The recent Supreme Court opinion in the Dobbs case and its reversal of Roe v. Wade is a political, social, and cultural earthquake with reverberating seismic shifts that has potential for more destruction and confusion in the coming weeks, months, and years. I am not sure how this will all play out in the 2022 elections and beyond, but my instinct tells me that this may be a pivotal moment in American politics and culture.
Why the issue of abortion holds such a powerful and tenuous position in our society is worthy of some deeper analysis. While America's other big issue, race, has obvious origins and easy to understand context, abortion's rise to such a defining cultural issue does not. I also think that the many in the media over simplify the abortion issue by framing it as an attempt by over zealous religious types trying to impose their beliefs about sex and women on all women, or that abortion is merely about the reproductive health of women. Similarly, the pro-life champions over simplify the issue as a matter of when life begins but often fail to adequately address the practical and real consequences of ending abortion,
Abortions ascent is not necessarily easy to grasp. I was surprised to find that abortion had not always been a key component of the Evangelical mission or purpose. Catholics had a much longer antiabortion history than their Protestant counterparts. I won't rehash details here, but Politico has a good article. My analysis is that the radical (and I don't mean that in the pejorative sense. It was truly radical in the literal sense of the word) transformation of American society that occurred in the 60's set the stage for abortion to elevate to a prominent place in the culture wars. My point is that the 60s ushered in revolutionary culture wars, first with Civil Rights and then later the feminist movement, along with other, less prominent peripheral issues. These movements were challenging and upending the traditional American social, political, and economical organizational arrangement.
Tradition and status quo rarely sit back and let radical transformations happen without a fight. And so, two adversarial sides emerged and have been engaged in this struggle for the last fifty years. As is the case with many long-lasting struggles, both sides eventually engage in a total war strategy where every issue is seen as having the potential to help defeat the other side. However, combatants get so consumed with winning the war, they often fail to really understand the battle and lose sight of the real issue. Race, sexuality, gender, guns and immigration join abortion as the battlefields of a larger cultural war where emotional arguments are the weapons of choice and leave reason, logic and nuance out.
Abortion is used by both sides to appeal to their base and ultimately win elections. And this is the ugly truth about abortion. Lost in all the rhetoric, the emotion, the irrationality, is a truthful and objective approach to understand the real arguments for or against abortion. Most often it is an issue both sides use as a get-out-the-vote drives The lack of a rational and clinical analysis allows both sides to behave in manners that show this issue is more visceral and ideological than it is principled. For example, think how irrational pro-lifers have to become to kill and injure abortion providers. Think how sick and twisted it is that some pro-choice advocates celebrate when women decide to terminate a pregnancy, or brag about the number of abortions they have had.
What rarely occurs are whether those arguments can be supported in the western democratic tradition. In other words, how does abortion fit the requirements for morally designed, logically constructed, and procedurally implemented law that fits within a framework of liberty, equality, protection of minority rights, and the rule of law? The short answer is that it does not. But let's take a closer look.
Morality and Law
One of the most used arguments against the pro-life movement is that they are attempting to force their religious and moral beliefs upon women. I think this is true, but it is not just merely a religious issue and not just a Judeo-Christian issue either. There are many issues in which a group of people attempt to force their morals on the rest of the public. This is what makes governing a large, diverse, democratic republic so complex and challenging. But let's take a closer look.
First, almost all laws represent the collective moral ethos of a society. Laws and rules typically are in many ways what a society believes to be good or evil. This is especially true in a western style democracy in which laws are enacted by various forms of participation of the masses. That's why when the collective ethos changes, laws typically follow suit. We have seen this with the legalization of marijuana in many states. Conversely, laws can also help change the moral ethos. For example, the Civil Rights Acts of 1960's helped change many attitudes about race and sex in very positive ways. Either way, morality is a central component to the laws and rules that govern much of our nation.
