Commonweal - Symposium Comment
Dobbs leaves us with two fundamental questions: What is a person? and Who should decide? The answer to the first question seems to me straightforward. At no point in the first and second trimesters, nor in the third when the mother's life or health is at stake, does the fetus - sans thoughts, sans emotions, sans experiences, sans everything - have any rights that override those of the woman of whose body it is merely (during the time in which more than 90 percent of abortions currently take place) an infinitesimal part. Unlike its host, it is a potential person, not an actual person; a future person, not a present one. That millions of Americans think differently is a source of puzzlement and distress to me, as well as, I hope, humility. But with all the good will I can muster, I'm unable to find any plausibility in their view.
Suppose a state legislature outlawed sex-change operations, judging them unnatural and offensive to God. The Supreme Court would (probably) declare that law unconstitutional. Since the Constitution does not expressly mention sex-change operations, there can be no constitutional right to a sex-change operation; instead, the Court would, or should, rule that the legislature is not allowed to legislate its religious beliefs, even if they are the beliefs of a majority of the state's citizens.
Now what are the beliefs on the basis of which a legislature would likely outlaw abortion? Presumably that the fetus is a human person, entitled to the state's protection. What reason could they give for that conclusion? Crucially, they cannot say that a fetus has a soul. That is a religious belief. It is held almost exclusively by religious persons and defended almost exclusively with religious reasons. They could say that from conception the fetus is a fully human being, with a range of human attributes. But they would have to stipulate that belief and then refuse to hear expert witnesses, most of whom would rebut it. They could claim that the fetus contains a human genome, and that anything with a human genome is entitled to be considered human and protected by the state. But every cell in the human body - every hair, every fingernail, every bead of sweat -contains a human genome, which is just a complete set of human DNA. Of course, unlike those tissues, the embryo (its proper name during most of the first trimester) will, with a great deal of effort, pain, and sometimes danger on the part of its host, become viable. Virtually no one argues that it deserves no protection once it is viable - at 24-28 weeks. But by then, there is virtually nothing to protect it from. Fewer than one percent of abortions take place after viability, and most of those are necessary to save the life or health of the mother or because the fetus has been discovered to have a grave defect.
Is there really any doubt that an abortion ban would be a religious imposition? Among non-religiously-affiliated persons, there is very little support for restricting abortion. A majority of each of the major religions, excepting Mormons and evangelical Protestants, would allow abortion in some or all cases. As far as I know, Mormons haven't been active in opposing Roe. The only two groups who have been notably active are evangelical Protestants and the Catholic hierarchy. The bishops have maintained a steady opposition since 1973 but with little effect, so they deserve only a modest share of the blame for Dobbs.
That leaves evangelicals. I suggest they have made a devil's bargain. The evangelical movement has regularly provided the margin of victory for a radical party that has undermined democracy with gerrymandering and voter restriction, allowed the number of guns in the country to swell to lunatic proportions, voted its rich patrons a $1.5 trillion tax cut while 1 in 6 American children lives in poverty, and, with almost incomprehensible irresponsibility, has prevented serious government action to reduce carbon emissions, contemptuously disregarding Biblical (and papal) admonitions to stewardship of the Earth. Evangelicals voted overwhelmingly (85 percent) to place supreme political power in the hands of a sociopath and sexual predator, who took a wrecking ball to the Executive Branch and ended his term with a traitorous refusal to hand over power peacefully to his successor. Evangelicals inflicted all this misgovernment and disgrace on their fellow Americans solely in order to overturn Roe v. Wade. Quite possibly, their fellow Americans will not thank them for it.
Very few Americans - only 25 percent, the lowest level ever recorded - express confidence in the current Supreme Court. That is understandable. Five of the six conservative justices were appointed by presidents who had not won the popular vote. The egregious cheat by which Sen. McConnell stole a seat from the Democrats and, four years later, in identical circumstances, rammed through a Republican nominee, was a national scandal. The three most recent nominees were pressed for their opinion of Roe; each replied that they considered it "settled law" and then voted to repeal it at the first opportunity. Justice Thomas has so far refused to recuse himself from January 6-related cases, despite his wife's unflagging efforts to further the "Stop the Steal" canard. Perhaps Thomas will offer the same elegant reply to critics of this refusal as Justice Scalia did to critics of Bush v. Gore: "Get over it."
Governing without a majority has become a Republican specialty. Early in this century, Republicans forged a new strategy. They recognized that the politics of resentment (so well described in Thomas Frank's What's the Matter with Kansas?), for all its utility, could not guarantee them a lasting majority. They were, after all, and had always been, the party of the rich. So they conceived the idea of launching an electoral blitz at the state level in the 2010 elections, which, if successful, would allow them control of the decennial redistricting process. The Democratic Party was Washington-centric and uninterested in local politics, so the Republicans were wildly successful. After which they hired armies of computer consultants and gerrymandered every state they controlled to within an inch of its life. Of course, they did not invent gerrymandering, but they brought it to a level that was to previous Democratic efforts as World Cup play is to 10-year-olds on a back street.
