist Poppy Bush plucked off the New Hampshire Supreme Court. These seven justices helped usher in Roe v. Wade and authored the opinion that upheld Roe‘s central holding, Planned Parenthood v. Casey.
Since their disappointment with the Souter appointment, right-wing activists have been insistent that Republican appointees satisfy certain litmus tests — a narrow range of academic pedigree, clerkships for conservative judges and/or justices, career time in Republican administrations or silk-stocking law firms, then field-testing on the lower federal appellate bench (usually just long enough to ensure that they’ll stay true to their right-wing bona fides, but not so long that they develop a track record that could lead to awkward questioning before the senate judiciary committee at their confirmation hearing), followed, finally, by vetting and re-vetting by ultra-conservative legal organizations such as the Federalist Society.
This was the case with the two Bush, Jr., appointees in the 2000s (Roberts and Alito) and has been the case in spades with the three Trump appointees (Gorsuch, Kavanaugh, and Barrett). These five justices, and holdover Clarence Thomas, have given us the six-justice ultra-conservative supermajority on the Court today.
Tribe has provided a good articulation of logic that should be blindingly obvious to any rational person. But with the religious there is no rational thought.
It should be morbidly entertaining to see what counter arguments emerge to justify forthcoming prosecutions of doctors and of women trying to flee their states.
Years of watching cdesignproponentsists soldier on, despite repeated dissection of their technical errors and unconstitutional religious roots, makes me pessimistic that any counter arguments will be content-based. Nor will the theocrats give a flying rat’s ass about that fact. This is an exercise of naked power, and the Democrats must fight it that way.
Gee I wish I knew what that way was.
I agree that no matter how correct and well argued an analysis is, it won’t convince a true believer.
Something that has long been very noticeable to me is the differences between what a liberal, such as myself, considers a “devastating take-down” versus what a trumpist / theocrat considers to be one. On the one hand you have facts and other evidence, with references, and a step by step well reasoned argument that makes sense. On the other you have unevidenced claims, intentional omissions and straight up lies that basically amount to playground level name calling.
But I do think take-downs like this Tribe essay are very valuable. Not only do they help “our side” to clearly understand the issues and dangers but they can also inspire some of those on the fence to choose our side and inspire some of those who normally can’t be bothered to vote to do so this time.
No prosecutions of doctors will be necessary. Abortion ceases to be a viable business as soon as it becomes illegal. Abortion care is a heavily feminized medical specialty. No female MD is going to mother her children from a prison cell, no matter how much she believes in social justice and women’s autonomy. (She’ll also lose her licence and her livelihood.). Men who are still doing abortions will find there’s not enough money in it in an anti- state, given the current abortion demographic, to justify the new risk. They’ll decamp to a pro- state. Lucrative illegal, medically safe abortions on the QT might still happen along the underground trust networks of the well-off and well-connected, as they did before 1973. But these women will find it easier and cheaper today to hop on a plane.
I’m glad you mentioned RBG in the same breath as Mitch McConnell. While I certainly don’t believe she deserves as much blame as McConnell, her arrogance was instrumental in this and will be in other possible wrong decisions of the court. I hope other justices take note of her tragic error and act with humility.
Let’s not forget the Republocans blocking of Obama’s pick on spurious grounds, and how Democrats rolled over. Then, in a similar situation, Trump appointed his last minute picks and the previously cited Republican principles went overboard — of course, who knew they were duplicitous hypocrites.
I read Prof. Tribe’s TNYRB piece yesterday. It’s nothing if not comprehensive. It reads in part like a précis of a 2L Con Law course.
Between his scholarship and his advocacy before SCOTUS, Tribe holds a unique spot in the modern legal firmament.
Interesting that those advocating for expanding the number of justices assume that will change the odds in favor of their worldview. Don’t they wake up screaming in the night with a dread vision of a massive pile-on of judges that despise it?
From your (metaphoric) lips to the rational equivalent of God’s ears.
