May 30, 2022

Originalism and the Second Amendment

The Second Amendment, at least insofar as it has been interpreted by the Supreme Court and has been treated as a political third rail by Congress, is proving to be the most dangerous amendment of the Bill of Rights. Its sacrosanct status is making the country increasingly lawless and dangerous. The number of guns in the country continues to increase, and the restrictions placed on gun possession and use, contrary to all reason, continue to decrease. For too many Americans, preserving what they see as their gun “rights” is more important than protecting the lives of young children.

We need to consider the historical context of the Second Amendment, which reads as follows:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The amendment, along with the rest of the Bill of Rights, became effective on December 14,1791, not long after the Constitution itself was adopted as our fundamental body of law.

Having so recently won its freedom from Great Britain, the new nation was concerned about maintaining its security and protecting its independence. The Continental Army, which was established by Congress on June 14, 1775, was largely disbanded after the Treaty of Paris. There was strong sentiment against maintaining a standing army. Providing security for the young country fell to the militias and other local officials.

The state militias were expected to handle local conflicts and could be called upon for national defense if need be. They were composed of citizen soldiers who were required to provide their own weapons. Clearly—perhaps not so clearly to Supreme Court justices—the Second Amendment was designed to maintain the militia system, which was well-established when the Bill of Rights was proposed.

The “arms” of the amendment referred primarily to muskets. The pistols and rifles of the 1790s were primitive affairs, and bullets, as we have come to know them, had not yet been invented.

In District of Columbia v. Heller (2008). the Supreme Court seemingly ignored the introductory clause of the Second Amendment and declared that the “right” of the amendment applied to individuals for self-defense at home. It seems likely that the court will expand individual gun rights even further in future decisions.

Republican justices are fond of the concept of originalism, that the Constitution and laws mean only what they meant when they were adopted. If this judicial theory is applied to the Second Amendment, should it not only allow individuals to possess muskets or other arms available in 1791? In his draft opinion in the case of Dobbs v. Jackson Women’s Health Organization, Justice Alito argues that the Constitution cannot grant a right to obtain an abortion because abortion is not mentioned in the Constitution. (Nor are women, for that matter, as they don’t seem to have mattered much in the late eighteenth century.) Under originalism, how can “arms” encompass modern pistols and assault weapons, which were clearly not even imagined in 1791?

Of course, originalism is nonsense. Carried to its logical conclusion, it ossified our laws, leaving them trapped in a time period ignorant of the modern world. If the Constitution does not give women rights over their own bodies, neither should the Second Amendment give a right to own assault weapons and other modern “arms.”

May 29, 2022

A Church Demonstration of Sympathy and Outrage

The lawn of Christ Episcopal Church in Indiana, Pennsylvania, hosts two sets of crosses today. On one side of the entrance are crosses representing victims of the recent supermarket shooting in Buffalo, New York. Each cross, other than the one in front, carries the name of a person killed on May 14. The cross in front says “Buffalo, NY.”

Sadly, on the opposite side of the church entrance is a larger collection of crosses. These carry the names of the victims, mostly children, killed in the Texas elementary school massacre. The forwardmost cross says “Uvalde, TX.”

The crosses were conceived and executed by the church’s Oremus Prayer Group. It is surprising—it shouldn’t be, of course—that a field of crosses makes a stronger impression on the mind than does a simple cardinal number communicating the same quantity of lives cut short.

Our local church is not one given to public displays, but I happily endorse this one. Also, I have more than once suggested that our rector incorporate more social commentary into his sermons, which typically more resemble Bible studies than powerful messages to the faithful. Today, however, he decried gun culture in his sermon and prayed for the dead in Buffalo and Uvalde by name.

Perhaps recent massacres have shaken the people of America more than usual. It is to be hoped that thoughts and prayers will no longer be enough. It remains to be seen whether any significant actions will follow.


Church lawn with crosses
Church lawn with crosses

Crosses for Buffalo victims
Crosses for Buffalo victims

Crosses for Texas victims
Crosses for Texas victims

May 27, 2022

A New Wine-Tasting Rule

Pre-COVID—will that become a common period designation?—I regularly attended the free wine tastings at a local liquor store. (For non-Pennsylvania residents, I must explain that the distribution of liquor is socialized in this state. Until recently, this was true of wine as well. All liquor/wine stores are run by the state.) My visits provided an opportunity to sample wines and to occasionally buy bottles of those I found satisfying. Perhaps even more importantly, it was an opportunity to socialize with friends who also enjoyed wine. The liquor store was my version of Cheers. The cast of characters was not quite as colorful as those of the TV show, but we had our standouts. Unsurprisingly, wine tastings were discontinued when the COVID pandemic hit the country.

“Cheers” Logo
Logo from the television show
Recently, the wine tastings were resumed. Yesterday, I attended one. The wines were uninteresting, as it turned out, but I did get to see friends I had not seen since the tastings were suspended. As usual, I arrived with my own glass and a bottle of water to wash my glass between wines. (This is a habit I picked up from my son when he was in college in Santa Fe, New Mexico. He is now a professional winemaker.)

As soon as he saw me sit down at the counter, Matt, the local wine expert and server for the tastings, told me that he could not pour wine into my glass. This was apparently a new regulation handed down from on high. I was incensed. I was sure that few if any patrons in Pennsylvania brought their own glasses to wine tastings and wondered if the regulation was directed at me personally. Matt assured me that he had nothing to do with the new rule, and neither of us could imagine a rationale behind it.

The reason for bringing my own wine glass, of course, is to better see the wine’s color and to be able to swish the liquid around and better perceive its aroma. One cannot really do these things in a plastic cup that holds 50 ml. or so.

