Oh, That Explains It!

fuzzy headed

Kathleen Parker has helpfully explained that Alabama and Georgia enacted their new abortion laws because of pro-abortion extremism in New York and Virginia. 

Georgia legislators apparently cannot think for themselves, while Alabama senators are devoid of any moral agency. This is helpful information.

Moreover, I am pleased to report, the above insight comes nowhere near exhausting Ms. Parker’s fountain of wisdom. She goes on to explain,

Where insight fails, facts are often helpful: Biologically, life begins at conception. Full stop. A fetus is not part of a woman’s body except as is umbilically necessary to sustain its life. Otherwise, it is a free-floating human being with its own unique DNA. If left to develop according to nature’s course, the little tadpole would become a fully formed human baby and, barring unforeseen circumstances, grow up to become a regular reader of this column.

I will pass over the fact that a sperm also has its own unique DNA, as does an unfertilized egg.

And the fact that, if it were literally true that “life begins at conception,” then conception would involve the union of two non-living substances, as if you were mixing salt and talcum powder, and voilà, a fertilized egg!

But I will pause to observe that, despite her certainty about when “life begins,” Ms. Parker nevertheless is comfortable calling the Alabama and Georgia position “extremist.” Should we therefore infer that Ms. Parker would be fine and dandy with infanticide, provided the infants in question were born of rape or incest? I think not. She just appears to be confused.

Seven Takeaways

1) The issue of how to regulate abortion will never be solved by competitive hurling of adjectives at 50 paces.

2) The issue will never be solved by scientific fact.

3) The issue will never be solved by showing pictures of a fetus in at some given stage of development and saying, “Looky! Looky! Looky! And, while you’re looking at the pictures, please emote at the maximum possible level.”

4) As a practical matter, the issue will never be solved except by recognition that regulating abortion is not a matter of moral absolutes but instead a matter of finding ways to reconcile competing valid considerations. That, together with an understanding that people who would draw the line differently than you are not necessarily a moral leper.

5) Even if everyone gets off their high horse—and that’s not likely to happen soon, but please indulge the hypothetical assumption—the various states, left to their own vices, would draw the line in very different places.

6) Congress could try to draw the line, but there would be many constitutional and other obstacles in the way.

7) As a practical matter, the only entity capable of drawing the line for the country as a whole is the Supreme Court. That’s exactly what they did in Roe. If they don’t like where Roe drew the line, then they can draw it someplace else, for example, at the “fetal heartbeat” stage.

I hope they don’t, but they certainly could.

Absolute Rights, Competing State Interests, and Autocracy

fertilization

Rachel Larrimore, The Politics of Abortion Are Polarized, But People Aren’t

Michelle Goldberg, Post-Roe America Won’t Be Like Pre-Roe America. It Will Be Worse

American Bar Association Journal,Alabama governor signs abortion ban; which cases are headed to the Supreme Court?

Ginia Bellafante, Abortion and the Future of the New South

Martin Longman, Is Trump the End of Reaganism or the End of Democracy?

A Preliminary Observation on “Extremism” and on Majority Opinion

In many policy debates, including the debate over the regulation of abortion, one may lay out a set of alternative views and arrange them along a spectrum. The policy choices at either end of the spectrum may accurately, and literally, be characterized as “extreme.” But that accurate description tells me nothing—nada, rien, zilch, bupkus—about whether I should or should not adopt one of the competing “extreme” views, or whether it would be best to embrace one of the policy choices in the middle.

When we add in polling data, and the polling data show—yes, friends and neighbors, data are plural—that the majority of our fellow citizens embrace policy options toward the middle of the spectrum, that still tells me very little about which choice is optimal. But these data may tell me a lot about which policy choices are politically viable, or not.

Absolute Rights Versus Competing State Interests

Some claim that legal regulation of abortion should be based on equating a newly fertilized egg with a newly born baby. That is the position enacted into law by the Alabama Legislature: “natural law” gives the same rights to a zygote as it gives to a person, and the Supreme Court should so rule. And, inasmuch as “natural law” applies with the same force in New York as it applies in Alabama, the Supreme Court should outlaw abortion throughout the United States, with no exceptions for rape or incest.

At the other end of the policy spectrum, some assert that, until she gives birth, a pregnant woman has the absolute right to control her body, including the right to terminate the pregnancy. (Again, to say that that policy view lies at one end of a spectrum says nothing whatsoever about whether it is right or wrong.)

Alternatively, the issue may be approached, not as an issue of competing absolute rights, but instead as an issue of competing valid state interests: the state interest in protecting everyone’s right, including pregnant women, to control their own bodies, versus the state interest in protecting potential human life.

