Saturday, October 31, 2020

The Last Obstacle

This week's confirmation and late night swearing in of Justice Amy Comey Barrett sealed the deal for ultra-right lawmakers in their quest to pack the court with like-minded judges, in both the Supreme and the Federal Courts. As they say, presidents come and go but judges are in for life, so the legacy of the unholy alliance of Trump/McConnell, regardless of the outcome of next week's election will no doubt last for decades.

The good news is that judges are supposed to be independent minded people in theory anyway, swayed more by the law rather than ideology, which is why justices on occasion surprise us with their rulings. Such was the case in 1973 when the landmark Roe vs. Wade case was decided. The majority opinion was written by Justice Harry Blackmun, a Nixon appointee. Blackmun was expected by many, presumingly the president as well, to be another loyal foot soldier for the conservative agenda, but he was anything but that. In his numerous biographies, Blackmun is often sighted as the most liberal justice of his day.

Of course those were different times. The vote in favor of the ruling that decided our government could not stand in the way of a woman's right to obtain a legal abortion within the first trimester of her pregnancy was 7-2. Six of those seven votes were cast by Republican appointed justices. Justice Byron White a Democratic appointee voted in the minority.

According to Blackmun, that ruling was a critical step in the long struggle for the emancipation of women. Depending upon your point of view, that statement is either a clarion call for equality between the sexes, or the signature on a blank check enabling the murder of millions of innocent children. The abortion issue is undeniably our most heartbreakingly divisive issue. Simply put, compromise is elusive if not outright impossible.

Yet in order to heal the vast wounds this country is facing, how are we going to proceed without coming toward some semblance of compromise?

As I've mentioned in this space before, I've struggled with the issue of abortion for over forty years, ever since the first time a woman felt the need to tell me she missed her period. Either through prudence or just dumb luck, I never had to be party to a decision on what to do about an unwanted pregnancy that I was fifty percent responsible for. Nevertheless I've spent countless sleepless nights since then pondering the issue and how we as a nation should come to grips over the laws regarding abortion in this country.

Despite having been a settled issue for nearly fifty years now in the courts, abortion has been anything but settled in the court of public opinion. To be sure I've had strong opinions over the past 40 plus years. Yet those opinions were based upon arguments that I never really considered air tight. Inevitably moral and ethical questions would come up that would challenge my position. Not until recently had the last obstacle to my opinion been removed, at least for the time being. I'll get to that later.

First I'd like to walk through three separate but entangled categories that need to be evaluated when making up one's mind about how our country should proceed at a time when the overturning of Roe v. Wade is a very distinct possibility.


Some might be surprised to learn as I was that a century before Roe v Wade, abortion was legal in the United States, so long as it was performed before fetal movements could be perceived (around the 20th week of a pregnancy), It's also commonly thought that Roe v Wade opened the door for legal abortion in this country, but that's a slight overstatement. At the time of the decision some states already had liberal abortion laws. Others banned it completely, while still others allowed abortion only in certain circumstances such as in the case of rape or incest, or where the mother's life was compromised. This last case formed the basis of one of the arguments in the lawsuit against the State of Texas that would result in Roe v Wade. The litigants argued that the Texas law outlawing abortion except when the health of the mother is threatened was ill defined, vague and arbitrary, and therefore unconstitutional.

More famously, the litigants argued that the abortion law violated a woman's right to privacy, which as they claimed, was guaranteed by the first, fourth, fifth, ninth and fourteenth amendments of the Constitution.

Legal scholars on both sides of the abortion debate have argued that in regards to the privacy issue, Roe v Wade stands on rather flimsy ground, some going so far to claim the justices pulled the notion that the Constitution guarantees the right to privacy "out of thin air." .

Foreseeing this problem, in his opinion Justice Blackmun wrote this:
The Constitution does not explicitly mention any right of privacy. In a long line of decisions, however, the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.
Among those rulings cited by the court were Meyer v. Nebraska and Pierce v. Society of Sisters which both involved parental control over childbearing, and Griswold v. Connecticut, which overruled that state's ban on the use of contraceptives among married couples.

The dissenting opinion to Roe, written by Justice William Rehnquist, challenged the extent to which the majority interpreted the five amendments' application of privacy as it concerned abortion, and a in a separate dissent, Justice Black argued on behalf of the rights of the unborn. 

You may ask what rights exactly does the constitution provide the unborn? Well the fourteenth amendment is rather clear in its definition of who is entitled to equal protection under the law. Here is section one:
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.
Notice the word "born". It does not say conceived. One could interpret this clearly to mean that under the Constitution at least, the unborn have no discernable rights. 

Sounds heartless doesn't it? 

But anyone with any bit of sense understands that there is a world of difference between a one week old embryo and a nine month old fetus and everything that comes between in terms of consciousness, cognitive ability, the ability to feel pain, and a whole slew of other traits that make a human being, human. Because of this, the majority declared that the right of a woman's privacy regarding her pregnancy was not absolute. Rather Roe would only apply to the first trimester of a pregnancy, after that it was back in the hands of the states:
A State may properly assert important interests in safeguarding health, maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. ... We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.
— Roe, 410 U.S. at 154.
In essence one could say that both sides were pulling their conclusions out of thin air, as quite obviously the authors of the constitution and its subsequent amendments did not address the issue of abortion. 