Once I recovered from my shock, however, I recognized the obvious workaround. Matt poured the wine into a plastic cup, and I poured the cup into my wine glass. Everyone was happy.

May 26, 2022

Bubonic Plague in the United States

Seldom do I miss an episode of American Experience on PBS. These programs provide insights into both well-known and obscure corners of American history.

The most recent film offered by American Experience is “Plague at the Golden Gate,” definitely a story from an obscure and forgotten episode of our history. Who knew that, at the turn of the last century, the United States faced the threat of bubonic plague emanating from San Francisco? (I was relieved to know that the danger was in our distant past.)

As is typical of the series, “Plague” was informative and entertaining. It was also a bit depressing, as the power elites of San Francisco exhibited their racism toward Chinese residents and their concern for profits over public health.

I appreciate the challenges faced by filmmakers telling a story of a time in which images were not as common as they are today. It can be a struggle to maintain visual interest using available material. “Plague” did a fair job in this regard, making good use of photographs, documents, rare movie film, and occasional contemporary video used to provide context.

I do have one complaint against “Plague, and it’s a beef I’ve had with more than one documentary. More than once, film of a passenger train pulled by a steam locomotive was shown to illustrate the travel of characters in the historical story. As a railfan, I recognize that these film clips are almost certainly not illustrating the exact travel in question but are instead stock footage. One hopes that the footage at least represents railroad equipment of the period, perhaps even shown traveling through terrain that the travelers described would have seen.

I view such interludes of train travel with a less-than-critical eye. Was the locomotive from the right period? The coaches? Can I identify the railroad, and was an eastern railroad standing in for a western one? There are questions I don’t usually ask myself. On the other hand, when I saw a locomotive that was clearly British and could never have appeared on American rails, I sat up and took notice. That seemed less like literary license and more like outright deception.

Overall, the filmmakers did a fine job using available images, and I’m sure they thought they could get away with images of a British train. Or maybe they didn’t even realize their mistake. I’m sure most viewers didn’t. As they say in tennis, however, it was an unforced error and certainly an unnecessary one.

________________

Readers of my blog probably know that I have a special interest in language. The narration of “Plague” contained a delicious phrase I just had to write down for future use. Perhaps you can think of situations to which the phrase “the complacency ignorance” could profitably be applied.

May 25, 2022

Thoughts on Yet Another Gun Massacre

Yesterday’s school massacre in Uvalde, Texas, coming as it did on the heels of the supermarket massacre in Buffalo, New York, made me sadder and madder than I can ever remember being in response to a news story. Why do we countenance such obscenities,  reacting with only “thoughts and prayers”?

Of course, thoughts and prayers provide some small comfort. The presiding bishop of the Episcopal Church, Michael Curry offered a prayer from the Book of Common Prayer:

O God, whose beloved Son took children into his arms and blessed them: Give us grace to entrust these innocents to your never-failing care and love, and bring us all to your heavenly kingdom; through Jesus Christ our Lord, who lives and reigns with you and the Holy Spirit, one God, now and for ever. Amen.

President Biden, who knows well what it is like to lose a child, was unusually animated in his response. Speaking of the recurrence of mass shootings, he declared, “I am sick and tired of it.” (I could relate to that.) “Where, in God’s name, is our backbone?” he asked. “It’s time to act!”

Neither Bishop Curry nor President Biden nor I has much actual hope that this country will soon make changes that could turn back the rising tide of multiple assassinations of innocents. Americans long for such changes, but politicians refuse to deliver them. Politicians, primarily Republican politicians, will continue their steadfast inaction as long as voters are more interested in gasoline prices, low taxes, or high school trans girl athletes than in reining in the slaughter of our citizens.

Meanwhile, I fear that children will be afraid to go to school. Will they be reluctant to make friends for fear that their friends could be taken away from them in an instant? Need we send our children to school in body armor? Or will we conclude that public education is too dangerous?

Whereas I have no idea how we can create a safer America, I can certainly dream about how such a nation might look:

  • All guns are licensed for a fixed term and subject to renewal. There is a fee for licensure, and licensing is subject to a background check.
  • All gun transfers, however effected, require revocation of the supplier’s license and the licensing of the receiver.
  • All firearms must carry serial numbers, which are recorded on licenses and entered into a permanent database.
  • Carrying a gun, except for sport, is lawful only for persons with a special need to do so. (A guard for an armored truck, for example, would likely qualify.) This requires a special license and an enhanced background check.
  • The purchase of ammunition and components needed to make ammunition is recorded in a government database that is maintained indefinitely.
  • Hunting with a firearm always requires a hunting license.
  • No civilians are allowed to possess assault rifles, machine guns, etc. Prohibited weapons are specified by rate-of-fire and the ability to deliver a projective capable of a given kinetic energy, rather than a list of gun models.
  • No weapon is legal that can fire more than 10 rounds without reloading. Magazines holding more than 10 rounds are prohibited.
  • No one younger than 21 years of age may buy or own a weapon.
  • Owners of a weapon are responsible for its use and incur liability if, for example, a child gets hold of the weapon and injures him- or herself or others.
  • Violations of weapons laws result in fines, mandatory jail terms, and permanent loss of the right to own a weapon.
  • There are, no doubt, other wise provisions needed that I haven’t thought of.

One could hope that, in the world I imagine here, most police officers would not need to carry a firearm.

-----------------------------

The photograph below was posted on Facebook. It is of Makenna Elrod, a victim of yesterday’s shooting. How can you look at this child and not want to stop this firearm madness?



May 16, 2022

Keep Abortion Legal

My post A Comprehensive Examination of the Abortion Question is admittedly lengthy. Realizing this, I thought it would be helpful to offer a more modest essay in support of abortion rights. Below, I argue that abortions should be legal. While admitting that it may be reasonable to restrict the procedure in some circumstances, I leave it to others to suggest what those circumstances might be.