I too am pro-choice, militantly so, and abhor the possible loss of a woman’s right to control her body, especially early in her pregnancy. But Lawrence Tribe, brilliant though he is, is not my constitutional scholar. That designation belongs to Akhil Reed Amar, of Yale. Dr. Amar has an incredible intellect and is an excellent communicator. In March of this year he tackled the same issue when the Dobbs’ decision was leaked. Some excerpts from his essay:
“ The End of Roe v. Wade
For a constitutional scholar and pro-choice Democrat, there are reasons to endorse the leaked draft opinion overturning the 1973 abortion decision—and to see it as vindication for a range of liberal priorities.”
“ In Roe, the Court did not even quote the constitutional language it purported to interpret in handing down its ruling—the Due Process Clause of the 14th Amendment. That clause holds that the government may not deprive any person of “life, liberty or property, without due process of law”—that is, without fair legal procedures, such as impartial judges and juries, defense attorneys and the like. The Texas abortion law at issue in Roe in fact provided for fair courtroom procedures, which made the decision’s “due process” argument textual gibberish.
Constitutional history also cut hard against Roe. When Americans adopted the 14th Amendment in the 1860s, almost no one thought it barred laws against abortion. Virtually every state back then prohibited abortions. Roe likewise ran counter to state laws still on the books almost everywhere in the 1970s. The opinion clumsily cited various earlier precedents involving “privacy” rights related to contraception and erotic expression, but in a devastating concession, the Roe Court admitted that the presence of a living fetus in abortion scenarios made the matter “inherently different” from all previous privacy cases. And Roe said nothing, amazingly, about the relationship of abortion rights to women’s equality.”
Dr. Amar goes on to explain why the draft opinion did not threaten contraceptive or gay rights and concludes with “ In short, I am a Democrat who supports abortion rights but opposes Roe. The Court’s ruling in the case was simply not grounded either in what the Constitution says or in the long-standing, widely embraced mores and practices of the country. Perhaps I’m wrong in thinking that, and perhaps the Dobbs draft is wrong too. But there is nothing radical, illegitimate or improperly political in what Justice Alito has written.
—Mr. Amar is a professor of constitutional law at Yale and the author, most recently, of “The Words That Made Us: America’s Constitutional Conversation, 1760-1840.”
Appeared in the May 14, 2022, print edition as ‘The End of Roe v. Wade A Precedent With Weak Constitutional Reasoning’.
https://akhilamar.com/wp-content/uploads/2022/05/The-End-of-Roe-v.-Wade-WSJ-1.pdf
Thanks for the links; I’ll have a look at the essay, which I didn’t know about.
Here is a nice podcast Prof. Amar did with Bari Weiss:
https://podcasts.apple.com/us/podcast/the-yale-law-professor-who-is-anti-roe-but-pro-choice/id1570872415?i=1000560474755
Akhil Reed Amar is the Sterling Professor of Law and Political Science at Yale university, where he’s been teaching constitutional law since the ripe old age of 26. He is the author of more than a hundred law review articles and several award-winning books. Amar’s work has been cited in more than 40 supreme court cases—more than anyone else in his generation—including in the shocking draft opinion by Justice Alito that was leaked to the press last week.
What may be confusing about that is that Amar is a self-described liberal, pro-choice Democrat. So why is Alito citing his work in an opinion to overturn Roe? Today, Amar explains why he, in fact, agrees with Alito, what overturning Roe might mean for the country, what the leak says about the culture of American law, and what supporters of legal abortion, like himself, should do now.
There is a valid defense of Dobbs that it should be up to Congress to codify abortion protections, not up to the courts to interpret past precedence for an issue without clear precedence. But I do think that Tribe made good points in how previous amendments can apply to abortion rights, and that the Court majority did operate under the premise of religious belief.
“the Roe Court admitted that the presence of a living fetus in abortion scenarios made the matter “inherently different” from all previous privacy cases.”
Not if you are Jewish!
http://www.inquirer.com/opinion/abortion-rights-roe-v-wade-judaism-20220504.html&outputType=app-web-view
“The Constitution does not allow for that.”
Here we have the bitter fruit of enumeration of rights. The Constitution ought to have simply repeated the Foundation Principle (I like the formulation of George Mason, does not invoke God and specifically says “property.”)
“That all men are by nature equally free and independent and have certain inherent rights, of which they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.”
