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 literaldecimation 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.
Saturday, March 3, 2012
10:50 pm
Daniel J. Summers
Contraception has been in the news quite a bit recently, culminating this week in testimony before Congress and calls for Rush Limbaugh's microphone over his response. Let's look at the timeline and how we got here, then I'll share my thoughts on the whole thing. (If you're in a hurry, skip to the last 2 paragraphs; but, if you have the time, read the whole thing, as it goes deeper than I have seen most analysis go.)
This issue came to the forefront of popular discussion when the Roman Catholic church expressed their opposition to the provision of the health care reform bill (AKA “ObamaCare”) that required employers to provide health insurance that covers contraceptive care. Official church doctrine regards this as sin, and requiring their hospitals and other organizations to provide this, they claim, is a violation of their religious beliefs. The fact that Rick Santorum, a leading candidate for the Republican presidential nomination, is a practicing Roman Catholic (and has lived these beliefs for years), has brought this issue even into the primary process.
Some legislators, seeing this as a legitimate complaint from the church, presented legislation that would amend this requirement, allowing an exemption for employers who have religious objections to these requirements. To help combat this, a Georgetown University student named Sandra Fluke testified to Congress about how important she held contraception, and how she felt that free contraceptive coverage was an integral part of health insurance coverage. Rush Limbaugh, long known for “illustrating absurdity by being absurd” (his term), seized this testimony and ran with over-the-top commentary, using terms to describe Ms. Fluke that have people calling for his job.
Those are the facts as they now stand. Let's dig in, shall we?
The first thing we need to discuss is the term “contraception;” the literal definition is “against the fertilization of the egg” (contra = against, con-ception = fertilization of the egg). A popular synonym for contraception is “pregnancy prevention,” but that is a much broader term. Some feminists define contraception as “that which prevents birth,” an even broader definition than pregnancy prevention. There cannot be an agreement on contraception until we can all agree on what that means. We'll leave abortion out of it, as the view of abortion being contraception is a minority one, and it's not part of this mandate.
What is part of this mandate, however, are drugs that are collectively termed abortofacients; these are techniques or medicines that do not prevent the fertilization of the egg, but they prevent the implantation of the fertilized egg onto the uterine wall. RU-486, the “morning-after pill,” and certain intrauterine devices (IUDs) fall into this category. These methods of “contraception” violate not only the Roman Catholic views against contraception, but the evangelical churches' beliefs that life begins at conception - it is equivalent to an abortion. This greatly expands the pool of those organizations which would be required to provide coverage which violates their moral beliefs.
Some would say that the argument of “it's against my religion” has been made spuriously in the past, and they would be right. However, the prior misuse of this argument cannot be used to strip away the principle, long recognized in this country, that we generally do not create laws that force mainstream religious organizations to violate their consciences. I personally do not hold to the belief that contraception is wrong; however, I do hold to the belief that life begins with conception. This is described in Scripture, and has been validated with medical advances over the past few decades. So, I believe that this law is a bad law because, among its other many problems, it forces religious organizations to either violate their conscience or face criminal prosecution. In a nation founded on the principle of religious liberty, this is not something we should do.
Now, let's turn our attention to Sandra Fluke and her testimony before Congress. Her testimony brought a valuable insight into the mindset of many of her generation. She said “Without insurance coverage, contraception can cost a woman over $3,000 during law school.” Let's ignore the math of that statement ($1,000/year?) for now and look at what she didn't say. Implicit in this statement is the fact that she feels entitled to not only practice sexual activity as much as she wants, but to be free from the consequences of that activity. That is one of the lies that now permeated a second generation. They have been told that their sexuality is best expressed by using it repeatedly, and however they choose to do it, that defines who they are. The sexually “repressed” have been ridiculed or even shunned, while the sexually “liberated” are celebrated. Thanks to contraceptive methods, they can express themselves free from the traditional consequences of sexual activity.
This is a lie. “Liberated” sexuality does not empower women; rather, it strips them of their power, instinctively inherent in the human race. It is no secret that the male of the human species is inordinately preoccupied with this aspect of his life from adolescence forward; traditionally, while the female may have wanted the same thing, she would hold back, which encouraged men to make a commitment they might not otherwise make. The old adage “Why would you buy a cow when you can get the milk for free?” illustrates this principle quite vividly. 40 years out from the sexual revolution, commitment has taken a nose-dive into near non-existence. Cohabitation, hooking up, friends with benefits, and no-fault divorce now provide avenues for sexual activity that were not available to men in the past. So, rather than commit to one person, and do the hard work of changing themselves to become better mates in order to earn this gift from their brides, men can just float from one partner to another. If a partner sees something in him that, were he to change, would make him a better man, he has very little motivation to endure that change. This has led to weaker men and weaker women, and in two generations has brought us to the place where over 50% of babies born to women under 30 are now born out of wedlock.
