Two Ways to Cross a Stream

Friday, June 24, 2022 1:02 pm Daniel J. Summers

Today, the Supreme Court struck down nearly 50 years of precedent, finding (correctly) that there is no right to abortion in the Constitution. Finding it there was incorrect in 1973 and proved to be even more incorrect as medical science advanced. To say I am ecstatic would be underselling it; I have advocated against it for decades, and even wrote publicly about it as far back as 19 years ago. This is a wonderful day!

To be sure, this court case does nothing for the generation lost to this barbaric practice, nor does it eliminate it on a nationwide basis; the rescinding of the Roe v. Wade decision returns the issue to the states. I am a big believer in an incremental approach because, in large part, any absolutist effort is doomed to failure. Every prenatal murder we can avoid is a cause for celebration. The states that have laws that go into effect will have the effect of outlawing 12.8% of abortions (subscription-only link) - just over a literal decimation of this abhorrent practice.

I won't rehash my posts from the past nearly-two decades; if you want to read those, just peruse the “Prenatal Murder” category linked at the bottom of this post. Rather, I want to reflect on various aspects of this decision, what led up to it, and what is next for those of us who value the sanctity of human life from conception through natural death.

Roe Was Bad Law

The Roe decision only made sense by stretching the logic of a 1965 decision that had also stretched to reach its conclusion - Griswold v. Connecticut. Griswold centered around a law that prohibited the dispensing of birth control advice or devices. The majority opinion in this case found a previously-undiscovered “right to privacy” in the Constitution (as amended) that “emanated” from prior case law's “penumbras” (shadows). Calling this innovative thinking is probably too kind; it set precedents in all sorts of bad ways.

Just eight years later, Roe took a hop from Griswold's stretch, equating the act of abortion with any other form of birth control. This was also innovative, but not in the way you may expect. You likely grew up hearing about “trimesters,” those three 3-month periods of fetal development prior to birth. That did not come from current medical thinking; it came from renowned biologist Justice Harry Blackmun, via his majority opinion in this case. (Maybe justices do need to have a good working knowledge of biology, eh Justice-in-Waiting Jackson?) Justice Blackmun used this “trimester” framework to literally "split the baby", finding that the state had no interest in the first, some interest in the second, and the near-prevailing interest in the third. It also provided prohibitions on laws that did not allow abortions to preserve the “life and health” of the mother.

At the time, its companion case (Doe v. Bolton) defined “health” to include “mental health,” which was the key for the abortion free-for-all that followed. Parenting has profound effects on your mental health, whether you set out to be parents or are surprised, and doctors were all too willing to use this as cover to grant abortion for any reason (or no reason at all).

In 1973, the decision was not great; however, in the intervening years, medical science and our understanding of fetal development increased greatly. In 1992's Planned Parenthood v. Casey decision, the Supreme Court replaced the trimester framework with a “viability” standard. Sadly, they left the “mental health” definition from Doe intact, so the effect was the same. Medical science continued advancing, and as those who were pro-abortion rights continued to ignore it, their “rights” platitudes rang more hollow. In 2009, they thought they had finally won, but in reality…

The ACA's Overreach Accelerated This Decision

The Affordable Care Act (ACA, also known as “Obamacare”) mandated, among other things, what type of health care coverage employers must provide their employees (whether they want/need it or not). Reproductive health care was part of that package, and within that were some “birth control” measures that prevent implantation of a fertilized egg or induce spontaneous abortions (“abortofacients”). There were also very limited exceptions to this policy; in short, if you were not a church, you had to provide this.

This took the debate from the public square and into the courts. In 2014, the Supreme Court's decision in Burwell v. Hobby Lobby found that this lack of exception for religious beliefs for for-profit businesses violated 1993's Religious Freedom Restoration Act (RFRA). That was a good ruling, but it only applied to abortofacients and for-profit businesses. Catholic Charities' Little Sisters of the Poor were not as fortunate. The Roman Catholic religion views any birth control as sin, and even if the Hobby Lobby exception applied, they were still mandated to provide something against which they have long-standing, well-documented, sincerely held beliefs. It took until 2020 – 11 years after the ACA became law – to win their exemption via Little Sisters of the Poor v. Pennsylvania.

