I am opening a thread on the Roe vs Wade Supreme Court decision. What will happen next? What should happen next – especially on the legislative side? Where should activists concentrate their efforts? Where are they concentrating their efforts already? What is being organised at grassroot level and which projects look most promising on the short/medium run (i.e. where should one send their money is one has some to send)? Which pieces have you read and think are worth sharing?
I will do my best with moderation but cannot be on it exclusively* all day, so bear with me.
{ 62 comments }
MisterMr 06.27.22 at 11:56 am
Questions:
Could the Dems actually write a federal level law that says that abortion up to X day from conception is a right, or doeas the ruling prevent them to do that?
In case the Dems can’t act directly through the federal government, can Biden change the composition of the supreme court? (My understanding is that he notionally could, but he won’t do it because it is deemed politically unacceptable).
Could a super huge victory of the Dems in the midterms or this is simply out of reach of the government/legislature?
Chris Bertram 06.27.22 at 12:36 pm
I think there’s very little this SC isn’t capable of. We had the overturning of a NY gun law from 1911 followed by Roe v Wade in two days and next week they are likely to make it much harder for the Federal government to protect the environment and to regulate GG emissions. Clearly Thomas also wants to go after gay rights and leave them to the states.
I would worry that they will also take the opportunity to restrict citizenship/nationality by overturning USA v Wong Kim Ark from 1898, possibly with some retrospective effect. This might come about in various ways: a state such as Texas might refuse to recognize a so-called “anchor baby” as having US nationality or the Republicans might introduce a restrictive nationality law that was then subject to review but upheld. The object of the exercise would be to restrict citizenship to “real Americans” (on a nativist view of that) together with people allowed to naturalize. Many would be left stateless.
On abortion, I imagine the Republicans will now go for a country-wide ban and it is not impossible that this could be the result of a future ruling by the court according rights to foetuses or whatever. In the interim, red states will try to prosecute people traveling to other states or overseas, those who assist them, and providers in other states who might then face arrest if they enter the wrong jurisdiction. No way this ends well. It might lead to secession, or to attempts at secession thwarted by the AR-15 wielding mob.
Miriam Ronzoni 06.27.22 at 1:11 pm
@Mister Mr: the answer is basically it’s possible, but really hard – I’d have thought that, without an appeal to the constitutional, this would be a state by state decision and not a federal one but apparently not necessarily:
https://www.bbc.co.uk/news/world-us-canada-61311966
https://www.washingtonpost.com/politics/2022/05/04/roe-overturned-congress-abortion-law/
So, the answer from these pieces, and others I have read in the menatie seems to be: it is not technically impossible, but very unlikely to succeed.
Miriam Ronzoni 06.27.22 at 1:13 pm
Also, the shift needs to change, from “privacy” to a sex-based right proper:
https://www.theguardian.com/commentisfree/2022/jun/26/women-must-be-allowed-to-defend-abortion-as-a-sex-based-right
CarlD 06.27.22 at 2:27 pm
It was interesting to me that the dissent (as reported, I haven’t read the whole thing) didn’t really try too hard to defend the constitutional reasoning of Roe. Right to privacy is a bit of a kludge at best, especially where reproduction is obviously a matter of critical public interest, so with Roe gone it seems good to think about other ways to get the constitution and policy preference to line up.
Given the question of when life begins can’t really be settled scientifically because it’s a process, it seemed to me the establishment clause of the first amendment would be more directly on point. I know it’s often discussed about marriage and trans policy as well, that objections have to boil down to religious prescription. I’ve seen a couple law review notes playing with this approach for abortion but nothing much in mainstream legal discourse. Is there some reason the establishment angle is disfavored?
steven t johnson 06.27.22 at 2:33 pm
MisterMr@1 asks three questions. To the first, the Ninth Amendment, part of the Tenth Amendment. the Thirteenth Amendment and the Fourteenth Amendment together establish that all people have rights not enumerated and the federal government is legally bound to observe them. It is not, curiously enough, clear that the federal government has the parliamentary supremacy to declare a right. The implication is that only rights decreed by the federal government exist. This was an argument against the Bill of Rights, a powerful objection meant to be solved by the Ninth and Tenth Amendments.
Dobbs is a false judgement that simply ignores the constitution and writes its own law. Plus of course, the current sacred arrangement where the minority can block legislation provides sufficient practical obstacle. In the past, the Democratic Party, as a coalition of conservatives and sufficiently moderate social liberals has never been able to be united enough to carry out such a dubious project. The real issue is how to rein in a Supreme Court that is openly violating the Constitution. They have their excuses, primarily “originialism.” But all originalists are liars, either on their own initiative or by ventriloquism. There were calls back in the day to “Impeach Earl Warren!” But that was then and this is now, and besides, one standard for the good guys and one for the bad guys is not a double standard, it’s standing up for God. (Yes, I disagree but my opinions are not even respected much less shared.) All parties, from liberal to cryptofascist want a judiciary that can ignore the majority of the people. That’s supposed to be the definition of a free government, called the ability of justice to defy the mob.
To the second, Biden does not want to change the Supreme Court’s composition. He does not want to defeat the Republican Party, either. Judicial activism in the defense of property is like Barry Goldwater’s famous declaration that extremism in the defense of liberty is no vice. The only politician in the mainstream (sort of) to have even given lip service to modifying the Supreme Court was, I think, Buttigieg…who of course is completely unacceptable, though the reasons given will vary.
To the third, the midterm elections have already taken place, in the money primaries, and the Democratic Party has conceded defeat and turned sharply right, as the paymaster wish. At this point, winning seats would be more of an embarrassment than an endorsement. Every political analysis that starts with the premise that the Democratic Party is somehow the left is completely flawed.
Christ Bertram@2 is correct, as the Republicans are already trying to interfere with other states’ rights to have their own abortion rules. Originalism is an excuse, so the “full faith and credit clause” in Article IV of the Constitution will simply be ignored, if necessary. Ditto the birthright citizenship explicitly spelled out in the Fourteenth Amendment. I have no idea who’s going to actually be seceding. The picture to me looks like “middle class” suburbs and rural bosses wanting to destroy the dens of iniquity called cities. It’s like the good old days when William Jennings Bryan threatened to starve the cities and leave them with grass growing in the streets.
