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.
Sunday, October 28, 2012
8:02 pm
Daniel J. Summers
Dr. Albert Mohler, president of the Southern Baptist Theological Seminary, produces a daily podcast called “The Briefing,” which he describes as an analysis of current event from a Christian world view. It's my morning newscast; at 15 minutes, it'll pretty much get me to work. This past Friday, he hit an absolute game-winning, out-of-the-park, grand-slam home run. (Hey, I've got to get my baseball metaphors out of the way, since the season's over as of about an hour ago.)
The transcript below is mine (names spelled phonetically if I didn't know them already), of the final 10 minutes. He analyzes Richard Mourdock's controversial comments, then turns his attention to the issue that both he and Todd Akin have both bumblingly defended. (If you're in a hurry, skip to the last 4 paragraphs.)
It was a statewide debate that would've been unlikely to gain national attention. But all that changed on Tuesday night when, in a debate between United States Senate candidate Richard Mourdock, the Republican, and US Representative Joe Donelly, the Democrat, the issue of abortion arose, and it ended up arising explosively. In this case, Richard Mourdock, asked about his position on abortion, said this: “The only exception I have to have an abortion is that in the case of the life of the mother. I struggled with it myself for a long time, and I came to realize that life is that gift from God. And I think that, even that life that begins in that horrible situation of rape, that it is something that God intended to happen.”
The fury and firestorm that erupted after Mourdock's comments has now reached a fever pitch. And, what you have across the political spectrum is somewhat feigned, and perhaps somewhat genuine outrage at the candidate's statements on abortion. All this, of course, is more intensive in terms of our national discussion, because of the aftermath of the controversy over another Senate candidate's comments - that was Todd Akin, running for the United States Senate seat in Missouri - and in a similar way, Mr. Akin found himself as the topic of focus and controversy over the statements that he intended to be reflective of a consistent pro-life position.
In both cases, the issue was rape, and the connection to abortion. In Mr. Mourdock's case, the comments are actually far less complicated than the comments that were made by Todd Akin. His statement - let me repeat again - was about his position on the sanctity of human life, and thus, exemptions for abortion. Mr. Mourdock is known as a pro-life candidate who has said he will try to achieve increased limitations on abortion if elected to the Senate. Let me read to you his words again. He said, “The only exception I have to have an abortion is that in the case of the life of the mother. I struggled with it myself for a long time, and I came to realize that life is that gift from God. And I think that, even that life that begins in that horrible situation of rape, that it is something that God intended to happen.”
Many in the media, and even some in very high office, have attempted to characterize Mr. Mourdock's statement as suggesting that rape is a part of God's will. For instance, you have the President of the United States responding with outrage, suggesting that what Mr. Mourdock said is nothing less than politically atrocious. The Obama campaign, according to Jonathan Weissman of the New York Times, sought to exploit the opening from Mr. Mourdock's comments, as did virtually every Democratic campaign for the US Senate; pressing, they say, a unified message that the Republican party's out of step with female voters. President Obama “felt those comments were outrageous and demeaning to women,” so said Jane Saki, the president's campaign spokeswoman. Ms. Saki also said it was perplexing that Mr. Romney, the Republican candidate, had not demanded that his ad for Mr. Mourdock be taken off of television.
Let's look at the comment, and let's consider the controversy. There is something here that is very important for those of us who are pro-life to note, and to note with requisite care. What we're talking about here is a man who, very sincerely and very self-evidently, sought to define the sanctity of human life to cover every single human being from the moment of conception until natural death. He has found himself in very hot political water, in a very close Senate race that was probably already too close to call, and may now put himself in a significant electoral disadvantage. What went on here, and what should we learn from it?
The first issue to consider here is the matter of communication. I think any fair-minded person would understand that Mr. Mourdock is right when he complains that his comments have been taken out of context, so that it appeared that he was referring to rape as God's will rather than the gift of life. Hats off to at least some in the media who have noted this; Amy Sullivan writing in the New Republic wrote this: “Despite the assertion of many liberal writers I read and otherwise admire, I don't think that politicians like Mourdock oppose rape exceptions because they hate women, or want to control women. I think they're totally oblivious,” she writes, “and insensitive, and can't for a moment place themselves in the shoes of a woman who becomes pregnant from a rape. I don't think most care that their policy decisions can impact what control a woman does or doesn't have over her own body.” She then writes this: “But if Mourdock believes that God creates all life, and that to end a life created by God is murder, then all abortion is murder, regardless of the circumstances under which the pregnancy came about.” She is exactly right; that was Richard Mourdock's point.
