GELFAND’S WORLD - Back in the 1960s, Garrett Hardin pointed out that the effect of anti-abortion laws isn't simply the ban of a particular form of surgery. It is compulsory pregnancy.
The argument against compulsory pregnancy is stated most often nowadays as, "I have the right to control my own body." The anti-abortion side says, "No you don't." Distilled down to its essence, this is what the leaked Alito decision says.
Compulsory pregnancy is not without its risks. Abortion is many times less risky than compulsory pregnancy followed by delivery, particularly when you look at the death toll.
Semantic aspects of abortion considered
In 1967, Hardin wrote an essay titled Semantic Aspects of Abortion. He considered the various antiabortion arguments that were prevalent in the day ("then you would have aborted Beethoven"), refuted them, and ultimately declared that abortion is the birth control of last resort.
You may notice that this is an opinion that diverges from the countervailing idea that God creates a soul in the fertilized egg at the moment of conception. The latter view is generally stated (rather disingenuously) as "life begins at conception." It is clearly understood that this is meant as a religious understanding, where the word "life" means human life, sacred to God and ultimately to possess an immortal soul.
An argument by anti-abortionists that compulsory pregnancy is a good thing
It is interesting that one argument made by antiabortionists is that you will learn to love the child that you originally did not expect, and you will change your mind on the fact that you originally wanted to abort. This is a curious, although not unexpected argument. There are women who made a difficult choice to stay with a pregnancy and are relieved and grateful to have a beloved child. That does not mean that every woman with an unexpected pregnancy is willing to have her mind changed by force, through childbirth, as will now be demanded by state law. One might imagine a woman with a positive pregnancy test saying to herself, "I can imagine a different future where I will be a loving parent, and will have a different point of view at that time, but I do not choose to take that route in my life."
In this sense, choice really does mean choice.
The lessons of the recent revelations
There are a number of lessons coming from the draft Supreme Court decision that would overturn the Roe v Wade decision of 1973. The first lesson is the understanding of why, for some people, Donald Trump was the greatest president in their lifetimes. The explanation is that for the determined antiabortionist, he was. It's taken a number of conservative Republican presidents to pack the Supreme Court for this decision, but he is the one who finally delivered the goods with his three appointments. This is a minor lesson in the long run, but it does answer one perplexing question.
Another lesson is that federalism, as self-defined by this decision, is a lousy idea. It sacrifices individual freedom for state power.
A third lesson is that the Supreme Court is now publicly viewed as politically partisan and, to be blunt, just another crew of political hacks. Late night television has been running clips of the three Trump appointees telling the senate that Roe v Wade is settled law. The Trump Three haven't taken very long to reveal their true position, which is the exact opposite of what they said in their sworn testimony.
They can argue that this was an exception, or something similarly illogical, but they will be viewed as liars by the majority of the American public for the rest of their careers.
The Supreme Court was viewed as politically skewed by the right wing in the era of the Warren court, back when the major civil rights decisions were coming out. So attacks on the Supreme Court are nothing new. But now the left wing (and, I suspect, most centrists) will view the court in the same way.
The political background
There has been a lot of speculation about who the leaker was, and his intent for leaking. One of the better guesses is that it was Sam Alito (the author of the draft) who himself leaked it. The intended effect would be to intimidate the three Trump appointees from changing their votes or even trying to modifying the decision. And Alito would have a reason to fear this happening: Chief Justice Roberts has likely been lobbying among his brethren to make the decision less politically charged; this could be done by a simple statement that they are not reversing Roe v Wade, but still outlawing abortion as a practical effect. One way to do this would be to uphold the Mississippi rule that forbids abortion after 15 weeks, which would be as close to an antiabortion rule as it's possible to have without enacting an outright ban.
But the antiabortion folks want to cut a scalp and wear it on their belts, and that is apparently what they have now done.
Of course the other likely effect of revealing the decision at this time is to get the information out to American voters before we have the next round of primary elections, and well in advance of the November midterm elections. The message is that elections have consequences, and the loss of your personal freedom is one such consequence of failing to vote in previous elections. Well -- now you know, and there is still time to replace some of the worst senators such as the Republican from Wisconsin.