 

Keep Abortion Legal
by Lionel Deimel

Religious dogma underpins anti-abortion passions. Too often, we fail to dispute its relevance and to claim precedence for individual liberty in a free society.

Principled opposition to abortion comes largely from Roman Catholics and Evangelical Protestants, who view children, however conceived, as gifts from God not to be disparaged. This view ultimately derives from Pope Paul VI’s 1968 encyclical Humanae Vitae, which, notably, cites no directly relevant biblical authority for its moral imperatives.

The problem with viewing a pregnancy as God-given is that seeing God’s hand in human affairs cannot easily be circumscribed. If God’s will creates new life, are not cancers, floods, wars, and earthquakes likewise divine “gifts”? Logically, then, medical intervention, levees, diplomacy, and building codes are unnecessary and perhaps sinful, as they attempt to thwart God’s will. If such conclusions are unacceptable, then the notion of a pregnancy’s being part of God’s plan is in no way dispositive.

The concept of a soul underlies the thinking of many abortion foes. They believe that possession of a soul endows humanness, and the intentional extinction of any human is murder. In the most extreme version of this reasoning, a soul attaches to a fertilized egg, thus creating a sacrosanct entity even before a pregnancy[1] is established. This view logically leads to opposition not only to abortion but also to contraception. If a fetus[2] acquires a soul sometime after fertilization, the use of contraceptives rather than the so-called rhythm method may be seen by women as licit. Pharmaceutical and mechanical contraception are widely used by Roman Catholics despite their church’s prohibitions.

America is a secular nation with a tradition of separation of church and state. Codifying religious dogma in law is improper in principle, especially so when that dogma is espoused by a minority even of believers. Yet this is what abortion advocates would have us do and what legislators are increasingly willing to do.

The impulse to protect human life is deeply embedded in law. Should abortions be prohibited because the fetus is human? It surely is. But so are fingernails and skin shaved off in a fall onto the sidewalk. Is an early-stage fetus a human? The answer must be no. Early on, it is less complex and capable than a goldfish. Even if it has a soul—not a valid legal concern—it lacks the biological mechanisms to appreciate it or to exercise a human will in a meaningful way.

Though a young fetus is not a human, its mother certainly is. According to the U.N. Universal Declaration of Human Rights, she “has the right to life, liberty and security of person.” This, along with America’s self-declared commitment to individual liberty, suggests that a woman has a right to end a pregnancy within her own body without state interference.

Does the state have a compelling interest in preventing abortions? Early in gestation, it is difficult to see one. If we need more citizens, increasing immigration is a more direct way to obtain them than is requiring women to carry unintentional and unwanted pregnancies to term.

Some argue that an abortion ban is needed for the “protection” of women, but from what harm? Some women regret their abortions; many are relieved by them. An unplanned pregnancy can derail an education or career, can lead to financial hardship, and can endanger a woman’s life. An abortion, after all, is nearly always less risky than carrying a pregnancy to term. A government that “protects” a woman by removing her freedom to terminate a pregnancy is a paternalistic state that infantilizes women and makes them second-class citizens. We are all diminished thereby.

Women have myriad reasons for choosing abortion, and, through much of a pregnancy, we have no right to second-guess their decisions. At some point, of course, it is difficult not to view a healthy fetus as an actual human not subject to abortion. We can debate where that point is; it is surely before the mother is in labor. The Supreme Court once identified fetal viability as the critical point, but the threat now is that the court might instead choose implantation or even fertilization.



[1] Medical science considers the implantation of a fertilized egg into the uterus as the beginning of pregnancy.

[2] I use “fetus” to encompass a fertilized egg and everything into which it can develop, including, ultimately, a baby. This usage is unconventional but is adopted because no existing word has the intended scope. I use “mother” and “woman” to refer to the pregnant person carrying the fetus, irrespective of any other concerns, such as the genetic relationship of mother to fetus.


NOTE: A PDF of this essay may be downloaded here.

May 14, 2022

Bans Off Our Bodies Rally

People in hundreds of cities and towns were marching for abortion rights today. Indiana, Pennsylvania, is not a city large enough to rival the events in the likes of Chicago or Washington, D.C., but we had a respectable turnout.

I spent last night and this morning making signs for our local event. The products of my efforts can be seen below.




The march organizers supplied signs for the event, and others, as I did, brought their own.

The event began with speeches, though the speakers were basically preaching to the choirs about the need for women to make their own decisions about their bodies. The speeches ended with a plea to vote for Democrats in the upcoming elections, as Republican candidates are uniformly opposed to abortion.

Once the rhetorical part of the program was completed, everyone marched to the courthouse, crossed Philadelphia Street—see photo below—walked back on the other side of the street, and crossed the street again to return to IRMC Park, where we had begun. During our march, signs were visible to cars passing by. Unfortunately, Saturday afternoon did not see a lot of traffic on Philadelphia street, so it isn’t clear what effect our efforts had on Indiana public opinion. But it was satisfying to have participated in the demonstration and enjoyed the camaraderie of like-minded citizens.

                      

May 13, 2022

Mitch (as usual) Got It Wrong

Senate minority leader Mitch McConnell, trying to counter the outrage over the possible overruling of Roe v. Wade, dismissed the fact that, in so doing, the Supreme Court would be acting against the well-established views of the American people. In an NPR interview, he said, “So, for the Supreme Court on any issue to reach a decision counter to public opinion is exactly what the Supreme Court is about—is to protect basic rights even when majorities are in favor of something else. It happens all the time, so I don’t think that’s particularly unusual.”