While businesses were fighting in court, state legislatures were passing laws. Some states passed laws ensuring that this travesty could occur right up until the moment of delivery, but many states passed further restrictions on abortion. These restrictions varied from those thought to comply with Casey, to near or complete bans that were deferred until Roe and Casey were struck down, to some innovative thinking the other way (which isn't a compliment; Texas gets their own section under “What's Next” below). These laws codified, within each state, where they wished to draw the line on their compelling state interest. Among the ones that took effect, some held, some were struck down (like 2020's moderately surprising decision in June Medical v. Russo), and the Mississippi law challenged in Dobbs v. Jackson is what led to today's majority opinion.

A draft of that opinion was leaked in early May. Not only did this allow me to write large portions of this post ahead of time (hooray), it also led to some really revealing arguments from the side who felt that they were about to lose. Despite their claims to the contrary…

Abortion Is Not Health Care

The most egregious and disingenuous of these claims is that the reversal of Roe will lead to doctors being prohibited from taking care of troublesome pregnancies, such as ectopic pregnancies (where the egg implants in the fallopian tube) and miscarriages where the fetus has already died (but the woman's body is not eliminating it properly). It is true that, particularly with the miscarriage, the medical procedure itself is similar. However, no one is saying ectopic pregnancies should remain (except some knuckleheads in Missouri - again, addressed below), and removing an already-perished pre-born baby is also not abortion. These are health care procedures, and will remain legal in all 50 states, even if it takes a court challenge. (Again - maybe we do want our judges up on their biology, no? Maybe the legislature, too?)

Strawmen out of the way, this leaves us with four general scenarios to consider.

• The first scenario goes something like “I just missed my period; uh oh - ain't nobody got time for that!” While I would love for this to be outlawed, the reality is that these will likely be legal - or at least accessible - forever. The Mississippi law challenged in Dobbs mandated no abortions after 15 weeks, which would have no effect on this abortion scenario. All that said, though, this is no more health care than elective breast augmentation.
• The second scenario is selective termination after genetic testing. In these cases, there is absolutely no difference in the health of the mother who is carrying a baby with genetic deformities. All her systems still work the same; failing to give these children the opportunity for the life they have been given is something which should be prohibited by law. Again - not health care, just early murder.
• The third scenario is a woman who changes her mind well into her pregnancy, and her baby is fully viable outside the womb. In this case, there is no prevailing health care concern that requires the baby to die; a delivery eliminates the pregnancy and gives the baby the opportunity it deserves. “Not health care” is an easy call here; all three cases thus far show that something being a “medical procedure” does not mean that the procedure is “health care.”
• The final scenario is pregnancies resulting from rape (which includes incestuous statutory rape; I am not considering consenting related adults' children here). Here, I will probably part ways with some of the more ardent pro-lifers; while I do not believe abortion is the right decision in these cases, girls and women in this situation are already in a non-ideal situation. I believe it should be legal to counsel them to keep these pregnancies, but you will not find me pushing an absolutist position here. That being said, this is the only case where mental health should play any sort of consideration at all; outside of that, this is not health care either.

I mentioned the revealing arguments in the wake of the leak. The health care argument was one, but again, contrary to their claims, this is…

No Slippery Slope

(At this point, I would love to divert and discuss the difference between a “slippery slope” argument and an “argument of progression.” However, this is already essay-length; maybe that will be a post for another day.)

The claim goes something like “If they take this right away, what's to stop them from taking away birth control totally? Or gay marriage?” Well - in two words, “the Constitution.” Eliminating a stretch from the emanating penumbras doesn't eliminate the penumbras themselves, so birth control's legality remains covered under Griswold – just not the murder-your-baby kind. A better parallel for gay marriage would be 1967's Loving v. Virginia case, decided on equal protection grounds rather than right-to-privacy; these same equal protection claims were central to 2015's Obergfell v. Hodges case. There is also no nationwide movement against either of these decisions. There may be local overreach on these laws, and there may be lawsuits where the plaintiff's rights under RFRA were found to be violated – but these (contrary, again, to the hyperbolic claims of the losers) do not remove the laws from the books; they recognize religious freedom in our pluralistic society.

