Alabama lawmakers went ahead and voted to make abortion
effectively illegal. The bill, heading for the governor at this writing, flatly
defies Roe v Wade and subsequent Supreme Court decisions. In the normal course
of events, a lower federal court will strike down the Alabama law, the lower
court will be upheld on appeal and the Supreme Court won’t even look at it.
Dead issue.
But Alabama
will be only one of 14 states with laws that violate the 45-year-old precedent.
What’s that all about?
My right-to-life
friends believe that this is the moment for the Supreme Court to reverse itself
on abortion. They are ginning up cases from one state to another to give the
justices a case in which they can do what the right-to-lifers are sure they are
ready to do.
With the
Supreme Court, even certainties are uncertain. They right-to-lifers thought
Nirvana was at hand when President Reagan nominated Anthony Kennedy and got him
confirmed. Nirvana never came. At their confirmation hearings, under oath the
Trump appointees Neil Gorsuch called Roe “settled law,” and Brett Kavanaugh
called it “settled precedent.”
But Chief
Justice John Roberts’ court has not been all that respectful of settled law.
Just this week, it reversed settled precedent about who can sue states and how.
So, could
Kavanaugh and Gorsuch have been lying under oath? Testifying with forked tongues and fingers crossed, so to speak?
The
right-to-life movement, proudly and hopefully, thinks so.
And that is, they say, what God wants. Does He?
And that is, they say, what God wants. Does He?
So we have Alabama with an absolute ban, except for life of the mother. And we have New York witb no ban, any time, any reason. Welcome to our bipolar nation. Pro choice demonstrators are dressed up like handmaidens, the ACLU has promised to go to the mat, and pro life are certain their moment has come. The only thing I'm certain of is that this won't end well.
ReplyDeleteI'm usually conservative by nature, but this is one instance in which I'm not interested in conserving the status quo. And I'm willing to put up with a certain amount of social unpleasantness and verbal conflict to bring about justice. I don't care if the ACLU goes to the mat on this issue as long as it loses.
ReplyDeleteThat is an odd position for a spokesperson for the Catholic Church (although I am sure some of our more politically conservative prelates can top you): "Lie under oath if it will hurt the ACLU."
Delete"And when the last law was down, and the Devil turned round on you — where would you hide, Roper, the laws all being flat?"
I'm not interested in preserving this status quo, either. But if the only way I could change it were to put my immortal soul in jeopardy, I wouldn't. And if the laws of this country are going to be interpreted by people who would I am very afraid.
Tom - I'm not following you. Why do you think there are any lies in this situation? And why do you think it puts anyone's immortal soul in jeopardy?
DeleteJim, IF the right-to-lifers creating this menu of cases from which the court can choose one to overturn Roe are right, then Gorsuch and Kavanaugh signified contrary to their minds (lied) when they said, amid equivocations, that they would respect stare decisis on abortion. The lifers work on the assumption that the Trump justices led the Senate to think they consider Roe settled so they could be confirmed and overturn it. That is the lie under oath.
DeleteUsed to be, a lie under oath is considered very serious among moral people. (Cf, A Man for All Seasons)
Now, it could be that Gorsuch/Kavanaugh really haven't made up their minds and the donfather misread them when he perceived a willingness to be loyal to his re-election campaign. In that case, Trump, the right-to-lifers and frightened NARAL folks will all be astonished, and the donfather will tweet. But that is not how this scenario was written.
Tom - I guess we'd need to look at the specific questions put to Gorsuch and Kavanaugh, and their specific answers, to determine whether they're liars, or may be in the future. My impression is that their answers amounted to rather conventional statements of judicial respect for the principle of stare decisis. Personally, I find that reassuring. I certainly wouldn't want some single-issue zealot on the court. And while I am by no means a Court follower, I'd expect that Gorsuch, and perhaps even Kavanaugh already, have compiled track records of decisions and opinions illustrating their respect for stare decisis.