Mitch McConnell
Mitch McConnell

There is some truth to what McConnell said. The job of the high court is to apply the law and the Constitution to cases before it, irrespective of public opinion. One could argue, however, that the court has more often ruled in favor of public sentiment despite the law. (Think Plessy v. Ferguson or Korematsu v. United States.) In support of his point, McConnell cited Texas v. Johnson, the 1989 case in which the Supreme Court ruled that flag-burning is protected free speech under the First Amendment.

McConnell picked a bad example. True, the public probably did not agree with the decision in Texas v. Johnson, but the public was wrong. The court correctly affirmed a constitutional right in Texas. If Roe is overruled by the justices, they will surely be disregarding public opinion. More importantly, they will be extinguishing a well-established constitutional right.

One may quibble about the reasoning in Roe v. Wade. The late Justice Ruth Bader Ginsburg agreed with the effect of the court’s opinion, but she argued that a more certain decision should have been based on an equal protection argument. In any case, overturning Roe will not put the abortion issue to rest; it will intensify it. If Americans do not enjoy a right of privacy articulated in Roe, this country cannot consider itself a free nation. Future rulings by this out-of-control extremist court may be expected to restrict even more human rights.

May 12, 2022

Safe, Legal, and Accessible

It used to be common for proponents of legal abortion to assert that the procedure should be “safe, legal, and rare.” The word “rare” was meant to mollify and reassure abortion opponents. The thinking was that abortions could be reduced in number through conscientiously implemented measures such as education and readily available, inexpensive contraception. Abortion opponents, the misnamed “pro-life” crowd, took “rare” to suggest something quite different. To them, making abortions rare was a license to suppress abortions through coercive legislation and misinformation. They have been very good and exceedingly imaginative at that.

The slogan “safe, legal, and rare, has a nice ring to it, and it seems a shame to have to jettison it. On Facebook, I offered the formulation “safe, legal, and common.” Although some liked the replacement of “rare” with its opposite, many were justifiably uncomfortable with the suggestion that we should be increasing the prevalence of abortion as a positive good. Despite what the anti-abortion activists may think, no one sees abortions in the abstract as a good thing.

Even if abortions are safe, which they are, and legal, which they increasingly are not, safe and legal are irrelevant if abortions are not easily and economically obtainable. This led me to consider words to replace “rare.” No single word seemed perfect or comprehensive in its meaning, but “accessible” seemed a pretty good choice. Incorporating this word into the graphic I originally posted on Facebook yielded the graphic shown below. People may use it as they see fit.
 

Abortion should be safe, legal, and available

May 8, 2022

Financing Abortions

I am feeling overwhelmed by the multitude of stories about what life in the United States will be like if Roe v. Roe is overturned. I keep thinking about what I can do to minimize the unnecessary tragedy a radical Supreme Court may be about to visit upon our country. Yes, I can contribute to Planned Parenthood and similar organizations, but my contributions will necessarily be small. Moreover, I am already contributing to Democrats, environmental organizations, cat welfare groups, and institutions involved in mitigating the catastrophe that is the war in Ukraine.

Although I feel incapable of offering really significant monetary aid to women in a post-Roe America, I do have a plan to suggest. Perhaps people can be found to implement it.

Some organizations are providing financial assistance to women who need to seek an abortion outside their state. The need for such support may soon become markedly greater. It will be difficult to meet this need, particularly over the long term, from charitable contributions alone.

Many people willingly take on the obligations of motherhood. For some women, however, the costs, both direct and indirect, of not obtaining a desired abortion are enormous. There are prenatal medical and delivery costs. Then there are opportunity costs incurred both before and after delivery. And, of course, the costs of supporting a child are an ever-increasing, seemingly interminable financial drain. This is to say nothing of the psychological costs to the prospective mother.

If, for any good reason, a pregnant woman wants to end her pregnancy, it is clearly wise for her to spend money on an abortion to avoid the much greater costs of carrying a baby to term and rearing him or her. In the post-Roe world, she may require thousands of dollars to obtain the procedure, but the investment will pay handsomely in the long run.

Such a financial calculus is unassailable, but what if the woman does not have the wherewithal to finance the plan. And what if no charitable organization is forthcoming with assistance? It is unlikely that charitable groups will be able to underwrite abortions for every woman in need of financial assistance. We don’t want a woman’s only option to be trusting an abortion from neighbor Melvin’s second cousin in his basement down the street.

The answer for a woman in such circumstances could be a low-interest “abortion loan.” Such a loan, whether provided by a charitable organization, special-purpose financial firm, bank, or even the federal government, would be sufficient to cover the travel, medical, and incidental expenses related to obtaining an out-of-state abortion. The loan would be paid back in one to five years, depending upon the financial resources of the borrower. Because the lending entity is partially or totally self-financing, the need for ongoing charitable income would be minimal or nonexistent. If the government is the lender, borrowers who have limited prospects for repayment could be allowed to perform community service in lieu of loan repayment.

No doubt some—particularly anti-abortion zealots—would object to abortion loans, particularly if the government is the lender. Nonetheless, the idea has promise. It is unfortunate that we may soon need novel responses to the loss of what has been a constitutional right for half a century, but novel responses may well be necessary.

May 7, 2022

A Comprehensive Examination of the Abortion Question

What follows is a minor revision of an essay first written last December and subjected to minor changes a few days later. Given the precarious state of abortion rights, I am re-posting it in the hope of reaching a wider, more engaged audience. I am doing so with additional revisions intended to clarify certain points and to better reflect current circumstances.