George Mason, The Virginia Declaration of Rights
… and then The Constitution should say “government has no power except what is expressly and specifically enumerated in this document, as follows …”
Enumeration of rights feeds the old European ethos that there are rulers, but we’ve yanked away from their grasp this list of things common citizens can do.
Instead, the American “First Principles” approach: government is only a small, faithful servant, while the citizen is a sovereign individual, possessing all rights as elicited in the Foundation Statement.
Those of any alternate collectivist or theist worldview would certainly be foiled by this, left, right, up, down.
Yes. The purpose of the Constitution is not to grant rights but to limit government. The Ninth Amendment exist because the framers feared enumeration in the Bill of Rights would foster the wrong idea, i.e., that rights not enumerated didn’t exist. The Fourteenth insures that state governments, don’t have the power to negate our fundamental rights either.
And getting none, I assume, since US citizens now have the shortest lifespan on the America continent (apart from Haiti). Which nation building strategy is the best is an open question of course, but I suspect libertarianism/anarchism of minimal or no state is not a good one. (But is the non-minimal state “collectivist”?)
But FWIW, on the life definition issue EU has taken the “life starts at conception” view. I don’t like it – the process definition of Tiribe is better – but then again we have free abortions (and so minimal abortion frequencies) in several nations.
“America continent ” – American continent.
“Tiribe” – Tribe.
I’ve argued for decades that abortion cannot be divorced from religious or spiritual belief, and that it is (or should be considered) a First Amendment issue.
Re Ruth Bader Ginsberg: Honestly, I blame the internet and social media for her dangerous, foolish intransigence in refusing to step down.
She, like so many of us, was besotted by a social-media-crafted image of herself— in her case, as the “Notorious RGB”; I’m embarrassed for whoever came up with that and anyone who thought it was “cool”—and what eventually became something like blind worship among people who had been persuaded by that and, natch, a movie.
In an earlier era, military sharpshooters, Supreme Court justices and the like were not dragged onstage as “heroes” and “icons” by hooting fanboys and -girls who were, of course, mostly virtual signaling (whatever the flavor of their favored “virtues”) and yes, trying to be more “interesting” people.
That the accidental icons then lapped up the attention and began to believe their fans’ slobbering adulation is perhaps not surprising. But it’s disappointing, nonetheless.
I wrote about the problem of Justices becoming celebrities and then playing to their fan base a few years ago — Ginsburg and Scalia were the worst, but they were just the tip of the iceberg: https://ilr.law.uiowa.edu/print/volume-106/our-kardashian-court-and-how-to-fix-it/
One problem with Roe that I don’t see discussed often is that the ruling seemed to be about abortion specifically, and not any general concept of bodily autonomy. We have nothing close to a right to do what someone may wish to do with their body reflected on our laws. There are numerous examples of it, and people aren’t spilling out in the streets to decry them.I am on the side of more bodily autonomy in all things, but the pro-choice side has always been inconsistent on the reach of those laws.
Thanks Jerry. “As a strict First Amendment person, I also find the religious argument compelling. The Dobbs decision implicitly affirms a religious view. That view is not unique to Christianity, but it’s still religious, and privileging religion over nonreligion is itself unconstitutional.”
Indeed, and when abortion rights were last at risk back in 2006, I defended them on First Amendment grounds in an article for the Humanist Magazine, https://naturalism.org/applied-naturalism/social-policy/faith-in-hiding-is-there-a-secular-case-for-banning-abortion
And in 1992 Peter Wenz wrote a book “Abortion Rights as Religious Freedom” making the same argument in more detail, reviewed at
https://naturalism.org/resources/book-reviews/abortion-rights-as-religious-freedom
Good to know that Tribe is arguing this as well; let’s hope it gains traction given that Roe v. Wade is now history.
After Dobbs, some communities are suing for abortion rights on religious freedom grounds:
https://www.reuters.com/world/us/florida-clergy-lawsuits-say-abortion-ban-violates-religious-freedom-2022-08-02/
https://www.reuters.com/world/us/florida-abortion-ban-violates-jews-religious-freedom-lawsuit-says-2022-06-14/
Nice that Tribe has supplied them with some astute arguments.