This is where the ninth amendment comes in. At her hearings, Justice Barrett was questioned about this important yet vague portion of the Constitution which states: 
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
In other words, the rights described in the Bill of Rights, are not the only rights citizens the United States are afforded. Common sense should dictate that certain rights such as the right to privacy, while not explicitly stated in the constitution, is a basic enough right to stand on its own and the protection of it is in fact the very basis for the existence of the fourth, fifth and fourteenth amendments.

However the ninth amendment in this case is a double edged sword. Certainly the right to life is the right that trumps all others. Those against abortion claim that life does not begin at birth but rather at conception, so the unborn victims of abortion in their view are being denied that very basic right. Again the majority and Justice Blackmun saw that one coming:
We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, in this point in the development of man's knowledge, is not in a position to speculate as to the answer.
— Roe, 410 U.S. at 159.
But by making the end of the first trimester the cutoff point for personal privacy, isn't the Court determining in effect that to be the beginning of life? Yes we can argue this point forever.

In this interview with Justice Blackmun, Bill Moyers points out that the constitution is malleable, it can adapt to the prevailing current in which society operates at any given time. He uses a few examples including the fact that before 1865, the very same Constitution we observe today, allowed slavery.

Given that, as much as we want our Constitution to be the crystal ball that gives us the definitive answer to all our questions regarding which rights are ours and which are not, we have to look elsewhere. 


Laws whether they be statutory or ethical, do not exist in a vacuum. When a new law is enacted, it has consequences, many of which are not intended. 

I suspect that the vast majority of so called "Pro-lifers" haven't put much thought into considering all that a post Roe v Wade United States would entail. First of all, it wouldn't ban abortion in this country, rather it would leave that discretion completely up to the states. It is very likely that we would return to where we were before 1973 when every state had its own set of laws regarding the procedure from abortion on demand, to an outright ban, to the many intermediate stops in between. 

Women seeking abortions in states that prohibit them, if they have the means to do so, could travel to another state to obtain one. Or if they have the extra means, they might hire a doctor willing, for a steep price of course, to perform the procedure in the comfort of her own home, naturally without telling anyone. Women who don't have the means for either, might resort to what were once known as a "back alley abortion", performed by someone who shall we say would have a significantly lower skillset and toolkit than a bonafide doctor or midwife. Or she could try to induce an abortion herself. 

My point is that legal or not, if a woman wants an abortion, she will find a way to get one, even at the risk of her own life and liberty. 

Another issue is enforcing the ban on abortions. What kind of punishment will be meted out to people who violate the law? Most supporters of the repeal of Roe v Wade assure us that no, women seeking abortions would not be punished, but rather those who provide them. OK what then about women who induce themselves to miscarry? 

Well that's a different story...

It is entirely conceivable that women who induce their own abortions would indeed be prosecuted. Which brings up the dystopian scenario of women who miscarry for whatever reason, (between 10 and 20 percent of all known pregnancies) being required by law in certain jurisdictions to undergo an official investigation to determine the cause of her miscarriage. Never mind the governmental intrusion during a particularly traumatic and painful moment in a woman's life. Remember the Supreme Court in overturning Roe v Wade will have determined that no, the Constitution does not guarantee the right to privacy when it comes to reproduction. So you can forget about the protection of the fourth amendment which bans unreasonable searches, If overzealous police or prosecutors determine there is cause to believe a crime has been committed, i.e.: a possible self-induced abortion, what's to stop them from investigating miscarriages as long as they obtain the proper warrant from a judge? 

Then there's the issue of the severity of the punishment. If abortion is indeed regarded as murder, it would certainly qualify as first degree, premeditated murder. In some states, the punishment for first degree murder is the death penalty. Crazy as it may sound, yes I have heard people seriously suggest that as a possibility. That would mean in our country,  an action that is entirely legal in one state could land you on death row in another. 

That is truly un untenable situation in my book.


Regardless of your status as a believer or not, it all boils down to right and wrong, at least one's interpretation of it. I chose the word philosophical here because it covers both morality, (the domain of the believer) and ethics, (the domain of the non-believer). Years ago I had a conversation with a dear friend who is blessed with an impeccable moral/ethical compass. We were discussing the death penalty and both agreed that the institution is patently immoral. Playing the devil's advocate I brought up the (long since disproven) argument that it is less costly for society to execute prisoners rather than it is to incarcerate them for their natural lives. Without missing a beat she told me it doesn't matter in the slightest, issues of morality trump issues of practicality, period. 

I bring that up because nagging questions still persist. My mantra for a while now has been this: "Abortion may be a choice, but it is always a terrible choice that sometimes has to be made. Who then should make that choice?" 

The crux of my argument for a very long time has been that if we allow abortion only under certain circumstances such as health of the mother or rape or whatever, where does one draw the line between what is a justifiable abortion and what is not,  and more importantly, who should be responsible for drawing that line? My answer always comes back to one person, the mother.  

