gracchusdixit

The current term of the Supreme Court of the United States is about to come to a close. After handing down a series of major decisions at the eleventh hour, the court has announced that it will, when its next term begins in October, take up what is sure to become one of the most momentous cases in its history. The fate of Roe v. Wade, the 1973 Supreme Court ruling that at long last gave women the right to make their own reproductive decisions, will hang on the outcome.

Two years ago, the State of Mississippi, which is at once the poorest, least educated, and most “religious” in the country, passed a law that bans abortions with few and niggardly exceptions and criminalizes those who provide them.   This law is not merely draconian.  It was specifically and perversely designed to provoke an all-or-nothing showdown at the Supreme Court.  Under the terms of Roe v. Wade, the Mississippi law is flatly unconstitutional.  Which is precisely the point.  Mississippi’s Republican legislature aims to give the newly emboldened conservative majority on the court a chance to eviscerate Roe or overturn it altogether.

Trying to predict Supreme Court decisions is about as useful as casting horoscopes, and nobody knows how all this will turn out.  The fact remains, nonetheless, that at least five, and quite probably six, members of the court seem more than likely to take Mississippi’s bait.

The irony here could not be greater.  Just as anti-abortionists have finally achieved their long-sought goal of securing a decisive majority on the highest court in the land, ordinary Americans have no less decisively concluded that they do not want to see Roe v. Wade tampered with.  In poll after poll, large majorities say they want Roe to stand.  Even in oh-so-religious Mississippi, four out of ten support the right to an abortion under all or most circumstances.

Which is not to say that Americans are unreservedly in favor of abortion.  That is clearly not the case.  It is equally clear, however, that they are remarkably sensitive to the personal and moral complexities involved and are loath to embrace extreme measures on one side of the issue or the other. 

Radical anti-abortionists, both on and off the court, are well aware of the public’s ambivalence, even as they refuse to acknowledge the moral and legal ambiguities of their own views.  Because they know that their chance to roll back the reproductive rights of women is deeply controversial and may be transitory, they are desperate to avoid any misstep that could cost them the moment; so, they have been frantically tweaking their inflammatory rhetoric, hoping to give their radical views a reassuring, albeit false, patina of reasonableness.

Heretofore, anti-abortionists have stridently insisted that “life is sacred,” absolutely and under all circumstances.  Indeed, they have gone further, asserting that the sanctity of life begins the moment a spermatozoon wiggles its way into an egg.  Which means—to them at least—that interrupting gestation at any stage is the equivalent of “murder”.  

Some anti-abortionists still voice these antediluvian notions, including the hierarchy of the Roman Catholic Church and the newest member of the Supreme Court, Amy Coney Barrett.  Like “Bloody Mary,” the Tudor queen who sought to reimpose Catholicism on Protestant England, Barrett would no doubt be quite happy to see the Holy Inquisition and its instruments of torture dusted off and returned to service, so that the heretics among us could receive their just deserts.

Most anti-abortionists, however are shrewd enough to realize that the “life is sacred” drumbeat no longer draws a crowd. That is because, among other reasons, it is ludicrous on its face, coming, as it does, from people many of whom are perfectly happy for police officers to gun down black and Hispanic Americans, see no problem in inflicting capital punishment on the guiltless victims of a racist legal system, insist on the right of psychopaths to own lethal weapons no matter the cost to the rest of us, and are shockingly indifferent to economic and social conditions that crush the life out of those less fortunate than themselves. Anyone but a moral troglodyte can see that those who call themselves “pro-life” have a very selective view of which lives are “sacred” and which lives are not.