Tom, Thou shall not kill is indeed a religious tenet that underpins laws in most or all states. Does that make those laws illegitimate?
These were rules that long antedated Christianity, yet you maintain that refraining from murder is a view that comes from religion. Yes, well, it’s part of the Ten Commandments, but those just embody ideas of secular morality.
I think Laurence Tribe is spot on when he combines the 9th and 14th Amendments to argue that the right to privacy definitively includes bodily autonomy.
But this religious freedom argument, I just don’t see working. Supreme Courts of yore have always interpreted the no establishment of religion clause to mean that the government can neither favor or disfavor any particular religion, or religion in general. And rightly so. If “these beings are persons” is a matter of dispute between different religions and/or the areligious, how can “these beings are not persons” not be?
For comparison, suppose the issue were not abortion. Suppose someone creates a very advanced AI and there is a political argument over the AI’s personhood. Suppose (and this is by no means a stretch) that different religions held strongly opposed views about it. Would you make the same argument?
“If “these beings are persons” is a matter of dispute between different religions and/or the areligious, how can “these beings are not persons” not be?”
Agreed, in which case none of these views should be forced on anyone as a matter of laws that coerce behavior concerning unenumerated bodily autonomy rights. Instead, allow the individual’s view to control when there’s disagreement about personhood at conception and later embryonic stages, which is what Roe and Casey both allowed.
I would just like to point out that, historically, men have not had a great deal of bodily autonomy. Just think about what happens when you are drafted.
That’s a complete non sequitur. You could as lief argue that there’s no right to bodily autonomy because there are laws that require people to wear seatbelts. Plus, you do realize, don’t you, that US conscription laws expired in 1973 (coincidentally, the same year Roe v. Wade was decided)? If and when a draft is ever reinstituted, I’m pretty sure woman will be as subject to it as men. (That likelihood was one of the arguments patriarchal rightwingers made against passage of the proposed Equal Rights Amendment in the 1970s.) What relevance does a draft in time of war have to a woman’s exercise of reproductive freedom?
This “but men are subject to the draft” assertion in opposition to women’s rights is one I’ve heard advanced before only by obtuse MRA-types.
It’s not a non-sequitur, because it demonstrates that a law that is supposed to be an expression of a general principle in reality has numerous examples where not only is that principle not expressed but generally widely ignored and even opposed. Men are still subject to the selective service system. How often do you hear non/libertarians talk about how that is a violation of our inherent freedoms?
Here’s Lysander’s sequitur as I see it. Without specifically referencing the American selective service system, a wartime draft is raised chiefly to replace battle casualties in the infantry. No matter what role women might be called to play in a future conscription, they are not going to be drafted into the sharp end of the infantry under any circumstances. First, they are not physically strong enough—only rare, highly motivated volunteer women succeed as grunts. There is nearly always some other military trade they will be better at. Second, no country will risk heavy loss of life among its irreplaceable wombs by putting them in harm’s way so long as expendable testicles are available. A prudent military that was ramping up in a crisis would try to avoid deploying even volunteer women at sea on warships.
Men must keep women out of the fight. Not out of chivalry but because the women will be needed to repopulate the nation after the fighting stops, and the famine and epidemics subside. (My wife’s mother was specifically told the first bit by her priest. She obliged by having nine children.)
When the Russian Army was pouring over the border, no Ukrainian man got to say he had an inalienable right to his bodily autonomy and was going to exercise it by getting on the next train to Poland. The men whose friends and sons and brothers died fighting for the nation of Ukraine will be within their rights to prohibit their women from having abortions, (unless they are Russian fetuses.) That’s just the way it is. Inalienable rights are a cheque that comes back NSF.
None of this need restrict women’s civil and political rights generally and fortunately we don’t need to go to the wall with swords and axes to repel the Vikings very often anymore. Under normal usual circumstances, in most times, places, and cases society should allow women as a matter of utilitarian prudence to have abortions as desired. A liberal approach makes most of us better off. But there can’t be an inalienable right to one, any more than there can be an inalienable right to pacifism, or to your property. Rights are contingent.
I think Tribe’s argument fails.
