Tuesday, May 3rd, 2022
Roe v. Wade (1973) and Planned Parenthood v. Casey (1991) were seemingly going to stand the test of time as the final laws of the land on abortion rights, but Justice Alito has penned an opinion showing otherwise.
I honestly wasn't planning on writing on this topic, or even cover it on the podcast, for a long while. Its one of those issues that just brings in so much bad faith arguments and disheartens my faith in our public due to their lack of Supreme Court understanding. Civics classes have failed students for generations.
The highest court in the land's job is to simply interpret law. Be that of any jurisprudence including living constitutionalism or originalism (which I subscribe to). Slavery was once permitted in the constitution. Restricting women's right to vote was as well. These egregious things of our past were corrected by amendments that were passed by the elected body of congress. We as a society recognized our failures and voted to enshrine those basic rights in our constitution.
Many argue SCOTUS essentially makes law, but those arguments and the anger that follows fail to understand who's responsibility it is to make and amend law. That is solely the legislative branch's duty. And if we are unhappy with their work, we can hold them accountable at the ballot box. Yet people seem to be too caught in tweeting their anger rather than taking action in a democratically effective way.
The fervor surrounding abortion rights has been rampant since former President Donald Trump's nomination of Justice Neil Gorsuch, and only increased with the subsequent nominations of Justices Kavanaugh and Barrett. Pundits have perpetuated partisan poison by framing the Justices of the court in "conservative" or "liberal" thought when in reality they are in agreement nearly 80% of the time. But this framing has fueled divide and has thrown gas on a smoldering issue.
We are incapable of having an honest conversation on the legal merits of abortion because emotions are high, and we label any dissenters to our preferred opinion as evil.
To be clear, I'm going to pose more questions than I answer here because I am uncertain of my own views. I consider them ever-evolving and I invite healthy and respectful discussion among stakeholders in this issue.
POLITICO Breaks the News
Late yesterday (5/2/22), POLITCO reported on a leaked draft of the majority opinion penned by Justice Samuel Alito. This draft shows the court will be overturning Roe and Casey, causing a storm of reactions and protests. As I write this, demonstrators have gathered outside the Supreme Court building in Washington D.C. and I expect protests to pick up nationally.
"The immediate impact of the ruling as drafted in February would be to end a half-century guarantee of federal constitutional protection of abortion rights and allow each state to decide whether to restrict or ban abortion. It’s unclear if there have been subsequent changes to the draft."
The most immediate consequence of this ruling is that several states have what are called "trigger laws" set to activate as soon as abortion rights are ruled unconstitutional.
Should the Right to an Abortion be Federally Protected?
My short answer is simply "I don't know". An abortion is a medical procedure I would prefer to leave to medical professionals. Women should be free to consult with their doctors and decide their best course of action. That being said, abortions should not be a form a birth control used willy-nilly for those who irresponsibly failed to understand the consequences of sex. But this is an extremely nuanced debate. Or at least it should be.
The constitution provides government the duty to protect life, liberty, and property. So the challenge here is defining what constitutes a life. "Where does life begin" has been the widely contested question, and I'm not confident in my opinion on it. I personally have been a fan of the viability argument that states a fetus is likely viable outside of the womb at around 25 weeks, but that gets dicey. Many on the left ineloquently equate a fetus to a parasite prior to that period as the fetus cannot live without it's host. But does the potential for human life matter for legal definitions?
I think we need a clear and agreed upon medical definition of "human life" rather than suits in Washington D.C. making politically or religiously charged legislation.
But we can barely define a pandemic...
Justice Alito correctly states that "abortion rights" are nowhere to be found in the constitution, and therefore isn't inherently a protected right and must be given to the states to decide per the 10th Amendment. Its quite simple:
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
But is this a privacy issue? Does the federal government have the inherent right to protect a woman's medical privacy? I have often stated that I believe this issue is one that should remain between a woman and her physician, and out of the hands of government, with extreme exceptions. Who defines those exceptions?
The vast majority of abortions occur early on, and the small amount that are considered "late term" are done out of medical necessity due to the health of the mother or child. Its a fallacy for those on the right to assert late term abortions are rampant. The debate truly rests on early term abortions, and the reasoning behind them. But who is defining these parameters? Should those thresholds be left to democracy?
What About Rape and Incest?
A difficult, mental health invoking question. Not only is this a 9 month sentence for rape/incest victims, it potentially is bringing a child with severe genetic disability to term. Which brings up another ethics question: Should abortions be allowed for those who discover their child would be supremely defected? And what level of defect warrants an abortion? We have the technology now that can indicate genetic issues pretty early on in a pregnancy. How do we use this information?
I am personally of the mind that in cases of rape or incest, a woman should have the right to terminate said pregnancy early on. And yet that still feels controversial to state. Nothing is going to be clear cut and dry for me here, which makes it even more apparent that government should not be making the decisions for women.
The Underlying Issue in Abortion
Our nation has failed to address the real issues behind abortion rates. Are they high because women are getting abortions for fun? Or because they want to murder a child? No, and its egregious for the religious right to frame it in this way. Are the abortions born out of financial necessity or lack of desire for an "oopsie baby"? I'm sure that's a large chunk. How many were teenagers in high school or poor college students who felt too ill-equipped to handle a pregnancy and child?
"In 2019, 629,898 legal induced abortions were reported to CDC from 49 reporting areas. Among 48 reporting areas with data each year during 2010–2019, in 2019, a total of 625,346 abortions were reported, the abortion rate was 11.4 abortions per 1,000 women aged 15–44 years, and the abortion ratio was 195 abortions per 1,000 live births."
In a perfect world, everything would go according to plan and financial hardship would not be an issue right? But is that reason enough to warrant the termination of a pregnancy? There is always the adoption route, but our society has failed to address that issue too. Far to many children are stuck in orphanages and foster homes that often neglect their development.
What we need is a more robust sexual education in this country. One that doesn't teach abstinence only, but one that explains to young adults where and how to make responsible decisions. Creating better character with values that reflect the proper raising of children could prevent the amount of teen pregnancies, and therefore lessen the number of abortions in those cases.
Banning things outright has never boded well for us. It often creates an unsafe black market that risks more lives than it intends to save. Our culture needs to address the abortion issue from a place of compassion and understanding, while providing women the adequate healthcare they deserve.
We can debate the ethics of abortions for the rest of time, but no political figure has been brave enough to wade into the actual conversation. We've been left to partisan and religious talking points and have severely devolved into finger pointing rather than good faith arguments on the issue.
I have yet to fully digest what could come next, and I know my opinions and feelings are not set in stone. This is a complex, nuanced issue that requires a listening ear on both sides of the debate. Roe v. Wade may be ending, but how we address this going forward is all that matters.
Build the culture you want to live in and hold your elected officials to the fire at the ballot box.
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