Lastly, the suggestion that rights be based on sex really do not have any warrant in the Constitution. Until the Civil War amendments, the only distinction in persons officially made was to persons “bound to service” and minors. And the Nineteenth Amendment rules out distinction on grounds of sex, albeit “only” on suffrage. The real problem with “privacy” is that it is an unenumerated right and the Dobbs ruling terminates unenumerated rights. Sex-based rights are both unenumerated and constitutionally questionable as an unjustified distinction of persons.
Chris Bertram 06.27.22 at 3:23 pm
@miriam in that article Sonia Sodha is using this judgement as an excuse to attack trans people and their allies, something she has a history of. Don’t get take in.
Brett 06.27.22 at 4:19 pm
Any Democratically-dominated states that don’t have explicit protections in law for women’s reproductive rights need to pass such legal protections, and also sanctuary protections both for women coming from other states to get abortions and groups and persons discretely helping those women to get them.
For states that aren’t democratically dominated, you can try to reverse that in elections. But if that’s not possible, the next best step might be to try and expand women’s reproductive rights through referendum. That’s been done before on Minimum Wage law where the state government refused to do anything.
Mike Furlan 06.27.22 at 4:30 pm
In 1860 about 40% of the popular vote went to the anti-slavery party.
With some exceptions, these were all white men.
In 2022 about 40% of white men will vote for the anti-misogyny party.
The question is, what will the pro-misogyny party do to push the majority of white men on to the right side of history? Our Fort Sumter moment of January 6th wasn’t enough.
Or maybe the problem is that Joe Biden is imitating James Buchanan?
Anders Widebrant 06.27.22 at 5:56 pm
Jia Tolentino is as usual essential to read, on the likely shape of anti-abortion law enforcement to come:
https://www.newyorker.com/magazine/2022/07/04/we-are-not-going-back-to-the-time-before-roe-we-are-going-somewhere-worse
I don’t think that will be a sustainable regime, but I have been too optimistic about America before.
Miriam Ronzoni 06.27.22 at 7:28 pm
@Chris agree that the anti-trans gloss is unnecessary, but I think she is right that privacy is too fragile a ground and that it must be construed as right of people who can bear children to control what happens to their bodies. AOC uses a much more inclusive language but she has been making the same point.
Miriam Ronzoni 06.27.22 at 7:30 pm
Sorry more than unnecessary, of course, problematic. But you see what I mean. It’s the only piece I could find explicitly making the case for not trying to resuscitate Roe vs Wade but going for a more robust and constitutive ground for the right instead.
lathrop 06.27.22 at 7:39 pm
@Chris Bertram – Sonia Sodha makes no mention whatever of trans rights, the key protections recently extended based on sex in the Bostrom case.
SamChevre 06.27.22 at 8:06 pm
One thing that would seem helpful from a lobbying/advocacy perspective is a stronger right to send anything legal and safe via mail, rather than bootstrapping the mail into a tool for enforcing state laws. A compromise that ensured that abortifacients can be mailed, and tobacco can be mailed, and so on–and that states can investigate their own citizens, but that subpoenas to out-of-state entities must be limited to the specific citizen being investigated–would ensure that at least medication abortions remained available everywhere.
John Quiggin 06.27.22 at 8:56 pm
Assuming (as economists like to do) a reliable Dem majority, the answer is pretty simple. Scrap the filibuster, then pass federal laws overturning both Dobbs and the concealed carry case. If the SC accepts a challenge, appoint enough Democratic judges to ensure it’s overturned.
The first big question is whether this issue, combined with the exposure Trump insurrection, will reverse the par outcome for the midterms which is a big Republican win. The second is whether Biden and the Dems will bite the bullet. I’m actually more pessimistic about the first part.
Without waiting for the midterms, if Collins and Manchin were seriously angry about being lied to, they could agree to a carve-out from the filibuster, and Congress could legislate Roe v Wade right now.
John Quiggin 06.27.22 at 9:06 pm
@1 There isn’t a majority for court expansion yet, but if the SC rejected the outcome of a (hypothetical) Democratic win in the midterms, it would emerge, I think.
Miriam Ronzoni 06.27.22 at 9:20 pm
@lathrop I think Chris refers to passage: “We forget at our peril that the patriarchal oppression of women is heavily rooted in our reproductive systems and that equality cannot be achieved without recognising that women are a sex class who need specific rights, to abortion for one, quite apart from those accorded to men. Yet even as conservative justices write that banning abortion does not amount to sex discrimination, “women” has become an offensive and exclusionary word to some on the American left.”
I agree that this was unnecessary and unhelpful – it’s not the inclusion of trans women that stands in the way of abortion rights – but, well, see below, it makes the important point that privacy is to fragile a ground for that right.
Seekonk 06.27.22 at 10:01 pm
The Supreme Court is an undemocratic institution that has issued many more bad decisions than good ones. I suggest that the Dems:
• Add justices and impose term limits.
• Enact jurisdiction-stripping, as was done during Reconstruction. https://en.wikipedia.org/wiki/Jurisdiction_stripping
• And legislatively repeal Marbury vs. Madison, the 1803 case in which the Supreme Court arrogated to itself the right to determine the constitutionality of legislation. The Constitution does not give that power to the Court. The final say on the constitutionality of legislation could be given to the House of Representatives. https://en.m.wikipedia.org/wiki/Parliamentary_sovereigntyhttps://en.m.wikipedia.org/wiki/Parliamentary_sovereignty
J-D 06.28.22 at 12:45 am
Imagine, for a moment, that the 1970s Supreme Court had made a decision protecting access to abortion which was not based on privacy rights but on some other ground, a more robust and constitutive one if you like.
Hands up who thinks the present Supreme Court would have overruled that decision?
Hands up who thinks the present Supreme Court would not have overruled that decision?
Barry 06.28.22 at 1:14 am
John: “Without waiting for the midterms, if Collins and Manchin were seriously angry about being lied to, they could agree to a carve-out from the filibuster, and Congress could legislate Roe v Wade right now.”
1). That won’t happen.
2) SCOTUS can overturn a law quite easily.
Barry 06.28.22 at 1:15 am
John: “@1 There isn’t a majority for court expansion yet, but if the SC rejected the outcome of a (hypothetical) Democratic win in the midterms, it would emerge, I think.”