DeleteOf course, stare decisis isn't immutable dogma; the Supreme Court may and occasionally does issue decisions that deviate from precedent. I'd be surprised if Gorsuch or Kavanaugh made any promises to treat stare decisis as the equivalent of immutable dogma.
Justice Thomas doesn't say much, but he said fairly recently that he considers Roe to be the Dred Scott decision of our age (or something similar). Personally, I think that's exactly right. I'm grateful that stare decisis didn't prevent courts from setting aside the Dred Scott precedent. I fervently hope that cases will come before the Court that will allow the justices to set aside Roe, in a morally sound and well-reasoned fashion.
I think you are cutting those cute fellows a whole lotta slack, Jim.
DeleteBut the point I was awkwardly trying to make is that all those good Christians who made up the cheerleading teams for the Donfather's classy selections thought their boys were lying and were still behind them. Because, I guess, the end justifies the means.
DeleteWell ... I think it's a fairly complicated question.
DeleteI think the evasive-ish standard answer that judicial nominees give to senators who ask the nominee about her/his views on abortion - 'I can't speculate about some hypothetical and fictional case that may or may not ever come before me on the court' - isn't pure evasion; there is probably a great deal of wisdom in that demurral.
Justice Roberts, whom everyone knows (or thinks they know) is pro-life, just sided with the four liberal justices to prevent a Louisiana pro-life law from taking effect. Did he do that because he no longer is pro-life? More likely, he had reasons for ruling what he did that were not directly related to life issues, e.g. it would have made for a bad law or a bad precedent whether or not it happened to be about abortion.
With less fanfare, Michigan's legislature passed a bill that outlawed suction-and-evacuation, a specific procedure that is usually used for later term abortions, though one state lawmaker apparently wants the ban because it isn't painful enough.
ReplyDeleteI have heard State Sen. LaSata's clip on the radio non-stop in the last two days. She is clearly still full of pain and trauma over her own stillbirth after an unsuccessful abortion attempt. Her statement is a sad mix of guilt, hysteria, and wrath.
I feel very sorry for her, but individuals like this merely bring out the crazies in their Handmaid costumes on the other side.
https://www.freep.com/story/opinion/columnists/brian-dickerson/2019/05/15/michigan-late-term-abortion/3673648002/
Governor Gretchen will veto the bill, and it will die for lack of override votes.
I fail to see how this will be a better country if the Supreme Court overturns Roe v. Wade. The legitimacy of the Court is already in question—in my opinion, anyway. If abortion is a contentious issue now, just wait until it is turned back to the states.
ReplyDelete"If abortion is a contentious issue now, just wait until it is turned back to the states" David, I am afraid you are right. And the contention could end up taking pro-life to a worse place than it is now. Legislating morality only works if there is a consensus. A nearly 50/50 split that wavers a bit back and forth is not a consensus.
DeleteFetaltourism. The next big thing for states that have it.
DeleteIf the Supreme Court upholds Alabama's abortion law and a woman travels to NY to get one, is the NY abortion provider liable for extradition to Alabama? Is the Alabama woman liable when she returns? My guess is neither is liable and there has to be a fancy shmancy legal term for it. But maybe the Supreme Trump Court can overturn that, too.
DeleteDavid's post makes good food for thought.
DeleteAn overturn of Roe v. Wade would do nothing to improve anyone's morality or reflect a major change in the way our nation feels about fetal (and other vulnerable) life.
An overturn merely throws abortion law back on the states, so it may not even reduce abortion rates that much. Prior to Roe v. Wade young women here in Michigan were getting abortions in New York.
Anti-abortion activists need to change hearts and.minds, but that's not where the focus seems to be.
Jean, yes. Big time need to change minds and hearts. And the need to support a robust social safety net. Poverty may not be the proximate cause in the majority of abortions, but it is certainly a contributing factor. Access to medical care is a big part of the social safety net, however we can aim towards getting everyone covered, whether it is single payer or a combination. And definitely that needs to include family planning being covered.