Reading through my blog, I find that I have addressed abortion rights often. In the essay below, I may revisit ideas presented earlier, but my goal is to treat reproductive freedom more comprehensively than I have in the past. The right of women to control their own reproductive lives is being seriously challenged. It is critical that those of us who believe that women have an inherent human right to make decisions about their bodies without interference from government or individuals collect rhetorical tools that may be useful in the struggle for women’s freedom. Ultimately, however, it is not rhetoric alone that will prevent women from becoming permanent second-class citizens, but the ballot box.

Although my blog promises “quick takes,” this particular post is unusually long. Therefore, I am providing a table of contents for those who may wish to read it selectively:
Introduction
The Case for Unrestricted Access to Abortion
Objections to Abortion
Supreme Court Actions
Additional Considerations
The Fraught Future

 Abortion has been practiced for millennia. It has sometimes been controversial, though not always. Contemporary debate about the procedure seldom proceeds from first principles. Yet exploring the roots of arguments on both sides of the abortion debate allows us to test those arguments for consistency and reasonableness, and it helps us sharpen our own thoughts. This gives us tools to counter the foundations of opposing views, whether or not those foundations are acknowledged.

 

Political Context

Legal scholars generally agree that the Constitution does not offer unambiguous guidance as to the propriety of statutory restrictions on abortions. In Roe v. Wade (1973), the Supreme Court declared that women have a constitutional right to have an abortion. The court based its decision on a right to privacy that itself is inferred from the due process provisions of the Fifth and Fourteenth Amendments to the Constitution. That right has been invoked to justify other rights, such as the general use of contraceptives and same-sex marriage.

Conservatives believe that Roe was wrongly decided. Not even all liberals are happy with the details of the decision. Justice Ruth Bader Ginsburg, for example, argued that Roe should have been based on equal protection. Nevertheless, Roe has been the law of the land for nearly half a century. (Roe was weakened but not overturned in Planned Parenthood v. Casey (1992). It was actually this later case that introduced the viability criterion discussed below.)

There is a strong strain of individualism in the United States, the notion that the government should not interfere in one’s personal affairs. This sense of personal freedom is usually framed as the ability of the individual to act as he or she sees fit, as long as no one else is harmed thereby. This formulation is not precisely codified in law, though it provides an informal guide to legislation. Nevertheless, the appearance of “LIBERTY” on U.S. coins has real meaning. The decision in Roe is consistent with this American ethos. Alas, people who are so jealous of their own freedom are not above trying to restrict that of others based on their own beliefs. This is the case with supporters of abortion restrictions who suffer no actual harm from the abortions of fellow citizens.

Most opponents of abortion rights, when pressed, offer a religion-based argument for their position. Few would argue, in public at least, that men should control women’s reproductive lives or that women who face an unintended pregnancy deserve to suffer the inevitable consequences. Many may well hold those views privately.

There is nothing wrong with advancing religious rationale in support of public policy. In the secular nation that is the United States, however, religious arguments have no privileged status. They are only useful for convincing others that are susceptible to them and who vote for like-minded legislators, lobby legislators, or, as legislators themselves, can vote based on their religious views. When our Republic is working properly—arguably, it is not doing so very well at the moment—religious views do not beget sympathetic legislation except when they are widely held and are not in conflict with the Constitution. 

Opposition to legal abortion is largely a minority religion-based view held, and held passionately, by a minority of citizens. Proponents of change are always more passionate in their beliefs than those who accept the status quo. That passion is intensified when undergirded by self-righteousness born of religious certainty. It is ironic that support for legal abortion is a majority position in the population at large but a minority position within the legislative class. (Explaining this phenomenon is beyond the scope of this essay.) Supporters of abortion rights have not had the zeal of their opponents.

The status quo at the moment is that women, anywhere in the United States, have, at least in theory, a constitutional right to obtain an abortion until the time when the fetus is “viable.” (Later abortions are obtainable under certain conditions and in certain jurisdictions.) Viability is understood as the point at which the fetus could survive outside the womb, generally considered to be about 24 weeks into the pregnancy. The Supreme Court has, in recent years, permitted states to make it increasingly difficult for women to exercise their theoretical right to an abortion. Cases currently before or likely to come before the Supreme Court, with its Trump-nominated Republican justices, may provide the opportunity for the court to jettison the viability standard or even to extinguish the constitutional right to abortion.
 

The Case for Unrestricted Access to Abortion

The case to be made for unrestricted access to abortion services is straightforward. Procreation is an intensely personal enterprise. By virtue of a right to privacy implied in the Constitution, the equal protection clause of the Fourteenth Amendment, and the reservation of unenumerated rights to the people declared in the seldom-cited Ninth Amendment (“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”), one would expect that a woman should have an absolute right to terminate a pregnancy. Why should not the removal of a fetus be any different from the removal of, say, a prostate? 

Although abortion opponents readily cite the Tenth Amendment, which reserves undelegated powers to the states, they neglect to observe that those powers “are reserved to the States respectively, or to the people” (emphasis added). 

In fact, the right to bodily integrity is widely acknowledged as a human right—the U.N. Universal Declaration of Human Rights proclaims: “Everyone has the right to life, liberty[,] and security of person.” Such a right is seemingly embedded in the Fourth Amendment (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated … .”) Unfortunately, the United States has a mixed record with regard to protecting the bodily integrity of its citizens. Drug laws and prohibitions against euthanasia, for example, seek to limit the freedom to control what one does with one’s body. Any law limiting the right to abortion is of that nature.

Keep Abortion Legal button

Sociological reasons for the universal availability of abortion are legion. Unintended pregnancies create personal, psychological, and financial difficulties. The pregnant woman may be too young and immature to handle motherhood or may find herself in circumstances in which having a child would be an impossible burden. She may be trying to complete her education or may simply have too many children already. (Many married women with children seek abortions.) She may be unable to support a child financially. She may have medical conditions that make pregnancy dangerous or even life-threatening. She may be carrying a damaged fetus likely to be severely handicapped or to die before birth. Her relationship with the father may be dysfunctional or violent. Or the pregnancy may be the product of rape or incest. To deny an abortion to a person in any of these circumstances is cruel and insensitive. If a woman is not allowed to make the decision to have an abortion based on whatever rationale she thinks compelling, then she does not enjoy the freedom that so many abortion opponents profess to value.