!?!!?! In that case, the GOP holds Congress.
faustusnotes 06.28.22 at 2:20 am
Miriam, that passage is extremely disingenuous, and I think your interpretation is too generous. Nobody believes that privacy is the correct grounds for protecting abortion, and everybody accepts that Roe Vs. Wade was a kludge because American society is too misogynist to accept abortion rights as women’s rights. “Get your laws off my body” is not a demand for privacy rights!
The TERFs have been sucking up to the far right for years now, hoping that they can use the political power the far right has to drive transgender people out of the public space. They have been vociferous in their insistence that women should be defined by their sex organs. Everyone else has been pointing out to them how backward that attitude is, and where it leads, and what happened to the last generation of feminists who sided with the religious right. Well, now they have realized the inevitable gains of this project they embarked on. And even now, they want to pretend it’s the fault of a tiny number of transgender activists, rather than the religious right who they jumped into bed with.
re: the future of the issue in the USA, this article does a terrifying job of describing what will happen next. It was published earlier this year but some of its predictions – about anti-abortion states pursuing out of state abortions – are already being realized, and it seems pretty likely that a big consequence of this will be increased surveillance of women within the USA. If the Republicans win all three branches of govt in 2024, a national ban will be in place very quickly, and following that the expansion of the anti-abortion crusade internationally.
It doesn’t seem far-fetched to me that in future American women will need a certificate of no pregnancy to travel internationally, or at least domestically depending on how comprehensive the next national Republican victory is.
Aubergine 06.28.22 at 3:44 am
Sodha isn’t talking about trans women here, she’s referring to the idea that it’s offensive or inappropriate to call abortion a women’s issue because some people who don’t identify as women (trans men, “non-binary” people etc) may need abortions too. This is a pretty common view in certain kinds of activist and academic spaces, where talking about “sex-based rights” is absolutely forbidden.
As she observes, anti-abortion policies are just part of a wide genre of measures aimed at women because of women’s roles in reproduction. The people behind these measures know exactly who they want to harm, and trying to fight back using language designed to obfuscate the reality of sex is a foolish game. You just can’t talk sensibly about abortion rights without talking about women. That’s the point of the passage you’ve quoted, and I think she’s absolutely right.
(Hopefully most of the people who are genuinely fighting these measures, and not just trying to score points on Twitter or wherever, will recognise this and not take the bait.)
John Quiggin 06.28.22 at 4:00 am
Barry
@20 We seem to be in furious agreement
@21 By “reject the outcome”, I meant reject legislation passed by the winners in an election where this was a key issue. But it’s also entirely possible that the Repubs, including SC would try to overturn a Democratic win
J-D 06.28.22 at 5:13 am
Abortion is a women’s issue, and it’s both inaccurate and tactically inadvisable to deny that it is a women’s issue. Who does deny that it’s a women’s issue? I don’t recall ever encountering such a denial myself, but that proves nothing, of course.
Saying that it’s not only a women’s issue is not the same thing as denying that it is a women’s issue. It’s not only a women’s issue, and it would be inaccurate to say so.
Calling abortion a women’s issue, as it is, is not synonymous with talking about ‘sex-based rights’. The advantage of using that terminology is not clear.
Aubergine 06.28.22 at 5:42 am
J-D, I didn’t say that anyone was denying that abortion is a women’s issue, and neither did Sonia Sodha, whose views are being traduced above.
Karl Widerquist 06.28.22 at 9:25 am
My impression is that the affects of overturning the Roe decision are confined to the United States. I think the United States is an except to the world trend toward increasing access to abortion. It’s still a big, influential country, but in this case, I think, the United States will have uncharacteristically small influence on world trends.
Fake Dave 06.28.22 at 10:26 am
Put it in the “we were warned” column along with the Russian invasion, the cost of living crisis, uncountable mass shootings, millions dead of COVID, the fall of Kabul, Jan 6th, kids in cages, climate change, and everything else we’ve failed to prepare for or recover from in recent years. The neoliberal establishment has been bloodied and humiliated by the Trumpian/Putinist one-two punch of external interference and internal obstruction and has now suffered a string of defeats in arenas where we were assured that demographics is destiny and progress could only move in one direction. It’s not that they’ve lost power so much as they’ve lost the argument.
Squishy centrism doesn’t provide a solid ideological foundation for movement building, so now that history is done ending and the reactionaries are ascendant, the mainstream liberals have started casting about for counter-ideologies. I really hope the center-left and social democratic parties will start to realize their own complicity in normalizing authoritarianism, influence peddling, and cynical electoral gamesmanship. There is a shockingly long list of mainstream and liberal pundits and politicians who shilled for Putin, insisted no court would overturn Roe, couldn’t tell the difference between bots and Bernie Bros, embraced the Steele Dossier and peddled fantasies that FBI would save us, or let Corbyn be slandered as antisemitic while doing nothing to protect Sanders from the real thing. Maybe we’ll get some turnover of the most feckless and marginal players, but oligarchy and the “mainstream” being what they are, we’re likely to be stuck with the same bunch of prating, sanctimonious, overpaid, not-even-wrong talking heads and retired-in-place incumbents for years to come. We’re just going to have to start tuning them out.
J-D 06.28.22 at 10:50 am
Something you did write, and I quote your exact words, was as follows
The meaning of that sentence depends on what the antecedent of ‘this’ is. The immediately preceding sentence, and again I quote the exact words, was as follows:
Reading the two sentences together, therefore, (part of) the apparent meaning is: ‘The idea that’s it’s offensive or inappropriate to call abortion a women’s issue is a pretty common view in certain kinds of activist and academic spaces’.
I can imagine that somebody might draw a distinction between ‘denying that abortion is a women’s issue’ and ‘viewing it as offensive or inappropriate to call abortion a women’s issue’. In the context of the present discussion, that distinction seems strained to me–I would have thought that anybody who describes it as offensive or inappropriate to call abortion a women’s issue could reasonably be taken as denying that it’s a women’s issue, unless they make a deliberate and emphatic point of how they draw the distinction–but if that’s the distinction being drawn, then I respond that I have never encountered any examples of people saying that it’s offensive or inappropriate to call abortion a women’s issue, and if such examples exist I would appreciate having my attention drawn to them.