The problem with that logic is this: Laws are enacted by and large to protect innocent people from harm. As I don't buy the argument that the unborn are not people, ethically shouldn't I support a law that prohibits the taking of their lives? 

In other words, am I choosing a practical solution over a much less practical but more ethical one? 

The fact is, I still am troubled with abortions that are solely a form of birth control as they are the willful taking of innocent human life. And I have many misgivings about folks in the "Pro Choice" movement who deny or simply ignore that inconvenient fact.  

On the other hand, I know from personal experience that many resources are required to be a parent, and only one of them is money. Truth be told, there are many people who lack the commitment, the courage, the love, the compassion, yes the money but most important, the desire to be parents. Morally and ethically speaking, can an argument be made that abortion might in fact be preferable to forcing a child to be born into a household where he or she is unwanted, unloved and abused?  Which begs the question: is life always preferable to death? Quite frankly I don't have the answer to that question.

After more sleepless nights I came upon the last obstacle mentioned above to my opinion. It revolves around morality and practicality and should in my opinion be applied to the law as well. And as it turns out, the answer is remarkably simple. 

It is a question I have for people who oppose abortion on moral/ethical grounds, including myself. The question is this, what is our objective in the struggle over abortion? I would hope the answer to that question is for there to be fewer abortions. I doubt there are many people in the world who would not agree that would be a good thing. Then from a practical standpoint we must next ask ourselves what is the most reasonable and effective way to accomplish that. 

As I proposed above, making abortion illegal will probably not result in significantly fewer abortions. I admit that to be purely speculation but can provide a vivid parallel. For years in the nineteenth and early twentieth centuries, well intentioned folks preached of the evils of alcohol and the very real damage it was causing society. So in order to "solve" the problem, on January 17, 1920, the United States became officially dry as the government prohibited the distribution, transportation, sale and possession of intoxicating beverages. 

While it's true that the overall number of drinkers in the country decreased, Prohibition wreaked so much havoc in terms of the development of Organized Crime which was well positioned and more than happy to quench a thirsty US, that December 5, 1933 marked the end of the noble experiment and abject failure. 

I have no doubt that the possible overruling of Roe v. Wade will wreak similar if not worse havoc to this country, endless lawsuits being just a minor one, while at the same time preventing few abortions.

I propose there are far more effective ways to achieve fewer abortions in this country than new state laws. One is to make the path easier for parents with lesser means to support their children. By that I mean governmental support. This means higher taxes, the money has to come from somewhere. Another is to ensure universal healthcare. 

Another method to achieve fewer abortions is to help prevent unwanted pregnancies. Unfortunately abstinence is not the answer. Yes it is the most effective method of birth control in theory but in practice it's the least. Contraception needs to be made available, easily accessible, and dirt cheap if not free. And again, that will cost money. 

Oh but contraception is against your religion you say? Well it's your choice, abortion, or contraception. If you are Catholic as I am, you should be more than a little put off by your church's sanctimonious stance on human sexuality when in fact it has lost all moral authority on the subject. I'm sorry to say this but any institution that can't or won't control the deviant, criminal, sexual abuses of its own clergy, has no business telling anyone how to behave when it comes to sex.

Let's face it, if we feel we are taking the moral high ground by opposing abortion, and are truly committed to fewer abortions, then we need to take moral responsibility and put our talent and treasure toward assisting struggling families and helping prevent unwanted pregnancies. It will also help if we show a little more love and compassion toward our fellow human beings, rather than spewing hatred and placing blame on people trying to make the most difficult decision of their lives.

It may not be as much fun as marching for the repeal of Roe and screaming epithets about people going to go to hell for supporting abortion, but it will be a lot more effective if what we truly want is fewer abortions, rather than merely punishing people. 

On the other hand if all we're interested in is overturning Roe, then sitting back and saying our work is finished, well in the words of the Benedictine Sister Joan Chichester that I've published in this space before:
I do not believe that just because you're opposed to abortion that that makes you pro-life. In fact, I think in many cases, your morality is deeply lacking if all you want is a child born but not a child fed, not a child educated, not a child housed. And why would I think that you don't? Because you don't want any tax money to go there. That's not pro-life. That's pro-birth. We need a much broader conversation on what the morality of pro-life is.
So the last obstacle to my deeply held belief that Roe vs. Wade should stand is this simple realization: laws do not solve all of our problems. Well intentioned or not, laws always have unintended consequences. In order to evaluate whether or not to implement a new law, or in the case of the Supreme Court, pave the way for such a law, much thought and reason must go into realistically evaluating how much the law will actually address the problem it was created to fix, as well as an honest and thorough examination of all the unintended problems it could create. 

As I said above, laws do not exist in a vacuum, they effect for better and worse, the lives of everyday people. If a new law regardless of its good intentions, creates untold anguish and suffering on top of not having much chance to fulfill its very purpose, then quite honestly we are much better off without it. 

It is my strong opinion that the Pandora's box of new state abortion laws enabled by the potential overturning of Roe vs. Wade, perfectly fits that description, and I respectfully urge the members of this Supreme Court to look beyond their ideological and religious biases, to the potential  suffering these new laws could bring to countless of Americans, and then rule accordingly.

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