Yes, we're getting deep into this, but it is crucial that we do so, because this begins to get to the biggest problem with the Fluke generation (heh - I should copyright that). We can expect nothing different, because they simply haven't been taught, and they did not see it modeled in anything but generations so old they'd never dream of mimicking them. They see no reason for people to have a problem with this. This is also why there is such a visceral reaction when these beliefs are challenged. That doesn't absolve them of their responsibility to seek out and evaluate whether what they believe is right, but it helps to understand their thought process.
Notice also that I am not judging the character or intentions of the generation as I described it above. Even with parents teaching their children these things, and living them out in front of their children, people will make choices that are less than optimal. The above should be read as a commentary on society, not as a condemnation of its participants. Besides, assigning blame to people is counterproductive; we need to look at the decisions that were made, where they have led us, and determine what decisions we should make to get us to where we need to be. My goal is to encourage behavior that is beneficial to society.
(Wow, what a rabbit trail. OK, back to my point from 4 paragraphs ago…) Although I doubt she sees it this way, what she expressed in her testimony was a desire to choose to act however she wants, but be free from the negative consequences of her actions. This is what has provoked such a reaction from her detractors - why should I (through government-funded insurance programs) pay for your decisions, or for shielding you from the consequences of your decisions? Engaging in sexual activity is a choice; you don't just “catch” sex. (We're ignoring rape with this statement - but what kind of attitude do you have to have to always have contraception for fear of rape? That doesn't apply in this argument.)
This brings us to Rush Limbaugh, who used absurdity to greatly ridicule Ms. Fluke. He said some things that he knew were over the top; that's what he does, both to illustrate points and to garner ratings. Predictably, there have been calls for his job, and some advertisers have pulled their spots from his show. Since I started this post earlier this morning, he has apologized to her for the incendiary words that he used. (Interestingly, one of those words has been used triumphantly by feminists to describe themselves, as a celebration of their sexual freedom; if she truly is a feminist activist, one might think she would take that as a compliment. Sadly, the double-standard discussion will have to wait for another time, or this post will never wrap up.)
Just as we looked at the Fluke generation, think about the Limbaugh generation. Rush is part of the first generation that began, in large numbers, to shed the morals and values that had been with us for hundreds of years. He is now seeing the results of this, and is flabbergasted that things have gone so far so quickly. He also enjoys getting people riled up, particularly the “femi-nazis,” a group that is pretty easy to tick off. So, when we look at his statements, considering his history and background can help put his comments into their intended context. As has been proved by both the right and the left, an out-of-context sound bite can be made to say whatever one wants; however, the truth, whether exculpatory or damning, can only be determined by evaluating the statement as whole.
Are there any of you who feel that Limbaugh should have been censured, who also feel that, now that he's apologized, all his sponsors should return to his program on Monday? Now you're starting to see it. He may very well have to live with the negative consequences of his actions, even though he has apologized for them. Should his insurance company produce the lost revenue from these advertisers? Of course not - he would be crazy to suggest that they should. This is the exact same principle we evaluated above! Maybe seeing it turned on someone less sympathetic will help you understand the issue more clearly.
Personally, I believe that shielding people from the negative consequences of their isolated bad actions can be beneficial, particularly if they are allowed to experience part of those, and have to expend some effort in ameliorating the remainder. (I'm not talking about Limbaugh here; this is a general statement.) As the adage goes, “Good decisions come from experience; experience comes from bad decisions.” People are not perfect, and they are going to make choices which bring negative consequences. Notice, though, that I started this by saying “personally.” Forgiveness is a personal virtue, not a government policy. However, even with forgiveness, it is often neither possible nor desirable to shield the person from the consequences of their actions. What people like Sandra Fluke want is for the government to spare no expense in its attempt to shield her from whatever consequences she deems undesirable. A government policy of forgiveness, paired with the equal application of the law, amounts to a tacit approval of the activity. It is not fair to forgive or shield one person and not another; some would argue that limiting it to one instance would not be fair either. It just simply does not work.