So, all that being said…

What's Next? (AKA “Fix Your Law, Texas”)

The fight for the legal rights of the unborn now has 50 fronts. This is not necessarily a new development; as I mentioned above, there has been legislative action in several states. There will likely be vociferous screeds about abolishing filibusters, expanding courts, and other harebrained schemes, all in hopes of getting a quick nationwide reversal of Dobbs. The conversation around the 2024 election will be hysterical and insufferable – not that the outlook there was all that reasoned and sufferable to begin with…

Some ways I would like to see the issue progress (and things I would support) include:

Continued Vigilance

There will be, no doubt, efforts to reverse today's decision, both in the courts and in Congress. While many of us see today's decision as the natural consequence of the way culture, science, and jurisprudence have been moving for the past generation, we should assume absolutely zero momentum. There will be a reaction, and it will be covered favorably by the legacy media; stand on principle, and do not concede the phrasing or the terms of debate. Culture has changed because pro-life advocates have publicized both the amazing miracle of life in the womb and the horrors of abortion; keep doing that.

No Overreach

We no longer need “bold” laws to “challenge” the unconstitutional Roe; it's done, and the states have the power. “With great power comes great responsibility,” though, so any future laws restricting abortion must be free of some of the sloppiness contained in prior abortion laws (and some current “anti-woke” laws). (No, you may not criminalize treatment of ectopic pregnancies.) These laws must be specific, measurable, enforceable, and medically sound. I like heartbeat bills, I'm OK with 15-week bans; I'm not OK with jailing abortive mothers.

Texas, I promised you some special attention. If your law had been passed contingent upon today's ruling, or passed in the future, it would not have the same baggage that it currently does. I'm quite surprised that the Supreme Court did not issue an injunction; my only guess is that they had an inkling that today was coming and wanted to give you a head start. Working around the Constitution is not the way to accomplish this. Revisit this law; if you want to be the only state in the Union to have a civil penalty for abortion, so be it, but surely you can do better by the children of Texas than outsourcing their protection to (possibly out-of-state) profiteers.

Don't Be “Pro-Life in Name Only”

You know what's tough? Being a mom through pregnancy, birth, and early childhood. (It doesn't get a lot easier, but at least you start getting sleep – until the teenage years, anyway.) Not engaging in an activity that will create life until one is ready to take responsibility for the life created is quite pro-life; this is the “hearts and minds” aspect, which wasn't ever part of Roe. Until that happens, though, we need to be prepared to support those who have created life and don't know what to do. Crisis pregnancy centers will be even more vital in the years to come, and they will need both counselors/volunteers and funding to help their clients.

While Roe v. Wade will exist as reversed Supreme Court precedent, I look forward to the day when “row” and “wade” are just two ways to cross a stream.

The 10^th Annual Dr. Martin Luther King, Jr. Post

Thursday, February 21, 2013 3:18 am Daniel J. Summers

Another American election year has come and gone. Four years ago, many thought our nation made a great stride in electing our first black president, and that we had eliminated racism. We didn't get very far into the following year before we realized that no, there was no substantive change; anyone who was opposed to the president's policies must be motivated by racism. Would 2012 bring any changes? I believe it did, and not the way we could have predicted at its start.

We are at a point in this country where the accusation of racism is a joke. (Read that closely - the accusation is the joke.) “I don't like my coffee black.” “RACIST!” (As it happens, I do, SO THERE!) There's even an entire meme based around it. More and more Americans are seeing these over-hyped charges of racism, looking at the actual thing accused, and realizing that the racism just isn't there. Noticing differences among ethnicities and cultures is not racist; in fact, if we don't notice these differences, how in the world are we going to incorporate them into the American melting pot/salad bowl?