Tom Slee 06.28.22 at 1:34 pm
@J-D says: “I have never encountered any examples of people saying that it’s offensive or inappropriate to call abortion a women’s issue, and if such examples exist I would appreciate having my attention drawn to them”
As one prominent example: Planned Parenthood on several forums on June 17: “Using gender-neutral language when talking about abortion is critical to prevent the erasure of trans and nonbinary people — who already face disproportionate barriers to health care access.” (Google the text to find many links) I hope you would agree that “using gender-neutral language… is critical” is effectively saying that it’s inappropriate to call abortion a women’s issue.
steven t johnson 06.28.22 at 2:04 pm
Given the number of women in the so-called pro-life movement—and their dominant presence in the ranks of religion, from what I see—it is entirely unclear how telling men that abortion is a woman’s issue strengthens the case for abortion rights.
The system in the US is designed for the minority to block the majority. This is because property holders who hold enough property to count are always the minority. This arrangement is conceived as freedom, because infringement of property rights is socialism/Communism. There is not the slightest indication anyone else here will ever sacrfice the struggle against such malign principles above any other strategic, much less tactical, necessity, regardless of the goal. Committed minorities can always be held together by people with money and while cultural wedge issue can only mobilize a small minority, that’s enough. Money not only talks, it keeps on talking and talking and talking. The wedge issues are always packaged with standard reactionary anti-labor, pro-property, pro-creditor, pro-owner policies that would have comprehensible to a Roman equestrian or an English squire or a noble in Versailles.
Miriam Ronzoni 06.28.22 at 2:39 pm
Just to say I am going the close sub-thread on sex-based rights/trans-inclusivity/Sonia Sodha’s piece (i.e. I am not going to approve any more comments on this topic), so as not to deviate attention from the main topic of this open thread. Thanks for your understanding.
RobinM 06.28.22 at 3:45 pm
For what it’s worth:
https://www.law.uchicago.edu/news/justice-ruth-bader-ginsburg-offers-critique-roe-v-wade-during-law-school-visit
Maryam Claudewitz 06.28.22 at 4:11 pm
I think that the only action that is really appropriate is at the state level. Adding amendments to State Constitutions, offering abortions for free to all people, mail order pharmacies, etc. Just like states with gun regulation have found, states can’t really forbid interstate commerce, even when they have the power to do so. They can have an effect, but it’s limited. It does place a huge burden on the mother, but even going to from Jackson, Mississippi to Chicago and back would take $200 in gas money. That’s to say nothing of filling out a form on the web, and getting a free package 3 days later.
The thing that should terrify anyone who lives in the US is this: what happens when the state of Mississippi sues California to stop it from sending out abortion drugs? Or what happens when the state of Mississippi charges a Californian pill-mill doctor with murder? The court would come up with a legal framework that let them reach their pre-determined end; they certainly showed the flexibility of Historical analysis between Dobbs & Bruen. The court then tells California to stop it. There is an extremely real chance, especially in the latter case, that California says “no.” The Court would then rely on a Democrat or Republican President to carry out their commands. How do you get out of that situation without quite a lot of blood in the streets.
Michael Cain 06.28.22 at 4:54 pm
Our Fort Sumter moment of January 6th wasn’t enough.
But it wasn’t a Fort Sumter moment, even under the “history rhymes” sorts of construct. By the time Fort Sumter was shelled, seven state legislatures had seceded and declared a new country. They had given up on any notion that they could maintain their cultural institution(s) through even partial minority rule. They couldn’t overcome the majority. They had to leave.
The conservative/reactionary minority today still believe they can impose their will on the majority somehow. If you’re looking for a forced rhyme, we’re no farther along than the 1850s, with Dred Scott, Bleeding Kansas, etc.
LFC 06.28.22 at 8:35 pm
JQ @15 said:
Without waiting for the midterms, if Collins and Manchin were seriously angry about being lied to, they could agree to a carve-out from the filibuster, and Congress could legislate Roe v Wade right now.
As long as the Dobbs majority on the Sup Ct stays intact, there’s not v. much point in “legislat[ing] Roe v Wade,” b.c the Sup Ct almost certainly would rule that it’s an unconstitutional infringement on the states’ authority to regulate in this area. It would buy a little time in postponing some of Dobbs’ effect, but that’s really all.
mw 06.28.22 at 9:18 pm
Focus at the state level. Use the ballot initiative process where available. To make majority support more likely, propose abortion laws akin to those of western Europe and more in line with the views of the median voter (e.g. less expansive than Roe). Work to provide travel support for poor women in those states where abortion is likely to remain illegal.
I live in a state (Michigan) which had not legalized abortion before Roe. What should happen here is a moderate ballot proposal that would attract a solid majority in a ‘purple’ state. If the polling for the proposal is strong enough, Republican majorities in the legislature may actually adopt and pass it in order to keep it off the ballot (as they did with the ballot initiative that legalized marijuana).
My hope (probably overly optimistic) is that now Roe has been overruled, control of the USSC will become less of a blood sport (as it was before Roe when filling vacancies was rather routine).
J, not that one 06.28.22 at 10:18 pm
As for the Court, I think the Rs, including the Justices, are under the impression that there’s momentum for a revolution in their favor and that no one will stop them as long as that’s the case. Since the belief is delusional, it’s unclear what would stop them.
There might be legislative or other tactics that could slow them down, somewhat, for instance require another argument to be worked up similar to Dobbs. Maybe. And that assumes the Rs on the ground don’t also think they can get away with whatever they want regardless of what the law as understood by lawyers is. (The court just said a doctor who makes up his own medicine is still acting as a doctor, where a real doctor who makes one bad decision was not. So guess how they feel about “the law as understood by lawyers.”
Suzanne 06.29.22 at 12:19 am
@33: It’s worth very little. Ginsburg was mistaken. We are already seeing the chaos and confusion that come with state-by-state battling over the issue. We can be assured that she would never have voted to overturn the decision.
@30: Over at Slate, an exchange on the aftereffects of overturning Roe refers only to “pregnant people.” Might be challenging to rally people to a cause central to women’s rights without being able to utter the dreaded W-word, especially given that cisgender women are at present the only market for controversial contraceptives such as Plan B that have come under attack by anti-abortion forces who claim, incorrectly, that they are abortifacients.
steven t johnson 06.29.22 at 4:52 pm
Suzanne@39 For those who claim conception is when life begins, Plan B can also prevent implantation—though the primary mechanism is prevention of any ovulation—thus by that standard, Plan B is still an abortifacient. Defining abortifacient as a drug that causes ejection of an implanted egg/embryo/fetus is defensible I suppose but the real issue is life beginning at conception. So a narrow definition of abortifacient as ejection not of the zygote but only the implanted embryo won’t be accepted regardless.
