Absolute Rights, Competing State Interests, and Autocracy


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.