From this point of view, there is little moral difference between a newly born baby and a baby who is still in the womb but would be viable outside the womb. Likewise, there is little moral difference between a fertilized egg and an unfertilized egg. It’s a question of where to draw the line: at viability, at the point where a heartbeat is detected, or somewhere else. (And, maybe, one reconciles competing valid state interests by drawing the line at different points in the pregnancy, depending any one of a variety of circumstances.)

Polling data, state legislation, and jurisprudence all show that a large majority of us view the matter as one of competing valid state interests, not absolute and unqualified rights. That tells us nothing about whether the competing-valid-state-interests approach is right or wrong in some metaphysical sense. But it tells us a lot about whether either “extreme” position could prevail without being shoved down the throats of the majority of the population.

Alabama Yearns for Autocracy

The Martin Longman post cited above doesn’t address abortion, but I think it’s an excellent look at how the American right has evolved. In essence, a portion the right—indeed, quite a large portion—have come to understand that they cannot prevail, they cannot keep on living in the kind of society they want to live in, unless they impose dictatorship on the majority of the nation’s population.

That view, in my estimation, is entirely accurate. So I don’t fault them for an inaccurate understanding of reality. Because I think their understanding of reality is correct.

Nor, as an abstract matter, do I find fault in their belief that some principles justify ignoring the will of the majority. Pretty much every progressive believes that, too.

Hurling adjectives like “extreme” or “anti-democratic” won’t cut the mustard. We must fight, and fight to the finish. That is, if we want to keep living in an inclusive, just, and reality-based world.

The Fallback Position: Autocracy on the State Level

Alabama wants a national autocracy, led by a theocratic Supreme Court majority. By contrast, all of those states that have passed fetal heartbeat bills are saying, overturn Roe, return abortion regulation to the states, and just let us, in our little reactionary enclaves, adopt a form of competing-valid-state-interests analysis that heavily emphasizes the interests of fetuses versus the rights of women.

To Cert or Not to Cert?

As I noted recently, any four Supreme Court justices can force the Court to hear a case.

In a 2016 dissenting opinion, Justice Thomas flatly declared that the constitutional right to abortion is bogus: there is no such right. In a separate dissent in the same case, Chief Justice Roberts and Justice Alito allowed as how the existence of the right to an abortion was highly controversial, but was not at issue in the case before them. Now, Roberts, Thomas, and Alito have been joined by Gorsuch and Kavanaugh.

What will happen now? Of course, I don’t know, and neither does anyone else.

Most likely, five of the nine justices are of the view that there is no flat constitutional right to abortion, even on the morning after the night before. That implies that states may limit the right to an abortion. It does not necessarily imply that zygotes have a constitutional right to life, and that said constitutional right applies in New York just as it applies in Alabama.

Nor, as a matter of legal logic, would overturning Roe necessarily imply that the states are free to regulate in ways that entirely disregard a pregnant woman’s rights.

But, that said, if Alabama wants to require a 13-year old raped by her uncle to carry the child to term, what is the constitutional principle that would limit Alabama’s legislative choice? Once you have overturned Roe on the ground that there is no general constitutional right to an abortion, it’s  really awkward to turn around and discover a constitutional right to an abortion in some situations, but not others.

And, apart from the jurisprudential awkwardness, there is also the political hornet’s next you’re knocking over—and that’s a big threat to continued plutocratic Republican rule, which is the thing you really care about. Thus, you would think there might be multiple reasons why it might be hard to get four votes for cert, in advance of the 2020 election.

On the other hand, with all those fetal heartbeat laws, it’s gonna look pretty cowardly to decline cert in each and over appeal.

In sum, I think that the five musketeers are up the creek without a paddle. And it couldn’t happen to a nicer bunch of guys.

The Alabama Human Life Protection Act

hoc est corpus

Text of the Alabama Human Life Protection Act

Prof. Mary Ziegler, Abortion Opponents Think They’re Winning. Have They Set Themselves Up to Fail? Alabama, Georgia and the fetal personhood trap.

Washington Post, Abortion ban reaction: Democrats erupt, Republicans stay quiet as both sides see an impact in the 2020 election

The Theology of Abortion

When the priest says the words, “Hoc est corpus,” a bakery product symbolizing the body of Christ is transformed into the actual body of Christ—at least, according to one theological position.

A sperm has the potential to fertilize an egg and, in the fullness of time, become a baby. An unfertilized egg is likewise a living organism with the potential to be fertilized and, in the fullness of time, become a baby. A fertilized egg is a living organism that also has the potential, in the fullness of time, to become a baby.

The distinction between the fertilized and the unfertilized egg is that, according to one theological position, just as “Hoc est corpus” transforms a bakery product, so also fertilization corresponds with the fertilized egg’s possession of an immortal soul.