But, he's paying the price for miscommunicating here, and for bringing up the issue of rape in a context in which he didn't have to answer the question that way. He brought up the issue of rape without a way of adequately explaining what he was going to say thereafter, and he spoke in a way that was simply too brief to carry the weight or the moral meaning of the argument he was trying to express. He needed to say that he believes that God has given the gift of life to every single human being, and that the circumstances that brought that gift of life about are not what establishes the dignity or sanctity of any human individual's life. Rather, he was trying to say that there is an objective value - sanctity, dignity - to every human life, and that includes one born out of wedlock, that includes one born out of expectation or hope, and that includes one born, also, out of something so absolutely horrible, sinful, and almost unspeakable as forcible rape.
There are others who similarly got it right, in the midst of those who clearly got it wrong. Kevin Drum, writing at Mother Jones, which is one of the most leftist periodicals in America, also decided to do a bit of truth-telling here. He writes this: “Mourdock is getting beat up pretty bad for this, so I think that's just fine.” He means that politically. “At the same time, can't we all acknowledge that this is just conventional Christian theology?” Very interesting. He goes on to write: “What I find occasionally odd is that so many conventional bits of theology like this are so controversial if someone actually mentions them in public.”
Going back to Amy Sullivan, again at the New Republic, she writes this: “Take a look again at Mourdock's words. 'I came to realize that life is a gift from God. And even when life begins in that horrible situation of rape, that it is something that God intended to happen.'” She then writes, “The key word here is ‘it’; I think it's pretty clear that Mourdock is referring to a life that is conceived by rape, he's not arguing that rape is the ‘something’ that God intended to happen.” She then writes this, very important: “This is a very common theological belief, the understanding of God as an active interventionist. It's also,” she writes, “not limited to conservative Christians. There are liberal Christians,” she writes, “who also argue that things work out the way they're supposed to. Some of them are in my own family, and I think they are wrong.” So, in other words, Amy Sullivan clearly believes that Richard Mourdock is wrong; but she's very clear also that her liberal media peers, far to many of them, and those who are politically opportunistic on the other side, are using this statement out of context, and knowingly so.
But there are severe lessons to us. The lesson first is communication. We must not let ourselves fall into the position of appearing to say anything that comes close to what Richard Mourdock is accused, albeit falsely, of having said. But the most important issue here is not politics - it's not political; and, it's not about communication either. It's about the dignity and sanctity of every human life, and the attack upon human life by the culture of death in the form of abortion. Here is something that conservative Christians - those running for office, and those voting for someone running for office; those who are activity in the political sphere, and those who are just trying to understand it - in terms of how abortion should be considered in the frame of public policy.
Right now, the public is very clear that the vast majority would accept legislation or some political action to constrict and restrict the number of abortions in America. Americans, across the board, are increasingly outraged at the scale of abortion, with 1.2 to 1.4 million babies being aborted every year. Only a tiny percentage of them are covered by the most frequently-asserted exceptions, whether it's rape or incest or to save the life of the mother. The last of the three, an intervention to save the life of the mother, is often misconstrued by virtually everyone, because the main issue there should be cases in which action to save the life of the mother tragically, but unavoidably, causes the death of the unborn child. But in looking at the three exceptions - just taking them at face value, understanding that we cannot be morally satisfied that the circumstances of those conceptions should lead to the allowance of the abortion of those babies - we should, as a matter of public policy, right now, work for legislation that would restrict the number of abortions, and would eliminate the vast majority of abortions. Approximately out of the 1.2 to 1.4 million, we're talking about all but a handful of about 20 to 50,000 abortions, at the most extreme estimate, in terms of a year.
Now let me be clear: we could not accept those exceptions as a permanent condition. We could understand that on the way to this society embracing the full dignity and humanity of every single human life, this is a way of at least saving the vast majority of unborn babies. That's why, when a politician right now is running for office, we should not expect them to say that they would not accept any exceptions in terms of public policy. But I do expect them to say that they cannot accept them morally as a permanent condition. In other words, if I were asked this question, I would say that right now, I'd be willing to sign on the dotted line to legislation that would eliminate over 95% of all abortions in America. I would not then remain satisfied. Even as the pro-abortion movement would be trying to convince Americans to liberalize abortion, I will from that point onward be doing my dead-level best to try to convince Americans to move to an even more consistent pro-life position.
