Tag Archives: Roe v. Wade

The Fix Is In at the Supreme Court

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The draft opinion overturning Roe v. Wade is built on the assumption fetuses deserve special treatment while denying that assumption is being made. Liza Batkin explains with “Deceit in Plain Sight” for the New York Review of Books:  

Justice Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization would have you believe that the forthcoming decision to overrule Roe v. Wade is a display of great judicial restraint and independence. The draft is written in the language of solemn duty: we do not want to take away abortion rights, the conservative justices say, but it does not matter what we want. “We can only do our job,” Alito writes, “which is to interpret the law,” and to do so regardless of personal preferences or public opinion. In the draft decision’s logic, it was Roe that exercised “raw judicial power” and Dobbs that will remedy this error by returning “the issue of abortion to the people’s elected representatives.”

These claims to neutrality and humility should make you nauseous and irate. For one thing, they come in the middle of a decision that would wield extraordinary power, disposing with a nearly half-century-old fundamental right and reshaping the lives of millions of Americans. It’s also skin-crawling that these justices pretend to be concerned with empowering “the people” through their representatives after eroding the voting rights and electoral rules that would have allowed them to be adequately represented.

This performance of duty comes from justices who have routinely championed religious interests, were nominated by Republican presidents, and have all been affiliated with the Federalist Society, an organization dedicated to promoting conservative legal ideology. While only Justice Barrett has made explicit her personal opinions about abortion, stating in a co-authored law review article in 1998 that it is “always immoral,” the others are clearly not sacrificing their moral or political views for some higher charge.

You don’t need to look very far to see that the decision is a power grab cloaked in false modesty. The flaws in the majority’s central argument, that Roe was wrong to recognize a fundamental right to abortion, have been well-exposed elsewhere. But there is another deceit at play here: while claiming fidelity to the constitutional text, the majority’s draft is steeped in unexplained views about the importance of protecting fetuses at all stages of development—views that do not come from the Constitution but have traditionally been the purview of conservative and religious antiabortion advocates, and that are exactly the kind of personal belief the majority claims not to rely on.

The issue of abortion since Roe has been a battle between competing rights: a pregnant person’s right to control their reproductive choices, and the state’s interest in protecting the potential life of a fetus. To balance these different interests, the Court has historically tried to avoid opining on the legal or moral claims of fetuses, since the issue teems with conflicting beliefs. One way to establish when the state’s interest in protecting potential life becomes compelling, the Court recognized in Roe, was to determine “when life begins.” But after a brief survey of opposing religious, philosophical, and theological views, the Court steered clear of the mire and landed instead on the line of viability, which protects the right to abortion until the fetus can survive outside the womb.

If you take Alito at his word, the Dobbs majority has managed to sidestep this balancing act altogether. The draft decision proclaims that it is “not based on any view about when a State should regard prenatal life as having rights or legally cognizable interests” and says little about the source, strength, or timing of the state’s interest in potential fetal life.

But the majority has not avoided the issue. While claiming high-minded neutrality, they hint over and over at views about the importance of protecting fetal life. Early in the opinion, Alito explains that abortion “is fundamentally different” from all other liberty interests “because it destroys what [Roe and Casey] called ‘fetal life’ and what the law now before us describes as an ‘unborn human being.’” As a result, the right to abortion presents a distinct and “critical moral question.” The draft makes this point four times.

There is, however, no reason to assert that abortion at all stages of a pregnancy presents a unique and “critical moral question” unless one already gives weight and legitimacy to moral claims for the protection of fetuses at all stages of development, starting even as soon as conception. How else can we explain the draft opinion’s circular insistence that the right to abortion is different from other rights simply because it destroys fetuses, which merely defines what an abortion does?

The terms the draft uses, too, are revealing. In veering from the “potential life” invoked by Roe and Casey and repeating without qualification the language used by the Mississippi legislature along with antiabortion amicus briefs that defend the rights of the “unborn human being” and the “unborn child,” the majority divulges its allegiances. The footnotes tell the same story. In addition to citing a large array of prior dissenting opinions by conservative justices which have no legal authority, the draft draws on amicus briefs and articles dedicated to proving that fetuses are people. Alito’s majority does all of this while claiming that it “has neither the authority nor the expertise to adjudicate” disputes about “the status of the fetus” and citing language that courts must not “substitute their social and economic beliefs for the judgment of legislative bodies.”

While we rally to protect the right of pregnant people to make decisions about their bodies and futures (and desperately hope that this draft decision does not become law), we should recognize what’s going on here. The [reactionary] justices are preparing to abuse their power, cause grievous harm, and treat us—the “people” they pretend to empower—like fools, assuming we won’t notice the contradictions they’ve left in plain sight.