DeleteI think the vast majority of abortions occur due to fear--fear of losing student scholarship benefits, fear of lost wages and promotion, fear of paying for a pregnancy leave--and that's not counting minors who are fearful of lack of family support, boyfriend manipulation, and having to give up a baby.
DeleteIt strikes me that the prospect of being open to life would be increased more by paid, 12-month maternity leave and child care assistance than just changing the law to a bunch of no-nos.
Mary Ziegler, who wrote a very knowledgeable and fair-minded book about Roe v. Wade ("After Roe: The Lost History of the Abortion Debate") has a NYT op-ed piece today (5/16).
ReplyDeleteShe points out that arguing, as recent state legislatures do, on the basis of fetal personhood are going further than the SC is likely to move based on their decision in Casey v. Planned Parenthood. Worth a read.
https://www.nytimes.com/2019/05/15/opinion/alabama-abortion-supreme-court.html
Mary Ziegler is right. Many states are jumping on the bandwagon, passing legislation to ban abortions, but with different cut-off points and different exceptions. One might guess that this is an organized strategy to create a set of potential court cases to take to the Supreme Court. It is unlikely that the Alabama version would succeed at the SC. It is also likely that the Georgia version, which grants full person rights to fetuses would not succeed as it would open up a Pandora's Box of litigation. One example that has been raised - if an unborn child has the full rights of personhood, it cannot be incarcerated without cause. So if the mother is in jail for cause, but the fetus is not guilty of criminal behavior, the law would require that the fetus be released. In addition, an abortion could lead to life in prison or the death penalty for both the doctor and the woman who has an abortion. If abortion is the taking of a human life, even at 1 week, it is murder. And the penalties for murder should apply right?
ReplyDeleteJim, you believe that a single-celled zygote is a human being. Ending its life is killing a human being. So would you support life in prison or the death penalty for women who procure an abortion and for the doctors who perform them?
Even Pat Robertson thinks the Alabama law goes too far.
Charles Camosy has an article in the WaPo arguing that if extreme legislation bans all abortions, right back to conception, then it must be coupled with extreme legislation to provide support to the mother and child after the births. I would suggest that he add free contraception counseling, free birth control, including permanent methods such as vasectomy and tubal ligation, to the required support.
Some years ago I stopped supporting most pro-life groups because it seemed that they are more interested in imposing their own religious understandings on a country whose majority does not share them than in supporting measures that would lead to fewer abortions - long-term practical support for mothers and families (including free day care as is done in most of Europe), medical insurance coverage, expanded family and child care credits in the tax structure, etc. Baby bottle collections and free diapers don’t meet the lifelong needs of children. They should support providing comprehensive birth control information in public schools, free contraceptive counseling for all, and free contraception for the poor. Finally, they should insist that private, for-profit companies with no religious mission, such as Hobby Lobby, include contraceptive coverage in their health plans as was done under Obama.
The abortion rate is highest in countries that ban abortion, lowest where it is legal. Perhaps because these countries are poor, and the women lack access to reliable contraception. One of the biggest and best NGOs is Catholic Relief Services, but the bishops have stopped them from providing condoms - previously distributed both for HIV/AIDs prevention and birth control. Do the "pro-life" people EVER think about the poor - in our country and in the third world where they have succeeded in preventing even the distribution of condoms to people whose lives may depend on them?
It is, as you say, unlikely that the Alabama law could survive a traffic court hearing. But it's like the options the Pentagon gives the presidents: A) Nuke them, B) Send a few companies of trainers to support local forces and use air power to take out the enemy's infrastructure, or C) Surrender. Not surprisingly, B is the option usually chosen.
DeleteThe Alabama law is an A. The B will be restrictions on abortion that look, by comparison, moderate. Alito, Thomas,Gorsuch and Kavanaugh vote aye; what about it, Chief?