There's a statement that applies in politics perhaps more appropriately than anywhere else. “The perfect is the enemy of the good.” We cannot sell out our principles - most importantly, the principle of the dignity and the sanctity of every single human life - but, we cannot sacrifice millions of unborn children to our principle on our way to trying to get this nation's conscience in alignment with human dignity.
If you aren't listening to “The Briefing,” you're missing out. Check it out on iTunes, or at Dr. Mohler's site.
Saturday, August 25, 2012
6:04 pm
Daniel J. Summers
Last weekend, Claire McCaskill's (D) opponent in the Missouri Senate race, current Representative Todd Akin (R) went on a television show, and the discussion turned to his views regarding abortion. He is on record as not supporting a rape exception as part of an abortion ban. He explained himself thusly:
Charles Jaco, Interviewer: Okay, so if an abortion can be considered in the case of, say, tubal pregnancy or something like that, what about in the case of rape? Should it be legal or not?
Rep. Todd Akin (R-Mo.): Well, you know, uh, people always want to try to make that as one of those things, “Well, how do you - how do you slice this particularly tough sort of ethical question.” It seems to me, first of all, from what I understand from doctors, that's really rare. If it's a legitimate rape, the female body has ways to try to shut that whole thing down. But let's assume that maybe that didn't work or something. You know, I think there should be some punishment but the punishment ought to be on the rapist and not attacking the child.
To say that the middle sentence in his reply got a lot of attention would be the understatement of the week. As someone who shares his overall views, that sentence made me cringe. There are two ways to address the “what about a rape exemption” question, and neither one are that.
First off, he's wrong on the biology. What he wanted to say was that significant emotional distress can prevent a fertilized egg from implanting, or can cause hormonal changes that can trigger a miscarriage; since rape is such an emotionally devastating event, the body may very well take care of it itself. This is something that I've heard anecdotally (from real people, not a website), but I'm not aware of any sort of study that can confirm that. Even if there is an increased likelihood that an egg fertilized during rape will not turn into a pregnancy, though, it in no way “shut(s) the whole thing down.” A risk factor is not the same as a bodily function.
Secondly, he's wrong on “legitimate” rape. One he knows what he meant by that; he's later clarified to say that he meant “forcible” (as opposed to statutory), but still - what a horrible choice of words! What is the world is a legitimate rape? I'd wager that all of them are illegitimate acts of violence against the other party. Some might excuse it as a slip-up, but this man has been a legislator for longer than Obama's been in politics - he should darn well know how to articulate his views without giving the left a Scooby snack! Rush Limbaugh, in his denunciation of these remarks and call for Akin to get out of the race, speculated that he surrounds himself by only those who agree with him, so he hasn't had to articulate it very much.
This gets to the crux of why he should remove himself from the race. Mr. Akin, you have misrepresented the position, discredited yourself and your party, and you're down over 10 points in Missouri polling. All Republican party groups, including the Romney/Ryan team, have distanced themselves from you and your remarks. I personally have learned to silently roll my eyes when the sneering liberals group me with what they call anti-science religious zealots, but I absolutely hate it when they're right. You have single-handedly dealt the pro-life cause a serious blow, and by continuing to stay in this race, you are doing little more than twisting the dagger. People of principle are loyal to the principle, not the person. You may be right on principle, but by continuing to force yourself as the leader of that cause, you are making it about you instead of the cause of life. No one wants you to go down with the ship; if you step aside and let another lead, the ship may not go down at all.
Tangent #1
He did hit the first way to address the “what about rape” question toward the end of the excerpt above; it's not the baby's fault. The other is an equally simple response; either all life is sacred, or it is not. If abortion is unacceptable because life is sacred, life created through violence is no less sacred, and should be afforded the same protections. He sort of hit that earlier in his interview when discussing tubal pregnancies, even using the term “optimize life.” That's a good way to put it, IMO.
Tangent #2
Mike Huckabee, you need to get out of this too. You lost to Mitt in 2008, and revisiting your grudge in 2012 is going to do nothing but give us 4 more years of Obama, with no chance of repealing that health care monstrosity. If that happens, public tax money will be used to fund abortions and abortofacients, and religious organizations will be forced to provide them against their convictions. I know you don't like the idea of voting for a Mormon, but the only rallying that needs to be done is the one that will drum Akin off the ballot.