Opponents of abortion access are often judgmental and unable to appreciate the problems an unintended pregnancy causes or to empathize with the seeker after an abortion. They accuse women who want an abortion of using the procedure as birth control or of being careless about contraceptive use. But obtaining an abortion, even in the best of circumstances, is neither pleasant nor cheap; abortion is surely not a rational form of birth control. Fault-finding regarding an unwelcome pregnancy is unhelpful; the pregnancy itself demands to be dealt with. No birth control method save sterilization or celibacy is 100% effective. Even the married and conscientious get pregnant.

Abortion performed by a physician or through the use of medications is very safe, considerably safer than carrying a pregnancy to term, which was not necessarily the case when abortion restrictions were first imposed in the nineteenth century. Sadly. postpartum deaths and deaths resulting directly from childbirth are higher in the United States than in other developed and many underdeveloped countries. That abortion poses less risk to the patient than childbirth argues for choosing it if carrying a pregnancy to term is undesirable or risky.

Finally, it should be said that supporting unrestricted access to abortion services does not suggest that an abortion, in and of itself, is a good thing. In a perfect world, every pregnancy would be welcomed and would result in the birth of a beautiful, perfect baby delivered into the bosom of a loving family. We do not live in that world. Abortions are needed to make our imperfect world less imperfect.

 

Objections to Abortion

Those who support restrictions on abortions make four kinds of arguments. (Their true beliefs may differ from what they say in public.) First is the argument that the fetus, embryo, or even the fertilized egg is a human being. (Before reproduction was better understood, people believed that sperm contained actual, complete, yet minute, humans.) This is the absolutist argument. Second, anti-abortion advocates unwilling to insist that the tiniest collections of cells are human beings are quite willing to assert a need to protect the “unborn” at some point post-conception. A currently popular marker is the emergence of a “fetal heartbeat.” A more generous version of this position identifies viability as the point at which the growing fetus demands protection. The third argument is that abortions must be restricted to somehow advance a public policy objective such as protecting the mother. Finally, some argue that, for various reasons, abortions are simply unnecessary. Underlying most of these arguments is the belief that the pregnant person carries a distinct and separate person worthy of and in need of protection.

Let me address these arguments in turn.

The contention that a baby is sacrosanct beginning as a fertilized egg is almost always the view of right-wing Christians, who see a baby as a gift from God not to be rejected. This argument ignores the part people play in creating a pregnancy. Moreover, if a baby is God-given, are not cancerous tumors, hurricanes, and earthquakes also dispensations of God? Are we expected to accept these “gifts” meekly and without attempts to mitigate their effects? Neither the Old nor the New Testament has anything substantive to say about abortion. Jews acknowledge personhood only when a baby exits the birth canal. Jesus was mute on the matter. In fact, the “Christian” case against abortion, which is seldom challenged, is weak.

It is clarifying to consider analogues of the embryo. When a chicken lays an egg, we don’t call it a chicken. Likewise, an embryo is not really a human being. It is human tissue, but so are fingernails, hair, or blood. We can also consider the ontogeny of the embryo. Although it has the potential to become a complex animal, it is less advanced than a mouse or a dragonfly.

The prohibition of abortion originates in Roman Catholic theology, specifically in Pope Paul VI’s 1968 encyclical Humanae Vitae, the product of celibate men devised more or less out of whole cloth. And clearly, any argument involving the acquiring of a soul is a minority religious concept inappropriate as a basis of secular law. (When does the product of a pregnancy obtain a soul? What happens when an ensouled fetus dies in the womb? How many angels can dance on the head of a pin?)

The most radical anti-abortion proponents want the product of a pregnancy, from the point of fertilization onward, to be declared a “person,” with the same rights as other natural persons. Accepting this notion presents myriad practical and legal problems, which I will consider below.

Next are the arguments that draw a line somewhere before which abortion is proper and after which it is generally not. This is a difficult line to draw. The “fetal heartbeat” criterion is problematic. When such a “heartbeat” is detectable, at about six weeks, there is no fully formed heart—a complex organ—and, at six weeks, medicine does not even recognize the product of a pregnancy as a “fetus.” (It is still considered an embryo.) Even if there is a somehow meaningful “heartbeat,” we must ask what of it. A brain-dead adult can have a functioning heart yet still be, for all practical purposes, dead and useful only for organ harvesting. One’s heart doesn’t make one human. Neither does a liver or a kidney. Not even a brain makes one human; the aforementioned mouse has a brain. One might argue that an operative prefrontal cortex makes a fetus human, but its development is too late in gestation to satisfy anti-abortion partisans. Besides, babies born with serious brain defects are still considered human.

The Supreme Court has identified viability as the point at which we should draw the line after which abortion can, in most cases, be prohibited. Certainly, a viability criterion is more easily justified than say, the misnamed fetal heartbeat one. It is assumed that, at about 24 weeks, the fetus could, in principle, survive outside the womb and grow to become an actual person. This is a criterion that rests both on fetal development and current medical technology. Although someday we may have artificial wombs that allow a days-old embryo to grow into a baby, the 24-week viability criterion isn’t going to change much any time soon. I will have more to say about the viability test below. I believe that this dividing line, too, is flawed.