The real imposition is the insistence life begins at conception. This is purely religious and therefore unamenable to religion. And the people who have chosen to side with religion and rejected nasty mean atheism are unreliable on the issue.
Of course, if life begins at conception, every natural failure to implant—assuming the right-to-lifers aren’t going to target women who have miscarriages even more ruthlessly—is God’s abortion. I suppose ectopic pregnanacy is God’s attempted murder of a sinful woman? And double fertilization (simultaneous penetration of an egg by two sperm) is God making sure that life is snuffed? It’s not clear how many conceptions fail, I’ve seen estimates as high as 70% and as low as 50% which I’m not even going to bother linking (as if I remembered) because the truth seems to me to be, this is a topic scientists are afraid to research.
It’s all madness.
J-D 06.30.22 at 12:15 am
There’s no reason to believe this true and some reason to believe it false.
Ebenezer Scrooge 06.30.22 at 2:18 am
If anybody wants to put a right to abortion on a less kludgy basis, I suggest Harlan’s suggestion in Poe v. Ullman–suspect any law whose practical enforcement conflicts with ordered liberty. (Harlan was thinking of contraception.) Of course, this line of argument would invalidate much of the War on Drugs.™ This extension is a feature, not a bug.
I don’t care much about legal theology, however. Reinstating abortion rights is going to require the same kind of smashmouth politics that destroyed abortion rights. Which is why us Crooked Timber types are mostly irrelevant. Theologians are skilled hired hands, not themselves movers in this world.
roger gathmann 06.30.22 at 9:52 am
HRC is not a prominent trans activist, but – although I do not like her positions on a variety of issues – she has been blessedly upfront that Roe rights are human rights. It is quite simple, from this point of view. Men can either support Roe rights or be aggressors against all women, even if that aggression is performed in a “do-nothing” manner. This idea has firm grounding in the great American tradition of dissent, going back to Frederick Douglas and Thoreau. We had a chance to codify Roe in 1993 – Don Edwards bill, at that time, was assumed to have easy sailing – but it was sabotaged by peeps I generally identify with, the left wing of Dems, who wanted not only to codify Roe rights but overturn Hyde and refused to take a two step approach. We can learn from this: https://www.nytimes.com/1993/04/02/us/abortion-rights-supporters-are-split-on-us-measure.html
Unfortunately, coming down from legal analysis to reality, we have to deal with a clearly exhausted Dem party. Trump, with the fascist’s sense for the weakpoint, zeroed in on Biden as “tired” – just as he zeroed in on Jeb Bush as a silverspoon nothing. He was right. Biden’s people, quoted in a recent Reuters thought piece, are afraid of people “losing trust” in public institutions like the Supreme Court. This administration is astonishingly bad. To find an administration so palpably unable to meet the moment, you have to go back to James Buchanan – which is Biden’s class of President. So whatever happens has to be done against both the GOP and the Democratic party elite. Good luck with that.
TM 06.30.22 at 4:33 pm
Fighting back against fascism requires, as a necessary first step, acknowledging, understanding, feeling the urgency of the political moment, the severity of the attack on liberal democracy in the US. There will be no effective resistance if liberals and leftists don’t first understand the determination and radicalism of the Republican fascists. They won’t stop before democracy and human rights in the US have been replaced by an authoritarian surveillance state – and this is the best case, not the worst case scenario.
Regarding abortion I have posted enough on the other thread, I’m too exhausted to start again. But here’s a piece worth referencing:
“Indeed as an undergraduate Alito didn’t even have any women in his classes until his junior year, because until then Princeton College was all male. Alito found this situation so congenial that upon graduation in 1972 he joined a brand new organization, Concerned Alumni of Princeton, that was formed to oppose the admission of women to Princeton. (This remarkable fact has somehow gone pretty much completely down the memory hole). … Here it’s worth recalling that according to Dean Chief Justice Warren Burger actually threatened to resign from the Court if Nixon nominated a woman to it.”
https://www.lawyersgunsmoneyblog.com/2022/06/sam-alitos-woman-problem
A takeaway: Reactionaries like Alito aren’t responsible for having grown up in an extremely misogynist society. But they who yearn for the old times of misogyny (and racism and so on) when every halfways decent person is capable of repudiating the bad old “traditions” turn out the most dedicated and dangerous fascists. It’s so important to not call them “conservatives”. Perhaps 50 years ago they were “conservative”, resistant to change. Bot today they are radical fascists determined to destroy the liberal social order.
Reading this piece also brought to my mind an older thread here on CT:
https://crookedtimber.org/2021/12/15/pregnant-judges/
Worth recalling, or perhaps not…
lathrop 07.02.22 at 1:48 am
“Congress could legislate Roe v Wade right now”
In principle, perhaps. But any such legislation is written on the water, since the Republican right wingers would reverse it and worse as soon as possible.
nastywoman 07.02.22 at 6:40 am
Sorry -(especially @44)
BUT I can’t blame ‘Fascism’ for this one –
I mainly have to blame the worst of all awful reactionary (Italian) Catholicism =
‘Jackson, who was confirmed by the Senate on Thursday, will be only the second Protestant on the high court when she joins the court this summer, along with Neil Gorsuch (who is Episcopalian but was raised Catholic). The justice whom Jackson will replace, Stephen Breyer, is Jewish, as is Elena Kagan, who remains on the court. The remaining six justices — John Roberts, Clarence Thomas, Samuel Alito, Sonia Sotomayor, Brett Kavanaugh and Amy Coney Barrett — are Catholic. Thus, the court will consist of six Catholics, two Protestants, and one Jew’.
And that wasn’t THE FOUNDERS idea –
Right?
Jeff Guinn 07.03.22 at 2:34 pm
@Steven Johnson: The real imposition is the insistence life begins at conception. This is purely religious and therefore unamenable to religion. And the people who have chosen to side with religion and rejected nasty mean atheism are unreliable on the issue.
I think you are coming at this from the wrong direction, and are thereby not having to face the real problem. How about this:
Once the process of life begins, there are only two ways in which it ends: Natural (old age, disease, accident) or Intentional (suicide, homicide — which itself consists of justifiable homicide or murder).