The Fourteenth amendment says that “nor shall any state deprive any person of life, liberty, or property, without due process of law”
Isn’t creating a state law and then prosecuting people fairly under it “due process”? If not then no law that sanctions a prison sentence or capital punishment is constitutional.
Texas made a law and followed due process while doing so and as long as people are prosecuted fairly under it, it is not problematic under the constitution.
If you narrowly interpret “due process” as just the judicial process of determining if somebody has broken a law, then, yes, the Texas law is unconstitutional but I think the wiggle room is there for the right wingers. It comes down to poor wording in the constitution as usual.
The other problem is what constitutes a person. The fourteenth amendment is pretty clear, the person must be born or naturalised in the United States. That obviously discounts all foetuses. However, the fourteenth amendment does not confer a right to life, it assumes it already exists. There needs to be some law or constitutional amendment that defines which entities have all the rights protected by the constitution and which don’t. Currently, the anti-abortionists will claim a conflict exists between the foetus’s right to life and the mother’s right not to be forced into pregnancy (assuming they acknowledge the latter at all). If some cut off point had been defined in law, the pro-choice people would be in a much stronger – probably unassailable – position. But, no, they’ve been relying on a judicial decision that everybody knew was always under threat.
Tribe reminds us of an amazing legal fact: “The Bill of Rights restricts only the federal government.”
If I interpret Tribe correctly, the Fourteenth Amendment is the only tool that the Supreme Court found to correct the serious error that the founders of the United States made by forgetting that state governments, not only the federal government, could also abuse individuals.
The term “compelled pregnancy” seems imprecise. Pregnancy is a natural consequence of sexual intercourse and, except in the case of rape, is not compelled. A woman is always free to reject pregnancy. She may choose whether and when to have sex. She may choose contraception. Unavailability of abortion has nothing to do with forcing or obliging her to become pregnant.
If we’re going to be precise, “compelled conception” should be separated from “compelled pregnancy.” A woman is normally free to reject conception through the means you describe, with rape being an example of when conception is compelled. But that entails that the choice on whether or not to continue to pregnancy involves the availability of abortion. Not all conceptions result in pregnancy; the two should be separated.
There is also a great deal of difference between stages of abortion, early abortion is not at all ethically problematic but as we get closer and closer to birth the ethics become less clear cut and the ethical tradeoffs then become more pronounced.
Note: To avoid being jumped on I’ll say that I am in favour of allowing abortion even into late pregnancy. The above is because I find the the absolutist argumentation and framing of Tribe and others around bodily autonomy to be unconvincing and rather dogmatic.
Conception is not a scientific term. Speaking strictly scientifically, pregnancy does not occur until implantation, but people don’t generally speak strictly scientifically in order to speak precisely. The idea that the unavailability of abortion is “compelled pregnancy” a la “The Handmaid’s Tale” is absurd. Prohibiting the means of termination of a pregnancy is not the same as compelling a pregnancy.
Yes it is. You can pick nits about the difference between “compelling to get pregnant” and “compelling to remain pregnant,” but that’s simply splitting hairs.
Pregnancy is a condition. Being compelled to remain in that condition is a perfectly valid interpretation of the phrase “compelled pregnancy.”
It’s not the unavailability, but the withholding. The Tuskegee Experiment was begun before there was any known treatment for syphilis and consisted of observing the natural progression; it was condemned because it continued even after remedies became available. The men were thus compelled to let nature take its course.
If a women is legally constrained from getting an abortion then she is not “always free” to reject pregnancy. Unavailability of abortion has plenty to do with it. If abortion is available to her she can decide to not remain pregnant. If abortion is not available then she has no choice but to remain pregnant even if she has decided she doesn’t want to. And in more and more cases, even if the reasons she doesn’t want to include medical reasons and rape.
Given that the five magistrates who signed the Dobbs decision are staunch Catholics, it should be remembered that one of the dogmas of the Catholic Church holds that each human has an immortal soul separable from the body.
Ensoulment and personhood are different concepts. Personhood can be understood in purely secular terms.