Next, consider arguments that restricting abortions somehow protects women or advances some other public good. These arguments are mostly ill-informed or insincere. The idea that prohibiting abortion access somehow “protects” women is, at best, paternalistic and infantilizing. It is sometimes argued, for example, that women who have had abortions experience depression, from which they must be protected. Actually, elation is a more likely psychological response, as an abortion can prevent the derailing of a woman’s personal or work life. According to the Guttmacher Institute, one in four women will have had an abortion by the age of 45, but there is no empirical evidence of widespread female depression resulting from those abortions. Postpartum depression, on the other hand, is common. Yet Republican lawmakers are fond of saying that restrictions on abortion are in the interest of women without explaining exactly in what respect that is true. But having an abortion entails less risk than carrying a pregnancy to term. True, women can make poor choices, but isn’t the right to make choices, whether wise or foolish, what freedom is all about? Even men make poor choices regarding their bodies, and they do so largely without governmental interference.

What, in fact, is the interest of the state in preventing abortions? Is there an urgent need to increase the population? If so, the task could be accomplished sooner by increasing immigration. Do people want to ensure that the genes of men are propagated into the gene pool? That seems unlikely. The women most often prevented from having abortions are poor and black. Do the authors of anti-abortion legislation want to increase the population of black babies? (It is absurd to think so, and they would be astounded and repulsed by the suggestion.) Do they want to grow the number of children with devastating abnormalities by preventing the early abortion of nature’s mistakes? Enquiring minds want to know.

Others argue, improbably, that abortions are really unnecessary. They say, for instance, that decades ago, abortions helped women escape the restrictions of wife, mother, and housewife and assume a liberated position in the workplace outside the home. Women have now achieved parity with men and no longer require the crutch of abortion. This argument is every bit as absurd as it sounds. Almost any woman can explain how she has failed to achieve equality with men either at home or in the workplace. Access to abortion surely assisted the liberation of women such as it is, but it is still needed for all the reasons it has always been needed.

An even more outrageous argument that abortions are unnecessary was advanced by Supreme Court Justice Amy Coney Barrett in the December 1 oral arguments before the court in the case of Dobbs v. Jackson Women’s Health Organization. Justice Barrett suggested that safe harbor laws make abortions unnecessary. Such laws allow a newborn to be surrendered at some specified public place (a fire station or hospital, for example) without penalty and without incurring any future responsibility for the child. In her view, a pregnancy can be carried to term, after which it will magically be as though it never happened. Apparently, Justice Barrett does not live in the same world as the rest of us. Pregnancy involves many inconveniences and dangers, which is why someone might want to terminate one in the first place. Moreover, giving up a child for adoption, even when done willingly and with advanced planning, is often psychologically damaging to both mother and child. Justice Barrett seems insensitive to the very real consequences of her proposal. Unfortunately, her status as a mother of both natural-born and adopted children may encourage people to accept her perverted logic.

All those who want to outlaw abortion speak in terms of a mother and her baby. “Baby” may not be a medically proper designation, but it is convenient terminology for illustrating an important concept. Prohibiting abortion of the baby forces one person to make a sacrifice for the benefit of another. This is an alien legal concept in U.S. law. No one is required to come to the aid of another unless that person is in a special occupation for which giving aid is a requirement. A firefighter, for example, is required to attempt to rescue someone from a burning building, an obligation that has been freely assumed. A bystander has no such obligation. In fact, forcing a woman to become or remain pregnant appears to be a crime against nature and, in some circumstances, a war crime under the Geneva Convention.

The Supreme Court adopted the viability dividing line as a compromise between those who would ban all abortions and those who would allow all abortions. The advantage of viability to the court was that it is a more-or-less definite criterion and the point at which, in some sense, the fetus could become an actual, functioning human being. Arguably, 24 weeks gives the mother ample time to choose to have an abortion, at least in most cases. But not in all cases. Fatal fetal abnormalities could be discovered beyond the 24-week cutoff or circumstances could prevent obtaining an abortion before viability.

From another point of view, viability is an illusory deadline. Although a 24-week-old fetus might be able to survive outside the womb, it is unlikely to be healthy or to enjoy anything like a normal life. More importantly, the viability criterion assumes a fetus removed from the mother. A pregnant woman desiring a post-viability abortion isn’t going to let anyone remove her fetus to prove viability in fact. If we have to have a cutoff point for most abortions, viability has its merits, but it isn’t quite what it seems to be.

 

Supreme Court Actions

In Roe in 1973, the Supreme Court articulated a constitutional right to an abortion. In Casey in 1992, the court affirmed that right but allowed states to regulate abortions so long as they did not create an “undue burden” on those seeking the procedure. State legislatures eagerly availed themselves of the opening provided by the court, having discovered that the prohibition of creating an undue burden for women was hardly an undue burden for them. They invented waiting periods, mandatory presentation of anti-abortion propaganda, parental-permission requirements for underage girls, and extraneous requirements for clinic architecture and clinic doctors. And they put restrictions on reasons for seeking abortions.

The various gratuitous regulations invented by Republican legislatures have resulted in the closure of many clinics, usually depriving women not only of abortion services but of other gynecological services as well. Women seeking abortions have faced long trips to faraway clinics as the number of clinics dwindled, and they often had to spend two or more days away from home. Not all the legislative attempts to make getting an abortion burdensome have survived court challenges, but, over the years, the right to obtain an abortion has become less and less substantive.

The addition of three Supreme Court justices nominated by President Donald Trump further emboldened Republican legislatures. Abortion opponents saw a high court newly stacked with sympathetic justices. Mississippi not only passed a law prohibiting abortions after 15 weeks but also invited the justices to overrule Roe and Casey. Texas has gone further, with its 6-week cutoff, vigilante enforcement, and prohibition of medicinal abortions. Court-watchers expect that the Mississippi and Texas laws are likely to be deemed lawful by the court and the nationwide right to an abortion will be extinguished.