Alfonzo Rachel, host of ZoNation, made an interesting point in his video released after the Republican National Convention in September. The whole thing's good, but the crazy part starts at 3:01.

If you can't watch the video, it's a clip of MSNBC's convention coverage, starting with a soliloquy from Touré.

But more to what I want to talk about - two main points. You know, he loves this line of “our rights come from God and nature” which is so offensive to so much of America, because for black people, Hispanic people, and women, our rights do not come from God or nature. They were not recognized by the natural order of America, they come from the government and from legislation that happened in relatively recent history in America. So that line just bothers me to my core.

You want to talk about offensive lines, sir? You just dropped one. That has got to be some of the most ridiculous talk I have ever heard. It's almost like you believe that the Constitution created God! God-given rights are rights whether a government recognizes them or not, and this is not limited to America; our founders merely recognized these rights that are inherent to all humans.

Let's square that with Dr. King's famous speech:

I say to you today, my friends, so even though we face the difficulties of today and tomorrow, I still have a dream. It is a dream deeply rooted in the American dream.

I have a dream that one day this nation will rise up and live out the true meaning of its creed: “We hold these truths to be self-evident: that all men are created equal.”

I have a dream that one day on the red hills of Georgia the sons of former slaves and the sons of former slave owners will be able to sit down together at the table of brotherhood.

I have a dream that one day even the state of Mississippi, a state sweltering with the heat of injustice, sweltering with the heat of oppression, will be transformed into an oasis of freedom and justice.

I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.

I've been to Georgia and Mississippi pretty recently, and I'm pretty sure I saw people of all races living, working, and playing together harmoniously. I don't see anything in that speech about government being the grantor of rights; in fact, it almost looks like he's referencing the white-guy-written Declaration of Independence as if it's a good thing. Huh. If Touré wants to stand on the shoulders of a legacy, it certainly isn't Dr. King's.

The race card has been overplayed, to the point where it has lost its value. That, I believe, is a good thing; the only people keeping racism alive in this country today are those who claim to see it lurking in the shadows of every conservative's innocent words. However, these continued accusations run the risk of causing a backlash, and becoming a self-fulfilling prophecy. There's a guy I know who says “If I'm going to be accused of something, I want to be guilty;” if the innocent are going to be accused of racism, they may find little motivation to even try to be sensitive of those of other ethnicities or cultures. This could lead to the further coarsening of our societal debates, which would be a bad thing.

May modern-day racists continue to be exposed for the fools that they are, as the rest of us see Dr. King's dream lived out in our nation.

The 3^rd Annual Martin Luther King Jr. / Sanctity of Human Life Column

Monday, January 16, 2006 9:38 pm Daniel J. Summers

Again this year, I'm combining my thoughts on these two days into one column. (If you'd like, you can review 2005's combined entry and 2004's entries for MLK's birthday and the sanctity of human life.) Much has happened over the past year in the realm of life issues and race relations, and I'd like to take a look back to see what we can learn from these recent happenings.

Recently, discussion on abortion has come to the forefront, thanks to the hearings for Supreme Court nominee Samuel Alito. The people on the left like to pitch this as a case of women's rights, but the issue before the Supreme Court is even more basic than that. That question is, “Is there a right to ‘privacy’ in the Constitution?” In the 1965 case Griswold v. Connecticut, the Supreme Court “found” this previously unrecognized right deep within a “penumbra” in our nearly 200-year-old Constitution. In this specific case, we learn that the Constitution prohibits states from having laws prohibiting the sale of contraceptives. (I'm curious as to whether any people have appealed laws against other types of drugs, citing this precedent.) Based on the faulty logic of Griswold, the 1973 case Roe v. Wade struck down all restrictions on abortion, viewing it as just another contraceptive method.

In last year's entry, I dealt with the medical advances over the intervening 30 years since Roe was decided. I will, though, give you a link to one of the best abortion information resources I've seen - Abortion Facts. This site has links and information on almost every aspect of reproductive health, from a worldview that values life and realizes the negative effect that abortion has had not only on the babies that die each day, but on our society's view of life, women, and appropriate sexual behavior. Also, a startling statistic from the New York Daily News - for every 100 births in NYC last year, 74 abortions were performed. That's 42.5%!