Sexual activity is certainly not the only area where we see this mindset at work. One of the major sparks behind the Occupy movement was frustration from people who got a college education, but could not parlay that education into employment. They wanted their school loans forgiven - and, with the value they were seeing from that piece of paper, who could blame them? But, again, actions have consequences. They chose to get the education in certain degrees, and at a pace that incurred debt. Their demand that others pay to shield them from the negative consequences of those decisions was met with some sympathy, but mostly derision from people who saw them as a bunch of freeloaders, protesting their poor state from their iPhones and iPads.
Let's distill all of the above down to five main points. First, the contraception provision in ObamaCare is wrong, and inconsistent with our legal traditions; it becomes more so as the definition of the term contraception is widened. Second, the nuclear family is the most beneficial for society, and provides the greatest motivation for both man and woman to improve themselves as they grow closer to one another. Third, while people like Ms. Fluke may not see it, they are expecting others to pay to shield them from the negative consequences of their actions, and this is what many people, myself included, find distasteful. Fourth, consider the context from which both sides originate when analyzing arguments, particularly those which generate a strong reaction; it may not make their argument any more believable, but it will help reveal not just what they are saying, but what they want. Fifth, while forgiveness is a positive personal character trait, it is incompatible with government policy.
I hope my analysis has helped you evaluate this issue; it goes way deeper than sound bites can convey. At its core, this is about respecting religious convictions and accepting personal responsibility. I hope and pray that my nation chooses to do both.
Wednesday, January 12, 2011
1:00 pm
Daniel J. Summers
This is the middle post of my three-post “Year in Review: The Good, the Bad, and the Ridiculous.” The linked words in that title will take you to the other two posts. Here are the things that I considered bad in 2010.
Wikileaks
Wikileaks began as a whistleblower website, where people could release information about injustices. In 2010, they made a leap into classified government documents. Purportedly stolen by PFC Bradley Manning, these documents were not only embarrassing for some government agencies, the information contained in those documents identified informants and other non-public allies in the War or Terror. While the creator of Wikileaks, Julian Assange, is currently in custody (due to some somewhat-questionable sex crime charges), there is little legal enforceability on a citizen of another country disclosing secrets of another. Several US companies have severed ties with the site, and kudos to them for that; however, I believe that the net result of this will be bad.
ObamaCare
What I've identified as the most ridiculous quote of 2010 (“We have to pass the bill to find out what's in it”) was spoken in reference to this bill. Going by the formal name of the Patient Protection and Affordable Care Act of 2010 (colloquially known as “Obamacare”), this bill enacted many reforms to our health care system, most notably in the area of insurance coverage. The bill mandates that all people purchase and retain health care insurance (a provision already rule unconstitutional), stipulates that insurers must cover preexisting conditions and may not drop insured people for certain conditions, and provides for the creation of a public co-op. There may be more, but at 1,300+ pages, who knows?
We are already seeing the unintended consequences of this legislation. Insurance rates are going up, with many companies raising rates 25% or more. This shouldn't catch anyone by surprise; what is called “insurance” in the bill is more like a membership. Insurance is a bet against bad things happening, which is the entire reason preexisting conditions aren't covered. Where's the bet when you know the outcome? Insurance rates are not designed for this type of use. (Conspiracy theorists could speculate that those who passed the law knew this. They really wanted public control, but the people didn't want it - instead, they passed a bill that will bankrupt the insurance companies. Then, who rides in to save the day? Liberal government!)
Insurance is but one of the problems with this bill; there are many others where the unintended consequences outweigh the intended benefits. Hopefully, the 112th Congress can undo this monstrosity before most of its provisions become effective. Until then, though, this remains on the bad list.
The FCC Implements Net Neutrality
“Net neutrality” is the concept that network service providers (ISPs, cell carriers, etc.) must treat all network traffic equally. This means that they cannot favor certain types of packets (ex. their own video streaming) while slowing down other packets (ex. competitors' video streaming, voice over IP). While, on the surface, this sound good, it fails to take into account bandwidth considerations, and the consequences of that bandwidth being used up. A TV signal can be broadcast through the air, and whether one TV or a million TVs receive the signal, the signal is the same; however, the same signal received over the Internet must be duplicated once for each end point receiving it - it is a request-response network. It's not as cut-and-dried of an issue as some of its more ardent supporters would like to paint it.
Congress has failed to implement net neutrality legislation, and courts have ruled that the Federal Communications Commission (FCC) has no jurisdiction to implement it on its own. That didn't stop the intrepid FCC, which issued net neutrality guidelines near the end of the year. Hopefully 2011 will find these regulations to be unenforceable; as it stands now, though, these regulations are bad, and have the potential to slow innovation around the network.