Unless I’m missing an option, then elective abortion must be either a justifiable homicide, or murder. An ectopic pregnancy would be a perfect example of an intentional ending of a life in process justified by a self-defense argument.
But any abortion that wouldn’t qualify as self-defense in any other realm of life must be homicide.
Coming at it from this direction defines the beginning of the life process: conception. Moreover, it requires confronting what ending that process must entail. There is absolutely no religious component to this argument, and unless it omits some option, then there is no escaping the fact that abortion is homicide.
Which leads to this question: does life have intrinsic value?
What activists should do depends on both what abortion is, and deciding the value of life.
Of course the entire burden of the beginning of life falls on women. But that unavoidable fact is external to the fundamental problem.
linnen 07.03.22 at 10:04 pm
Seekonk @18
point 1: Increasing the number of seats is just as vulnerable to getting stuffed by Senate Republicans as the current set up is. As for term limits the same problems would still exists, even ignoring that Democratic Justices will age out more rapidly than the current Republican ones.
2: Jurisdiction stripping at the time of the Reconstruction was done by a victorious Union Congress. One would need to remove the seditionists first before getting anything like what was done then.
3: Hello, you must be new to America. Have you met our House of Representatives? Facetiousness aside, there are parts to the can of worms leaving Constitutionality to the House that are problematic.
a- Who decides between legislature and judicial branches where a question of constitutionality falls?
an example – The legislature delegating to an executive agency rule making authority.
another – State vs Federal issues, say gun control or abortion. Exclusive to one side, or is it a mix?
b- Time. When will the House find time to do this? Getting them to legislate is hard enough.
c- The horse trading that normally goes on. Do we really want constitutionality in play when budgets or taxes are decided? Much less the regular legislative amendment process to influence this? The House used to have an independent Office of Science and Technology. That got axed by Gingrich because of “budget” reasons. And the CBO provides forecasts that are only as independent as the Republicans allow.
J-D 07.04.22 at 6:30 am
The processes of life have been going on* for billions of years, and neither natural deaths nor intentional ones have ended it. In individual cells, these processes can come to an end in more ways than you mention.
That depends on the law of the jurisdiction in which it takes place. According to the legal definitions in jurisdictions I know about, an elective abortion is not a homicide** at all, and therefore neither a justifiable homicide nor a murder.
It’s not clear what life process is being referred to here.
It is not clear what is meant by ‘intrinsic value’. If I value something, then it is of value to me; if you value something, then it is of value to you. It’s not clear how something could be of value independently of somebody valuing it.
*On this planet–nobody knows about anywhere else.
**According to the legal definitions in jurisdictions I know about, it is not the case that all homicides are either justifiable homicides or murders, but it’s not clear that the error on this point affects the issue, which is why I’m only mentioning it in a footnote.
Jim Buck 07.04.22 at 6:41 am
‘ Unless I’m missing an option, then elective abortion must be either a justifiable homicide, or murder.‘
I believe you are missing an option i.e “suicide”. In the same way that ( for the religious) the Son and the Father are One, for the secular the mother and the unborn child may be considered as one.
TM 07.04.22 at 8:16 am
An important reminder regarding what opposing fascism in the USA is also up to: insane mainstream media framing fascism and “far left” (mumbo jumbo what was the point again? Ah yes:”) wokeism as equivalent because making debatable choices about gender inclusive language is exaxctly the same as waging war on democracy and human rights.
https://twitter.com/donmoyn/status/1543588957434281984
nw 46: Not sure what your point is but I’m sure you have heard of the Reichszentrale zur Bekämpfung der Homosexualität und der Abtreibung? Not to let Catholicism off the hook but you don’t have to be Catholic to hate women.
nastywoman 07.04.22 at 10:52 am
‘Not sure what your point is but I’m sure you have heard of the Reichszentrale zur Bekämpfung der Homosexualität und der Abtreibung?’
Yes.
‘Not to let Catholicism off the hook but you don’t have to be Catholic to hate women’.
Yes – but for a film about the HOME-Land (English+German) – I had – and still have to figure out what’s ‘the (major) point’ for such a lot of Americans, who are against abortions
(or any ‘Others’ or any ‘Science’ or for the Utmost Stupidity you can think about)
And being familiar with (German and Italian) Neo-Nazis – and let’s call it ‘the Original Faschismus’ and thus real ‘fascistic thinking’ – I always understood that there was a HUUUGE difference to the way Americans where (not) thinking.
Like – while the German or Italian (‘Fascistic’) way is/was always pretty ‘dogmatic’ -(if I’m allowed to call it like that) there is no comparable (dogmatic) ‘American way’.
Just such a Chaotic and Crazy Mischmasch – that in some kind of Freudian Therapy seatings you always have to find out what’s ‘the real motivation’ or ‘real priority’ of an American you might consider to be ‘a Fascist’ –
and then –
often –
(and especially if ‘Religion’ is involved)
there is this… may I call it – ‘surprise’ – that –
(especially about ‘abortion’) –
you are dealing with ‘Piccolo Samuel’ who still believes in some old Catholic Dogma he got taught by his parents.
notGoodenough 07.04.22 at 10:53 am
Jeff Guinn @ 47
I will just offer my own take, though certainly I would recommend looking at the other commentator’s responses too as they also offer thoughtful discussion worth consideration.
I think there’s another way of looking at this instead, which raises the real problem you have yet to face – should a person have the right to use another person’s body without their consent?
If the answer is no, then anyone should be able to revoke use of their body under any circumstances. Whether or not such an action results in “death” is irrelevant to this question – it is, to borrow the phrase you have used, an “unavoidable fact is external to the fundamental problem”.
If the answer to this is “yes”, or “yes, but only when […]”, then surely it will be necessary to justify why and under what circumstances? For example, if it is morally sound to force someone to undergo pregnancy against their wishes – with all potential risks that brings – why would it not be morally sound to have forced organ donation, mandatory harvesting of tissue and blood, or – to take a relatively topical example – forced vaccination of unwilling people? And who, and under what circumstances, may make such decisions? All this (and more) will need some explanation and rational substantiation.