Yesterday, the state of Alabama, invoking alleged principles of universal human rights, enacted a sectarian theological position into law: fertilized eggs are the moral equivalent of babies.

The Moral Equivalent of Genocide

Lest there be any doubt about its views, the Legislature, in Section 2(i) of the new law, declared that the 50 million abortions performed since Roe v. Wade were worse than Hitler’s genocide, Stalin’s murders, or Pol Pot’s murderous regime. They threw in The Rwandan genocide for good measure. (Inexplicably, they omitted to mention the ethnic cleansing of Native Americans in Alabama and elsewhere, or the loss of life among kidnapped Africans.)

An “Extreme” Position Required by Logical Consistency

After an emotional debate, the Legislature rejected any exception for rape or incest. It’s a universal human inclination to want to pin adjectives onto complex situations. Accordingly, many have employed the word “extreme” to describe a law requiring a rape victim to bear her rapist’s child.

Actually, while you may use whatever adjective suits your fancy, denying an exemption for rape or incest is an exercise in consistency. Because actual babies born of rape or incest are morally equivalent to all other babies.

But, Oddly, Also An Extremely Inconsistent Position

The first sentence of Section 5 of the Alabama law provides, “No woman upon whom an abortion is performed or attempted to be performed shall be criminally or civilly liable.” On the other hand, physicians who perform abortions commit a Class A felony, punishable by imprisonment from 10 to 99 years. (Prior Alabama law—unenforceable under Roe—had previously applied both to mother and physician, and had made abortion a misdemeanor.)

So, as far as physicians are concerned, a fertilized egg is the moral equivalent of a baby and if they perform an abortion they are the moral equivalent of the Nazi doctors.

But as far as pregnant women are concerned, a fertilized egg is not the moral equivalent of a baby, it is the moral equivalent of a sperm or an unfertilized egg. (And, per the language of the statute, that rule applies if the woman successfully seeks illegal sub rosahelp in the abortion, or if she manages to abort herself.)

You really have to do some serious damage to your mind if you think a zygote is a baby for one purpose but not a baby for another purpose.

As they like to say in Alabama, that dog won’t hunt.

What Will the Courts Do?

I assume the Alabama district courts and the Eleventh Circuit Court of Appeals will enjoin enforcement of the statute, citing Roe v. Wade and other binding precedent. (If they judges are Fetus People, they can feel free to insert some dictum imploring the Supreme Court to overrule Roe and purge the nation of its wickedness. But it will only be dictum.)

Will the Supreme Court “Take Cert”?

Supreme Court review of lower court decisions is discretionary, not mandatory, and the Court decides to review only about ten percent of the cases where appeal is sought. (The decision to review is called granting a writ of certiorari, or “taking cert” for short.)

Here, the Supreme Court could decide just left the inevitable Eleventh Circuit decision against the Alabama law stand, without any further consideration (and thus “deny cert”). Last evening, I refreshed my recollection about how many justices can force the Court to “take cert.” The answer is four.

So, if Thomas, Alito, and Gorsuch want the Court to take cert, overturn Roe, and uphold the Alabama law, they will, in the first instance, have to get either Roberts or Kavanaugh to join in, so that there will be at least four votes for cert.

A Cloudy Crystal Ball

Lots of people—including lots of people who know a damn sight more about this stuff than I do—are making predictions about how this will all play out. Having, myself, suffered humiliation in the past from making wrong predictions about how the Supreme Court would decide antitrust cases, my strong sense is that no one know what will happen, including any of the nine folks in the black robes.

Winnng by Losing, Losing by Winning

But we are on much more solid ground in predicting political fallout. If all five of the Republican justices—Chief Justice Roberts, and Associate Justices Thomas, Alito, Gorsuch, and Kavanaugh—are the inveterate anti-abortionists that some hope, then they will take cert on the Alabama law or on one or more similar laws in other states, consign Roe to the dustbin of history, and leave abortion to the states.

If that happens—and it may very well happen—the Fetus People, especially the Fetus People who really don’t like Trump very much, will tend to stay home in 2020, while all the progressives will be animated by a white hot anger. If the election is close, this factor could make the difference.

Abortion Jujitsu

If, on the other hand, at least one of the right wingers decides to act, not as an anti-abortion zealot but instead as a Republican political hack, the smart choice would be to keep the abortion issue alive in 2020—on the assumption that every single one of the Fetus People will go to the polls and vote for Trump, so that Trump will get to replace RBG and they will get their no-abortion majority on the Court.

Kavanaugh, in particular, might be well positioned to perform some political jujitsu. He could vote against cert, or vote against overturning Roe in full, thereby simultaneously redeeming his promise to Susan Collins and doing his bit to reelect Trump. I wouldn’t put it past him.