The collective moral ethos is informed and influenced by many factors including religion, intellectual trends, as well as media and the arts. The First Amendment's Establishment Clause prevents overtly religious concepts and ideas form becoming laws, however, it is still often a major factor. Abortion is a prime example of this, as religion is a significant trait for those who wish to ban it. Ideas that originate in academia and intellectual circles often find their way into our laws as well. Laws protecting and promoting transgendered individuals are evidence of this dynamic, as are many environmental laws. Hollywood and other forms of media also help shape the cultural ethos by influencing, promoting, and shaping how these ideas are consumed by the public. Movies and TV shows depicting gay characters, such as Ellen, helped lead to changing attitudes regarding gay marriage and ultimately changing of laws. Laws often are reflection of the attitudes and beliefs of the populace. And in America, ours is a diverse populace which leads to many diverse beliefs and attitudes. My point is that laws are merely expression of the societies morality.
But the Founders' were also very aware that people's attitudes can be manipulated by factions and demagogues who are promoting their self interest. That is why they created a federal system of government, made the legislative process multi-faceted, and established the Bill of Rights. The Bill of Rights, which may be the most significant, forces the government to protect those rights regardless of the current moral ethos. In fact, they are transcendent, in many ways, and are considered absolutes. In other words, despite a collective moral ethos and how it is being influenced, there are some laws and legal concepts that are out of reach of the moral ethos unless drastic measures are taken to change our legal framework. Many progressives lament the pesky Second Amendment and how it prevents many laws from restricting gun ownerships and sales. For this to happen, the moral ethos will need to be so strong, that it can muster the large democratic majorities to repeal it.
Abortion, however, creates an interesting and complex moral issue, and thus a legal conundrum. Without question, nearly all people believe in the sanctity of life and most people believe that a person should have agency over their bodies. Consequently, the major moral question that abortion presents is when does a fertilized egg become a life? Everything else is down stream from that question. Many pro-life advocates claim that life begins at conception whereas pro-choice supporters tend to see it as a life when the fetus can survive outside the womb. Some of the more extreme views insist that it is not a life until the mother actually delivers it. I would argue that this question is not nearly as easy as some people on both sides make it.
The Pro-Life movement's moral view on abortion is quite simple. It believes that life begins at conception and thus terminating a pregnancy at any point constitutes the killing of an innocent life. Pro-choice advocates arrive at an entirely different moral issue and that involves the freedom of individuals to maintain agency over their own bodies. Because women are burdened with the biological responsibility of pregnancy, they should be able to decide if they wish to bring that "clump of cells" to life. So, the moral conflict that we must wrestles with is that at what point does a fetus deserve legal protection or when does it's survival outweigh a woman's autonomy?
The moral complexity becomes even more great when one takes into consideration the motive for an abortion. I think a vast majority of Americans would tolerate abortions for physical health concerns of the mother and instances of rape or assault. If you listen to the pro-choice crowd, it would seem that most abortions are a result of one of these issues. But in reality, those reasons for abortions are a very small percentage. Other abortions are a result of parents finding out their child has some sort of disability like Downs Syndrome, which in my opinion is unconscionable. The vast majority of abortions are actually a matter of convenience and expedience. In other words, abortion is birth control ex post facto.
But do reasons matter? Are pro-choice advocates open for women deciding to abort a fetus for any reason? Would there be an uproar if expectant parents were informed their child would be gay chose to end their pregnancy? What if it was based on the sex of the fetus? Perhaps, reasons do matter. But who determines the criteria for assessing those reasons?
Logical Considerations
These moral issues, however, require a consistent and logical framework that is resistant to contradictions of the moral principal on which the law was based. Central to this endeavor is the definition and understanding of terms and phrases. For example, does the law view fetuses as a "life" in other areas of the law? If a women is pregnant and is murdered, does the state view that as multiple homicides? Some states do. Conversely, if a woman miscarries at any point in the pregnancy, does the state complete a death certificate? Ultimately, this distinction needs to be made and identified. But again, that is not so easy.
Pro-choice's moral construct states that women should have autonomy over their reproductive choices. The oft used phrase, "My body, my choice" is a reflective of their belief. But does this construct hold up in other areas of the law. Many pro-lifers have pointed out that many on the Left (and subsequently, pro-choice) were advocates for mandatory vaccines during the pandemic. However, this retort is not entirely fair (I am not pro-mandate). The vaccine and all other mandatory vaccines are seen as a a public health issue that has the potential of affecting others. Clearly, abortion affects more than just the mother. So, are there other instances in which laws are made that inhibit a person's ability to enact agency over themselves that really don't impact the public? We have laws that make it illegal to use drugs, drive a car without a seat belt, or ride a motor cycle without a helmet. All of which, I would argue, have little impact on the public health or safety. Are these false equivalences? Perhaps, but if laws can be made in other areas of life that restrict one's personal freedom, then the argument can be made it allows for laws to be made in other areas.