Remember the 9th Amendment: The Legal Basis for Roe v. Wade

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The first ten amendments to the US Constitution are known as the Bill of Rights. We’ve all heard of the 1st amendment (free speech, separation of church and state, etc.), the 2nd amendment (we can own muskets in case the British come back) and the 5th (what you can “take” when they ask you an embarrassing question). But hardly anyone knows about the 9th amendment. We should though, because this is what it says:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

This amendment made obvious sense, since it would have been impossible for the authors of the Constitution to list every right people have (e.g. the right to brush your teeth, the right to hold stupid opinions, the right not to watch college basketball in March). And some obvious rights are hardly worth mentioning, like the right to make important decisions for yourself or the right to privacy in the conduct of your daily affairs.

Yet certain members of the Supreme Court, all of whom went to law school, are forgetting about this particular amendment (even though it’s been around since 1789).

I have no legal training. I haven’t read the 1973 opinion in Roe v. Wade or the 1992 opinion in Planned Parenthood v. Casey, the two principal cases in which the Supreme Court decided that women should usually be able to end their pregnancies. I haven’t read this week’s draft opinion in Dobbs v. Jackson Women’s Health either. That’s the opinion that will overturn Roe and Casey if it becomes official. It’s also the opinion that would theoretically allow a future Congress to make abortion illegal in the whole country.

Yet most people would agree that if a woman can find a doctor who’s willing and able to perform a recognized medical procedure and the woman has the necessary health insurance or can afford to get it done, whether or not she has the procedure is nobody else’s business. Whether that’s because all of us have a right to privacy, a right to make important decisions for ourselves or a right to control our own bodies doesn’t make any difference. None of this should be controversial.

The five most reactionary Catholics on the Supreme Court apparently think it is. They don’t see any mention of abortion in the Constitution. They don’t see any specific reference to personal privacy. On that basis, they think it’s fine for the government to interfere with a woman’s decision to end her pregnancy.

But I’m wondering why the hell a woman shouldn’t be allowed to end a pregnancy if she wants to.

The only reasonable basis for controversy is that fertilized eggs often turn into fetuses and fetuses often turn into babies. It’s “often”, because maybe two-thirds of fertilized eggs don’t result in a birth (one study says it’s more like 50%, but it’s still a significant percentage). That’s not because of abortions; it’s because of the vagaries of human physiology. Pregnancy is a complex process and things often go wrong.

But assuming all goes well, pregnancy usually lasts around 40 weeks (the normal range being between 37 and 42 weeks). There is no point at which a fetus officially becomes a “baby”; doctors call it a “fetus” until it’s born. But doctors typically consider 24 weeks to be the point of potential viability, when an infant can theoretically survive outside the womb. Sadly, for “extreme pre-term” infants, survival isn’t guaranteed at all.

There was no way in 1973 for the Supreme Court to set an exact limit on when abortions are allowed. The only question was where to put the rough limit. They didn’t want to make it too soon or too late. Too soon would interfere with a woman’s right not to become a mother. Too late would interfere with an imminent birth. So the majority on the Court decided that women have a right to end their pregnancy until the fetus can survive outside the womb. Medical science said that this “potential viability” occurs after 24 to 28 weeks of pregnancy.

The Los Angeles Times quotes a law professor who points out that when Roe v. Wade was decided, “there was no Republican-Democrat divide on abortion. In a poll taken shortly before [the decision], 68% of Republicans and 58% of Democrats said the decision to have an abortion should be made by a woman and her physician” (the Democratic percentage was probably lower because Catholics tended to be Democrats back then).

So, after Roe v. Wade, states made laws allowing abortions before viability; some more conservative states specified 20 weeks. Today, according to the Kaiser Family Foundation, “abortions at or after 21 weeks are uncommon, and represent [only] 1% of all abortions in the US”. According to US News, 94% of abortions are performed at or before 13 weeks.

Unfortunately, Roe v. Wade was the catalyst for the Christian Right to get involved in politics. They got organized and argued that a fetus has a right to be born, even if it’s a day old. They have the right to hold that opinion (see the 9th amendment). The issue is whether that opinion should be made into law. If they really think all fetuses are people and all abortions are murder, all abortions should be illegal. Whether the woman was raped shouldn’t be an exception. Whether she was made pregnant by her brother or father shouldn’t be. Not even the mother’s life should be an exception, since, given the choice between saving the life of a mother and her baby, most of us would want the baby to survive.

If you take the 9th amendment seriously, however, we all have rights not mentioned in the Constitution. Among those rights are the right to privacy as we go about our lives, the right to control our bodies and what’s inside them, and the right to make our own decisions. Rights do conflict, but there’s no doubt that we should be free from government interference most of the time. Getting pregnant is a normal part of women’s lives. Deciding not to be pregnant is also normal. Seeking and receiving the kind of care modern medicine can provide is normal as well. The government should try not to interfere in such cases. The five most reactionary members of the Supreme Court — all of whom claim to love freedom — should understand that and leave Roe v. Wade alone.