Perhaps the effect will be to motivate women (of all ages) to decide that they should defend the rights of all women to make their own choices. It's not going to work for committed antiabortion women, but it could motivate a substantial number of women who haven't been in the habit of voting.
Attempts at spin
It's curious how differently the right and left wings have discussed the leak. The center and the left treat the draft as the likely verdict, perhaps to be modified by a few cosmetic changes but overall a largely accurate approximation of the final result. The right wing began by concentrating on their outrage that a leak occurred -- this coming from career politicians who live by the leak -- or that it's just a draft that may be changed or modified or revoted etc. etc. In other words, the pro-choice side has discussed the substance of the decision while the anti-choice side has flailed its arms over the method by which the truth came out.
An aside -- The Supreme Court justices making up the conservative core of the court were mostly appointed by presidents who failed to receive a majority of the popular vote and were confirmed by senators who represent considerably less than half of the American people. That's the system that the founders bequeathed us, one in which each state has two senators and the president is elected by the combined electoral votes of the individual states. We might also remember that this was the compromise that kept the slave states in the union, that it continues to skew our federal elections toward rural, conservative states, and that there is little that we can do about it in this lifetime.
Federalism, whatever that is
This is also a victory for the Federalist Society, that group of lawyers, law students, and academics that has made itself the voice of conservatism for the judicial branch. It has worked since the 1980s to move the courts towards the right; it has done so by getting its nominees appointed to the federal courts, including the Supreme Court.
But what is federalism, actually? When you read the description of the society on Wikipedia, you get a mish-mosh of terms such as "original intent" that turn out to be buzz words for being reactionary. What are these people reacting against? It would appear that it's the civil rights decisions of the 1950s and 1960s that took certain powers away from state and local governments. These were, among others, the power to segregate by race, the power to forbid the use of contraceptives and the use of abortion, the right to marry someone of a different race, and the right to go to public schools without being compelled to recite a prayer from someone else's religion.
The federalists also argue against unnecessary regulation of business. In practice, this comes down to opposing rules that limit the dumping of waste into public waterways, the ability of workers to unionize, and anything else that gets in the way of making a profit. It's not a completely bad philosophy when what you are opposing is the unnecessary and useless regulations, but it becomes a problem when you are simply being a mouthpiece for corporate management.
But in the current leaked decision, the Federalist Society has managed to accomplish something that ought to go against any line of conservative thought that celebrates personal freedom. This court has gone whole-hog for states' rights over personal liberty. Republicans (including on these pages) continue to claim that they are the party of liberty, but this decision belies that claim.
There is a deep gulf in belief patterns here. Antiabortionists view the fetus as human life which must be protected (with all the religious underpinnings that have to be involved in this train of thought) while prochoice people view the whole person (with or without a blastula or early stage fetus) as deserving of personal autonomy. Maybe it's the argument of responsibility vs licentious license (as the right wing would put it) or maybe it's the cause of being free to chart one's own life, as the prochoice side would put it. There is clearly a divide that is wide, and fairly permanent.
That 80% number
Some of the television news stations have been flogging the point that when polled, about 80% of Americans said that the right to abortion should be left alone. It certainly goes against the struggle by the antiabortion side to get a small but sufficient number of people in power in a few places (the Supreme Court, the Senate, state legislatures in red states) so that they can go against the majority of the American people. That might be the best definition of federalism as defined by the Federalist Society.
A national anti-abortion law
There is a strong core in the antiabortion movement who believe (and some who state openly) that states' rights is merely a tactic to get the Roe v Wade decision out of the way. They want a national antiabortion law, which would have to come from the congress and president. It is an unlikely thing at the moment, but the leaked Alito decision would get rid of unconstitutionality as a bar to that happening. Some conservatives like to describe states' rights as the idea that the states are the laboratories of democracy. The hypocrisy of this position will be revealed when the conservatives propose the national anti-abortion rule.
Who is to blame?
One colleague said, "You won't like hearing this, but Ruth Bader Ginzburg is partly to blame, by not retiring when Obama could have appointed her successor." I see it a bit more broadly, but there is merit in this view. We can also point to the large numbers of Americans who would vote for Democrats were they to vote, but didn't get around to it. Apparently, they weren't angry enough at the time.
(Bob Gelfand writes on science, culture, and politics for CityWatch. He can be reached at firstname.lastname@example.org)