The other logical issue with the pro-choice activists is their inconsistent approach to the father. The pro-choice folks believe since women have the responsibility of carrying the baby to term, that provides them with the ability to decide the fate of the baby regardless of the father's wishes, If a woman decides to have the baby, the father has no choice in the matter and must provide financial support for 18 years of the child's life. By the way, I am in total support of father's being responsible for their procreations, much more so than just financially. In any event, the fetus, "clump of cells", or growing child is the result of two individuals, but one has no legal power, just responsibility.
Finally, outside of the heinous acts of rape and assault, pregnancy is something that is totally preventable. It would be one thing if pregnancy mysteriously happened and we didn't know how it happened or how we can prevent it. If a woman doesn't want to get pregnant, she should take the necessary precautions to prevent it. Abortion is down stream from their real reproductive rights and agency. I think women are smart enough, responsible, and fully capable of understanding and controlling their reproductive system in a manner consistent of their wishes.
The Legal Issue
The Western democratic tradition requires an adherence to the rule of law and not to the whims of individuals. This means that laws must be enacted in accordance to the law. Presidents, members of congress, judges, and bureaucrats do not get to make laws by dictate or proclamation. Laws must be both substantively and procedurally in harmony with the constitution.
When laws are enacted and later challenged based on legal arguments, the Supreme Court becomes the arbitrator and determines the law's constitutionality. What the Supreme Court doesn't, or shouldn't, do is weigh in on the morality of laws. That is for the legislatures to do as they represent the moral ethos of the constituents they serve. The Supreme Court's job is determine if the law was enacted in the manner prescribed by the Constitution and consistent with the Constitution's substantive nature. When a law is unclear, vague, or omits a topic, the Court attempts to provide clarity and a framework with which to interpret a law as it relates to the Constitution. Sometimes the Court's interpretations become widely accepted as apart of the moral ethos and it settles the matter. Other times, the Court's rulings don't settle the issue and in some cases can bring more confusion to the matter. In the
Dobbs ruling, the court did not make an argument against abortion, rather it ruled that
Roe was an incorrect interpretation, forcing the state legislatures or Congress to enact legislation in favor or against abortion. Nation Review's Andrew McCarthy does a great job
explaining the legal issues with
Roe and
Dobbs.
Final Thoughts
While I believe that the pro-life position is right, at least more right, I also see that there is a reality that they have to reconcile. Forcing women to have babies they do not want or know they cannot adequately care for is a recipe for many societal ills. How would society manage such issues? I would argue that the most significant factor for societal issues is the inadequate family structure that leads to broken kids becoming broken adults. The data is quite clear!!! If abortion was banned, it would lead to an increase of children being raised in homes that are neither emotionally or physically appropriate. Pro-life groups should be working to address these very real concerns.
With that being said, the real issue for the pro-choice crowd is not what they really say. It is not about women's health. Very, very few abortions are based on health reasons that could potentially harm the mother. It's not about the religious right wanting to control women. In fact, I think the pro-life focus is on the unborn child, not the mother. Pro-abortion views have been carefully cultivated, first, by a group of feminist intellectuals who saw the biological realities of sex to be a sinister part of the patriarchal nature of the Christian West. Well, that is not entirely true...Abortion was first promoted by progressive, social-gospel types who sought to limit the procreation of minorities, the poor, and the disabled and abortion was a means to limit their numbers. However, these feminist types in the 60's saw that their biological realities burdened them in ways that prevented them from having the perceived benefits of being male, mainly sexual freedom and career advancement. Every discrepancy, disproportional outcomes (only favorable ones), and difference between male and female is seen as part of the oppressive patriarchy. What feminists have been arguing for the last fifty years is that they want the benefit of being equal to males when convenient, while maintaining the victimhood status of being oppressed. Instead of embracing the wonderful and amazing characteristics that make them women different from men (the physical as well as the emotional and psychological) they are attempting to down grade women to being physically weaker versions of males. Motherhood should be celebrated and honored because it provides more fulfillment and satisfaction than sexual freedom and career advancement could ever do.
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