The Pro-life Reply to: “A Fetus Is NOT a Person”
https://m.youtube.com/watch?v=sCN8M_PG-x8&feature=youtu.be
And yet in real life those who are motivated by secular views to consider a blastocyst a person are perhaps as much as a rounding error compared to the number of those that are motivated by religious views.
No 17 below is in response to your comment, Bunny.
The term “soul” can be understood in two different ways: a) as an immortal element separable from the human body; and b) as a neuronal function that cannot exist apart from the body. The first way of understanding the soul is characteristic of magical thinking; the second form is characteristic of scientific thought.
Both “ensoulment” and “personhood,” whether religiously based on not, involve unevidenced metaphysical intuitions.
I respect people’s right to hold such unevidenced metaphysical intuitions. Which is why I’d take it to the streets to prevent a pregnant woman who does not want one from being forced to undergo an abortion.
But people who hold such unevidenced metaphysical intuitions have no right to foist them on others who do not share them, including by prohibiting, under penalty of law. women who wish to obtain abortions from doing so.
Ken, if I’m a voter who believes in God and the ensoulment of fetuses—I’m not, by way of throat-clearing—, you have no right to tell me I can’t lobby my legislator to pass a law reflecting that belief. All you can do is scrutinize the law itself, as passed, to see if it respects an establishment of religion in a way your First Amendment prohibits. But nothing restricts the citizen’s freedom to advocate in any forum for any view he believes in, including deeply religiously-motivated ones that seem like sinister fairy tales to atheists. That’s politics.
Imagine if you will this conversation:
Pro-lifer: I believe abortion should be illegal because it’s the murder of a human child of God with a soul.
Atheist: You can’t say that because it’s a religious argument in a secular realm.
Pro-lifer: OK. How’s this? “I believe abortion should be illegal.” Satisfied?
Atheist: Well, no, because your belief is religious on its face.
Pro-lifer: How so? Besides, I don’t have to convince you it’s not religious. I only have to convince a majority in my legislature that it’s a good idea.
If the law that’s passed makes no mention of souls and just says, “Every person who performs an abortion [defined herein] is guilty of an offence punishable by . . . “, how is that on its face a First Amendment violation?
Sure, Leslie. USians are entitled under the First Amendment Free Speech clause (and the clause guaranteeing the right to Petition the Government for a Redress of Grievances) to advocate for any damfool law they want — just as fee, that is, to advocate for anti-abortion laws as they are free to advocate for a one-child policy that would compel women who’ve had their one allotted child to undergo an abortion.
I think both such types of law should be deemed unconstitutional under the Due Process clause of the 14th Amendment (which was the point of my comment above), though I recognize that the Dobbs Court decided this one against me, at least for the time being. Some rights are inalienable, which is to say, beyond the reach of majoritarian rule. I think decisions regarding reproductive freedom should be included among such rights.
(BTW, the “original intent” of the First Amendment’s Establishment clause was to prohibit the federal government from establishing a national religion, leaving the states free to establish their own state religions. After all, the Amendment’s opening clause states that “Congress shall make no law …” Justice Clarence Thomas, for one — and, perhaps, one or more of the recent Trump appointees — believes that this should still be the law.)
I think we agree that in the political arena, a voter’s opinion does not get disqualified from consideration by the legislature just because it is inspired by religion, or by communism, or by whatever dam’ foolishness. Opponents may feel that those with reprehensible world views are trying to force their specific opinions on the rest of us but that is simply to fear that what you had hoped was a legislative majority against is now a majority for, and you have to retreat into the redoubt of minority rights to thwart the measure’s adoption or enforcement. If you can’t find an enumerated right you have to fall back on unstated inalienable ones. Which, in the case of abortion, the Dobbs Court failed to find.
I’ve argued elsewhere, in #12, that reproductive freedom cannot be an inalienable right. Even as your servant and not your ruler, Leviathan might, in extremis, need to conscript the wombs of the women just as he had conscripted the bodies of the men and the property of all to repair a national calamity. I confess to a blind spot that you may fairly feel makes back and forth unproductive. All rights against the Parliamentary majority, even the enumerated ones, are contingent in Canada. I can’t fully grasp how unenumerated inalienable rights would even work even though their existence is noted in your Ninth Amendment.