To illustrate the point better, let’s consider a life that (nearly?) everyone would agree is sentient and capable of (at least certainly to an extent) offering an opinion – say a 10 year old. If a 10yo requires and requests medical treatment necessitating the use of a parent’s body (e.g. bone marrow transplant, or to be hooked up to someone for 9 months for dialysis), should parents be legally mandated to make their bodies available? Certainly, some might think it is admirable to do so, and perhaps some might look askance at a parent who is not willing to make such sacrifices, but should it be a legal requirement?
With respect, I think this is the more important question to answer first. While the argument you present inherently raises additional questions (such as the thorny question of when “life” begins, or why one particular clump of living cells should be considered sacrosanct but another not), it seems to be rather jumping the gun until the limitations on bodily autonomy are justified – and certainly it seems premature to start talking about appropriate legal definitions.
In short, I think that until sound and valid arguments for what circumstances justify someone using another person’s body against their will are provided, the discussion you raise seems rather a distraction.
Notes:
(1) While not directly equivalent, I believe the US courts have upheld have a competent adult’s right to refuse medical procedures – even in cases when they are necessary to save the life of another – which offers a potentially interesting point of comparison. It is, perhaps, made even more interesting in that when one considers that parents frequently have the responsibility and authority to make medical decisions on behalf of their children (including the right to refuse or discontinue treatments, even those that may be life-sustaining). While I don’t consider these points necessarily offer an answer to the question of bodily autonomy raised in my main comment, it certainly would appear to demonstrate that – within the context of the US – there is a bit more to the consideration of responsibilities and intersecting rights than you seem to imply.
(2) I include this as a note as it is a bit of a digression, but I find myself more-or-less following what J-D said – as far as I’m aware, things only have value if value is assigned to them. I’m not aware of anything that has an intrinsic value, and certainly I’d be interested if you have examples.
MisterMr 07.04.22 at 1:20 pm
At best of my understanding, abortion laws in Italy and Germany are more or less the same, permitting abortion up to 90 days or 12 weeks after conception, or later in special cases (rape, health issues, etc.).
Incidentally, I think that in the abstract this is the way to go, as it means that both the mother and the fetus have rights and the law has to strike a balance between the two rights (although I think the period where abortion is unconditionally allowed could be longer).
This is however secondary if the idea is that the supreme court would strike down any law that legalizes abortion in any form in the whole USA.
@NW 52, Mussolini was a spectacular flip-flopper, first being anti-curch and then being pro-church, first pandering to the jews and then sending them to extermination camps etc.
I think that German and Italian neo-fascists (or neo nazis) look more consistent because they point to some specific historical figures, but they aren’t that much consistent.
In fact I think that it is a characteristic of this kindo of right wing populist parties/movements/people that they always say that they are high principled, but their high principles shift very widely, because they are “traditional” principles that in practice correspond with the identification with a perceived community, rather than abstract philosophical reasoning.
Jeff Guinn 07.04.22 at 3:22 pm
@J-D: The processes of life have been going on* for billions of years, and neither natural deaths nor intentional ones have ended it. In individual cells, these processes can come to an end in more ways than you mention.
Apologies if I obscured my point. Let me rephrase. Each human life will end of natural causes absent an intervening intentional act, no matter at which point during that life. Natural history or cell demise are irrelevant here.
An elective abortion, therefore, is always an intentional act that ends a life prior to its end by natural causes. Outside the womb, such an intentional act is either an instance of suicide or homicide. Abortion obviously can’t be suicide, so there must be something about being inside the womb that makes the intentional ending of a life there not homicide, but something else. What is that something else? When does that something else become homicide?
The main point being that looking at the end of a life being either natural or intentional, and that a life ended intentionally can only be characterized as the deliberate killing of another is not a religious argument; furthermore, there is no place in it for arbitrarily imposed distinctions. A life once begun ends either naturally or intentionally.
It is not clear what is meant by ‘intrinsic value’. If I value something, then it is of value to me; if you value something, then it is of value to you. It’s not clear how something could be of value independently of somebody valuing it.
If all human lives have intrinsic moral value, that value is independent of any contingencies, and the intentional ending of a life is always either suicide or homicide. Alternatively, if each life doesn’t have intrinsic value, then some very ugly questions start arising, which can be left as exercises for the reader.
@notGoodenough: I think there’s another way of looking at this instead, which raises the real problem you have yet to face – should a person have the right to use another person’s body without their consent?
Your question contains presuppositions that carry a lot of weight, particularly “should” and “the right”. It isn’t fair that creating new life is a burden falling entirely on women. But it is what evolution bequeathed us, and do not in any way change what abortion is. All other considerations are secondary to any human life’s intrinsic value.
If the answer to this is “yes”, or “yes, but only when […]”, then surely it will be necessary to justify why and under what circumstances? For example, if it is morally sound to force someone to undergo pregnancy against their wishes – with all potential risks that brings – why would it not be morally sound to have forced organ donation, mandatory harvesting of tissue and blood, or – to take a relatively topical example – forced vaccination of unwilling people?
Argument from analogy almost always involves fallacies. To be internally consistent, the conclusion that all elective abortions (almost all abortions are elective) must mean that, to avoid committing homicide, all pregnancies must be allowed to proceed naturally.
Which is where your analogies fail. If someone dies in absence of a forced organ, blood, or tissue donation, that life ended naturally, not intentionally. Your example of the 10 yr old suffers the same flaw. Elective abortion is the opposite. Analogy fails where it erases the clear distinction between what is under discussion, and what is being analogized.
(And mandatory vaccination is an entirely different subject.)
I’m not aware of anything that has an intrinsic value, and certainly I’d be interested if you have examples.
I’m taking the position that all human lives must be treated as if they intrinsically possess equal moral worth. That means that, for example, the life of someone deep in the throes of dementia has the same moral worth as your’s — intentionally ending that person’s life would be homicide, just like intentionally ending your life would be.
To conclude otherwise, that life doesn’t have intrinsic moral worth, is to open the landscape to all manner of unpleasant destinations.
As this has already gone on too long, here’s a hypothetical: A pregnant woman is attacked in a home invasion robbery, and as a consequence of injuries sustained, she miscarries. Can the robber be charged with homicide? Does it matter whether the woman wanted the pregnancy? Could the same act be homicide and not homicide at the same time? (Shameless Schrödinger reference.)
If memory serves, this hypothetical is real. The attack happened in Colorado, and the attacker wasn’t charged with murder because abortion is legal in Colorado.