As a result, a fair number of states have a majority of registered Democratic voters but a majority of Republican state and Congressional legislators, or else a considerable disproportion between the size of the Republican majority of voters in a state and the size of the state legislature's Republican majority. In 2018, Democrats won 54 percent of the statewide vote in Pennsylvania but only 45 percent of seats in the legislature. In Michigan, Democrats won 53 percent of the vote and 47 percent of the seats. In North Carolina, Democrats won 51 percent of the vote but only 45 percent of the seats. In Wisconsin, Democrats won 54 percent of the vote but only 36 percent of the seats. In Texas, party affiliation is 40% Democratic, 39% Republican, but Republicans have an 18-13 majority in the state senate, an 82-67 majority in the state legislature, and a 25-11 majority in the state's Congressional delegation. There are many such examples. And Texas, which tried to turn its citizens into anti-abortion bounty hunters, offers a characteristic example of radical Republicans' exquisite deference to the voice of the people. In May 2022, 78% of Texans thought abortion should be legal in some circumstances (39% in all circumstances), 28% only in cases of rape or incest, and 15 percent thought it should never be legal - i.e., agreed with their elected representatives. Nonetheless, it is a foregone conclusion that after Dobbs, Texas will pass a maximally restrictive law against abortion.
Dobbs proclaims that since "the Constitution makes no express reference to the right to obtain an abortion ... the authority to regulate abortion is returned to the people and their elected representatives." It is not surprising that the Court took no notice of the crisis of democratic legitimacy produced by unscrupulous Republican partisanship, since the Court has largely enabled it. Shelby v. Holder barred the Federal Election Commission from overseeing state election laws, and Citizens United - the mother and father of all anti-democratic Supreme Court decisions - removed all limits on political spending. The Constitution makes no express reference to gerrymandering or to unlimited campaign contributions, but this did not prompt the Court to return the authority to regulate these things to the people and their elected representatives. Nor did the Court trust the democratic process to regulate gun mayhem (District of Columbia v. Heller, NYSRPA v. Bruen) or climate chaos (West Virginia v. EPA). Dobbs is undeniably a tainted victory.
How would a genuinely democratic polity address constitutional controversies? Undoubtedly, "the people and their elected representatives" are the ultimate court of appeal, notwithstanding the Founders' well-known misgivings about our wisdom and character. And even though the Constitution makes no express reference to "judicial review," the deliberations of nine wise and learned men and women do sometimes supply essential discriminations and clarifications and model moral and political reasoning for the rest of us.
The problem is that American government is not sufficiently accountable. The Congress has generally been, and the Supreme Court has nearly always been, to the right of public opinion. The traditional remedy - voting the scoundrels out - does not work if only scoundrels have the resources to sponsor, lobby, and (after their term in office) employ politicians, initiate complex lawsuits, or saturate the media with their message. Campaigns for constitutional amendments and ballot referenda are expensive, often prohibitively. Our political media are commercial enterprises, not civic ones. Our political system is more accurately described as a plutocracy than a democracy, and the understandable attitude of more and more citizens is a sullen passivity, occasionally erupting into unreasoning rage. And this Supreme Court's only response has been to double down, announcing after 200 years its discovery that the Founders considered money to be the equivalent of free speech.
Dobbs makes one cogent criticism of Roe and some not-so-cogent ones. One of the not-so-cogent ones is of Roe's solution: the trimester scheme. But that approach, which even Justice Blackmun conceded was "arbitrary," nonetheless made practical sense. It gradually shifted authority over the abortion decision from the woman and her doctor to the state, which had a gradually increasing rational - ie, non-religious - basis for intervening as the pregnancy proceeded. Dobbs could result in a dozen different schemes, any or all of them equally arbitrary.
Not very cogently, Justice Alito writes: "Far from bringing about a national settlement of the abortion issue, Roe and Casey have inflamed debate and deepened division." But Roe and Casey did not force anyone to do anything, whereas Dobbs will force tens of thousands of women to go into debt or leave their state or risk their health or risk criminal prosecution or bear unwanted children. (Or, of course, forego sex - and not all of it will be extra-marital sex.) For Dobbs, women are just one party in an "inflamed debate," with nothing more at stake than legislators or other citizens, which may explain the opinion's curiously tone-deaf remark: "The regulation of abortion is not a sex-based classification." There is undoubtedly a technical meaning of "sex-based classification" that makes this sentence technically true. But the evil of forced pregnancy is very great, and it is entirely sex-based.
Dobbs's cogent criticism - however hypocritical in view of this Court's own practice - is that the Court should normally defer to the people and their representatives, even if it thinks them mistaken. That is what we have - or wish we had - a democracy for.
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George Scialabba's selected essays will be published by Verso next year.
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