Back in March 2005, we had another fight regarding life, this time on the other side with Terri Schiavo, a lady who had been diagnosed as being in a persistent vegetative state for several years, but who had not recorded her wishes before she died. Her husband Michael claims that she had said that she would not have wanted heroic measures used to prolong her life, and that her current nature of medical care constituted “heroic” measures. He petitioned the court to order her nursing home to remove the feeding tube that was giving her food and water. On the other side, Terri's parents did not feel that their daughter would want to starve to death; rather, they wanted Michael to divorce Terri, at which point they would become the ones responsible for continuing her care. (Of course, had he divorced her, he wouldn't get any insurance money… Hmmm…) Astoundingly, Michael won, and Terri was starved to death, passing away on March 31^st. He claims that it was what she would have wanted - but, sadly, she's not here to present her side. (Here's a link to the entry I wrote at the time about Terri and her case.)

This is the case where the “pro-choice” movement morphed into the “pro-death” movement. Their true beliefs about their opinion of human life was on display for all to see. Terri Schiavo had made her choice. Choosing not to have a living will means that her care would fall back to normal medical processes - every attempt to save her life would be made. The “pro-choice” crowd, though, ignoring her choice, sided with her adulterous husband in his quest for her death. I guess they're pro-choice, as long as the choice is death.

On January 28^th, 2005, Condoleezza Rice was sworn in as only the second black (and first black female) Secretary of State. It is interesting that, for all the lip service the Democrats give to people of color, it was a Republican President who has appointed both black Secretaries of State our nation has had. Throughout this past year, she has been quite busy, working hard to act as this country's face to the rest of the world. She is presiding over the difficult diplomatic processes with North Korea and Iran, two rogue countries that are dangerously close to developing nuclear weapons.

Once September rolled around, though, we saw something much less inspiring. Hurricane Katrina devastated the Gulf Coast, destroying Gulfport and Biloxi, Mississippi and, though it only hit New Orleans, Louisiana with a glancing blow, the water broke some of the levees around the city, and it flooded. We heard reports of stacks of bodies, rapes, and rampant looting. (Thankfully, all but the looting seems to have been vastly overreported.) Then, we have the ridiculous outburst from Kanye West during a Katrina fundraising special, claiming that our President doesn't care about black people. Preposterous! And, during a time of national disaster, an irresponsible and disrespectful thing to do. Seems it was all a publicity stunt - his album came out a few weeks later, and his name was fresh on people's minds. So, he basically exploited the same people he claimed President Bush didn't care about. Definitely not a high point…

To wrap up our mini year-in-review, let's come back to the recently completed Alito hearings. Aspersions were cast on Judge Alito's character because he had been a member of the Concerned Alumni of Princeton (CAP), and that group had written that it opposed allowing minorities and women into Princeton. The only problem is that those lines came from a parody that was published in the Princeton student newspaper. (Look for the quotes from Dinesh D'Souza in that article.) Turns out, CAP was also concerned about the Reserve Officer Training Corps (ROTC) program being banished from Princeton, and that is why Justice-to-Be Alito had joined the group. The group did oppose quotas of minority/female admissions, and they also opposed lowered admissions standards for minority/female admissions - but, they were not opposed to minorities or women based on their race or gender. (And, this insinuation from the left is getting more than a little insulting!) Also, during the hearings, one of the committee members said that they couldn't think of a single decision that Judge Alito had made that was beneficial to minorities. However, this article, written in November of 2005, shows his belief that all people are equal under the law, no matter what their skin color.

Our nation misses Dr. King's guidance. He believed that, just as God sees us all as people, men should look at men with color-blind eyes as well. I hope that, over the next few years, less focus will be placed on divisive things. And, I hope that minorities realize that while one group emphasizes our differences, there is another group that has accepted those of whatever color, and encourage them to do the things that will improve their lives.