Thus it is that cannier anti-abortionists have turned to alternative and presumably more palatable strategies.  One of these is the preposterous claim that overturning Roe v. Wade would somehow be more “democratic” than leaving the fate of reproductive rights up to the Supreme Court.  Here is how one anti-abortionist recently made the case in the editorial pages of the Washington Post:

Almost every other developed country has made abortion legal, and they did so almost uniformly through democratic debate…as such, the resultant settlement is supported by all major political actors.  This fact has given secure access to abortions for women who want them.  Overruling Roe would return abortion policy to where it was previously: the people of each state.  Liberal states such as California or New York would surely pass bills allowing abortion well into a pregnancy…Meanwhile, conservative states such as Mississippi would pass laws banning or severely restricting abortion.  Even conservative states, however, would likely retain exceptions for cases such as those that threaten a mother’s life.  This surely will distress activists on both sides, but over time, democratic compromise will win out. 

This argument is so riddled with illogic and intellectual bad faith that one scarcely knows where to begin. To say that “almost every other developed country has made abortion legal, and they did so almost uniformly through democratic debate” does not lead to the conclusion that the reproductive rights of American women should be left up to the states. To propose, as the author does, that there is something “democratic” in allowing “liberal states” and “conservative states” to reach entirely different decisions regarding fundamental rights is not only absurd but immoral. In a democracy, fundamental rights belong to everyone, no matter where they live. Which is precisely the situation in the other “developed” countries the author cites.

This sort of addled reasoning has been going on for a very long time.  The late Supreme Court Justice, Antonin Scalia, famously observed that “the Constitution says nothing about abortion,” by which he meant to insinuate that no branch of the federal government has any business meddling in the matter.  Like so much of what Scalia had to say, this slippery remark was intended to justify his own prejudices.  No less than Amy Coney Barrett, Scalia was a revanchist Catholic and a staunch opponent of reproductive rights.  For Scalia, handing the decision to the states was a sleight of hand, intended to slice those rights to pieces, one state at a time.

The problem, of course, is that Scalia’s observation cuts both ways.  Just as the Constitution has nothing to say about abortion, it also has nothing to say about automobiles, airplanes, or the airwaves, but the federal government has been regulating all three for decades, with the explicit approval of the Supreme Court.  All the while the Constitution says nothing to guarantee a woman’s right to an abortion, it says nothing to deny that right.  Nor does it say anything to prohibit the federal government from enforcing such a right on a national basis.      

As if sophistic arguments about “democracy” weren’t shameful enough, anti-abortionists have adopted another, even smarmier tactic, which is to express lavish empathy for the “difficult choices” confronting women but to conclude, oh so reluctantly, that their personal—for which, read “selfish—freedom must give way to the greater moral good.  Here is how one anti-abortionist put it:

I understand how tough this decision is.  But after much thought, I have reached the conclusion that the ‘moral balance” comes down on the side of protecting the life of the unborn child, just as we must protect the lives of young children who cannot care for themselves.  Anything else would be murder.  

Like most flawed arguments, this one hinges on a false premise.  Just as there is no such thing as an “undead corpse,” there is no such thing as an “unborn child”.  The organism that occupies a woman’s womb is at various stages a zygote, embryo, or fetus—but it is not a “child”.   Still less is it a “person,” with any of the legal and moral rights that personhood entails.  

Anti-abortionists can deny or decry this reality all they want, but they cannot change it.  That is why they are so desperate to pass laws that would create a fairy-tale category called “fetal personhood”—a logical absurdity without precedent in the Anglo-American (or any other) legal tradition.  One might just as well declare caterpillars to be butterflies or molecules to be men.

The final word on this matter rightly belongs to that icon of libertarian conservatives, the novelist and self-anointed politicalphilosopher, Ayn Rand.  Though Rand had many disagreeable qualities, intellectual cowardice and inconsistency were not among them.  When a difficult, even a terrible, choice had to be made, she rarely flinched.  It is no surprise, therefore, that she confronted the casuistry of anti-abortionists head-on, declaring that “an embryo has no rights…a child cannot acquire any rights until it is born”.  Indeed, Rand went further, dismissing anti-abortion arguments as “vicious nonsense”.  

When it comes time for the Supreme Court of the United States to pass judgment on the reproductive rights of a hundred million American women, let us hope that its conservative members, at least one of whom is an unapologetic devotee of Rand’s ideas, will not only remember her words but abide by them.