The argument against abortion is independent of religion, nor is it fascistic or misogynistic. It accepts ascertainable facts as they are and reaches the conclusion that so long as human life has intrinsic moral value, there is no defensible point at which intentionally ending a life is not homicide.
Suzanne 07.04.22 at 10:47 pm
@41. Fair enough and my apologies. I should have written, “the very large majority” instead of “only.”
@36: In the past, as recently as the 1980s, Congress has not been at all shy about passing new or revised legislation following Supreme Court decisions it did not agree with. Because of the current state of near-gridlock and extreme partisanship and obstructionism on the part of the Republicans, that’s no longer the case and the result has been a shift of power to the Supreme Court, who can rule safe in the knowledge that there isn’t much Congress can or will do in response. (The Democrats can’t act and the Republicans won’t.)
If by some unlikely chance the Democrats were able to muster a filibuster-proof majority in the Senate, it would absolutely be worth their while to pass legislation codifying abortion rights. If the Court wants to strike it down again, fine, let them try. Buy that window of time, however small, and see what happens.
(If there had been such a Democratic majority in the Senate, the Court would probably conduct itself differently, even this Court, because it’s then a different political landscape.)
TM 07.05.22 at 9:03 am
Mainstream media fighting the culture war for the fascists are a great help:
https://twitter.com/ericacbarnett/status/1543999122117537793
Every woman that dies of pregnancy complications because of Republican “pro life” values should posthumously be awarded a Mutterkreuz.
Jim Buck 07.05.22 at 4:29 pm
@55 ‘Abortion obviously can’t be suicide‘
Bring theological thought to the matter and abortion then can be seen as suicide, obviously.
Cora Diamond 07.05.22 at 4:44 pm
Jeff Guinn’s argument @55 depends on the way he speaks of the “intrinsic value” of all human lives. He says that, once the process of life begins, there is something going on that, if it is ended intentionally, is the intentional end of something with intrinsic value. It frequently happens, if a couple has sex, that there is a short-lived embryo that they are unaware of. It might get implanted and later get expelled from the uterus or it might not even get implanted. This would be a sad thing to happen if the couple wanted to conceive. But apart from their not conceiving a child when they wanted to, there isn’t something sad or regrettable in an embryo living only a short life. If Jeff Guinn holds that there is in any such case, less intrinsic value in the universe, it’s not clear why in general “loss of intrinsic value” should be of concern to us. Guinn uses the language of “homicide” in speaking of the intentional ending of any human life, but we have the language of “homicide” because we care about the lives of human beings, and he wants us to use that language when the “human life” in question is of the sort that is lost in its millions in the normal disappearances of unimplanted fertilized eggs and early embryos. We don’t mourn all the fertilized eggs that don’t implant, nor should we. We should be wary of an understanding of abortion that rests on taking there to be something bad happening whenever something that could develop into a human being doesn’t do so.
anon/portly 07.05.22 at 8:55 pm
currently 56, Suzanne:
@36: In the past, as recently as the 1980s, Congress has not been at all shy about passing new or revised legislation following Supreme Court decisions it did not agree with. Because of the current state of near-gridlock and extreme partisanship and obstructionism on the part of the Republicans, that’s no longer the case and the result has been a shift of power to the Supreme Court, who can rule safe in the knowledge that there isn’t much Congress can or will do in response. (The Democrats can’t act and the Republicans won’t.)
The Democrats have a bill, the Women’s Health Protection Act, which passed the House in February 2022 but failed 46 – 48 in the Senate. After the Dobbs draft leaked, in May, they put it up again and it failed 49 – 51, with Manchin (D – WV) voting against it.
https://www.vox.com/2022/5/11/23065959/senate-abortion-vote-womens-health-protection-act
https://en.wikipedia.org/wiki/Women's_Health_Protection_Act
Apparently they’re going to put it up a third time, maybe on the supposition that Manchin will vote for it this time and they’ll force the Republicans to use the filibuster.
Josh Barro is suggesting that they put up a narrower bill or set of bills, described here:
https://twitter.com/shannonrwatts/status/1540714174400978945
If by some unlikely chance the Democrats were able to muster a filibuster-proof majority in the Senate, it would absolutely be worth their while to pass legislation codifying abortion rights. If the Court wants to strike it down again, fine, let them try. Buy that window of time, however small, and see what happens.
It seems unlikely that the Democrats will get to 60 senators any time soon, although to get Roe and Casey codified into law would take less than 60, as there are at least 2 Republicans (Collins and Murkowski) in favor of that. But if that ever happens I’m not sure there is any theoretical basis for the idea that the Supreme Court could or would strike down such a law – obviously many states have laws allowing abortion and they haven’t been struck down. Is there a movement afoot to get any of those state laws struck down?
TM 07.06.22 at 8:51 am
Sozanne 56: “If by some unlikely chance the Democrats were able to muster a filibuster-proof majority in the Senate, it would absolutely be worth their while to pass legislation codifying abortion rights.” Sure, absolutely.
“If the Court wants to strike it down again, fine, let them try. Buy that window of time, however small, and see what happens.”
I’m afraid you are overlooking one detail: If federal laws codifying abortion rights were passed, Democrats would also have to make the neoconfederate states comply with them – which they simply won’t. They will immediately turn to one of the 250 right wing lunatics nominated by Trump to the federal bench, who will gladly strike down any such laws based on the constitutional principle “fuck Democrats”, appeals courts packed by Trump will do the same, and once it gets to SCOTUS, all bets are off.
Sure, Democrats need to do everything in their power. But realize how radically the playing field has been tilted towards fascism already.
Trader Joe 07.06.22 at 1:28 pm
“Congress could legislate Roe v Wade right now”
They had over 50 years to do this including several years where they had majorities in both houses plus the Presidency and chose not to. To think they would do so now is naïve.
Note that for +150 yrs prior to Roe each state regulated abortion and as will be the case going forward there was a patchwork of rules. 9 States completely barred at the time of Roe, another 2 virtually barred it. The provision of healthcare (and related insurance) are powers that have resided with the states since inception and abortion is absolutely a health issue in addition to being a women’s issue. Be careful what you wish for when you start inviting a Federal definition of what healthcare should be provided and to whom (and under what circumstances).
Note also that the EU has different rules in every nation governing abortion despite having a plenitude of “Federal” rules. The average across the EU is legal abortion up to 14 weeks with health and other exceptions thereafter – more restrictive than Dobbs (on average).
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