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.