Supreme Court decisions that have limited individual rights are prominent on lists of the worst ever decisions of the court. Think Dred Scott v. Sanford, Plessy v. Ferguson, and Korematsu v. United States, among others. Never has the court affirmed a significant right only to repudiate it decades later. We are likely to see the court in its current term add to the list of its worst decisions should it overturn Roe, as many will expect it will.

 

Additional Considerations

Restrictions on abortions have placed a special burden on poor and minority women. Not only have state legislatures placed barriers to their exercising their supposed right, but the federal government has been prevented from paying for abortions under Medicaid. Middle- and upper-class women have always had the option of traveling to wherever necessary to obtain abortions. Not everyone is equal in their access to abortion services because of their economic status.

It is tragic that anti-abortion activists and legislators have shown such sympathy for what they have called the “unborn,” yet show hardly any empathy for already-born women facing difficult life choices. They revel in a “fetal heartbeat” while seeming indifferent to the fact that the pregnant woman has a heartbeat, too.

It is appalling that so many Americans are willing to require women to carry to term unwanted children and children resulting from rape or incest. A friend of mine who was an RN in pre-Roe days told me of a 14-year-old who had been impregnated by her father. She wrote, “After a traumatic birth she ended up in a psych unit.” There are thousands of such pre-Roe stories, many of which have endings even less happy. What is the point of creating such tragedies? Is not requiring that all pregnancies be carried to term a kind of slavery, in which the state commandeers unwilling citizens, endangering and upending their lives to achieve some ill-conceived public service? A woman is more than her uterus, and recruiting her uterus against her will is an unspeakable evil. Adult males can control their own bodies; should not adult females have the same right? Isn’t this what the Fourteenth Amendment is all about? It is ironic that many countries, even those with largely Roman Catholic citizens, are liberalizing access to abortion at a time when the United States is doing the opposite.

Speaking of the Fourteenth Amendment, it is significant that that amendment begins as follows:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

“Unborn children” are, by the definition of citizenship in the amendment, not citizens at all. Even calling them “persons” would not make them citizens. They have no free will to act in the world, which is characteristic of actual persons. Efforts to make the products of pregnancy “persons” are nonsensical and have the potential to cause all sorts of legal mischief. Some such mischief is already apparent, as women have been prosecuted for “killing” a fetus by virtue of having had a normal miscarriage. It has often been argued in such cases that maternal behavior, such as drug use, caused the miscarriage. The extreme of declaring a fetus a person has the potential to make every miscarriage into a search for the method by which a mother “murdered her baby.” This would convert ordinary misfortunes into personal catastrophes. Of course, the ultimate motivation behind the movement to make the “unborn child” a person is to make abortions—all abortions—instances of “murder.”

As noted earlier, the entire anti-abortion movement rests upon the notion that the product of a pregnancy is a human being. This is not a logically necessary view. It is equally logical to regard an embryo or fetus as a part of a woman’s body and therefore not subject to state regulation. It is interior to her body and is nourished by it. Some have even seen a fetus as a kind of parasite, and I’m sure that reluctantly pregnant women might well view it as such. In either case, its disposition should be within the woman’s power to determine.

Declaring that fertilization creates a human being is risible and can only be justified by specific religious arguments. It is a concept held by a minority of a minority. Procreation is not an event but a process, of which fertilization is only a part, though surely a vital part.

 

The Fraught Future

Arguably, access to abortion has always been a human right. The Supreme Court that once declared it a constitutional right has allowed that right to become less and less reified. If the justices use the vehicle of Dobbs to declare that Roe was decided in error, that there is no such constitutional right, states will be able to regulate abortion as they see fit. If the court reverses Roe, abortion will instantly become illegal in many states due to their legislatures having passed so-call trigger laws. The scope of women’s health care will immediately be diminished.

Of course, the court may simply chip away at the right to abortion a little more, jettisoning the viability standard and replacing it with a 15-week standard or some other more slippery demarcation. Unless the Supreme Court simply declares the Mississippi law unconstitutional, an exceedingly unlikely outcome, women will be the losers.

The Republican- and Roman Catholic-dominated court actually has some incentive not to throw Roe overboard. A decision will come this summer or, less likely, somewhat earlier. Eliminating a constitutional right that women have enjoyed for nearly half a century is certain to have electoral consequences in the 2022 midterm elections. Abortion will become a more prominent campaign issue, perhaps even of paramount concern in the upcoming elections. What Republicans have seen as an opportunity to take back the House of Representatives, and perhaps even the Senate, could become a Democratic landslide. Some observers, however, do not believe that the backlash will be that significant.

Unfortunately, the right-wing justices seem indifferent to both their obligations to the law and to society at large. Republican-appointed justices repeatedly assert that their judicial opinions are not “political,” despite all indications to the contrary. The Catholic-dominated court has repeatedly chipped away at the traditional separation of church and state, elevating the freedoms of religious people above all other Constitution-protected freedoms. The court refused to stay Texas’s law SB 8 which is clearly unconstitutional until the court declares otherwise, ignoring both normal legal procedure and any social consequences of their inaction. And, of course, the court includes a justice clearly willing to do the bidding of the former president and who has a wife who played a significant role in subverting the peaceful transfer of presidential power.

The justices must consider whether eviscerating a well-established constitutional right will deal a grave blow to the already diminished reputation of the Supreme Court. After all, the court’s opinions are the law of the land because the people consider them to be such. But messing with Roe could diminish public acceptance of the court. Justice Sonia Sotomayor, in the oral arguments in Dobbs mentioned earlier, asked pointedly if the court could survive the “stench” that such a move would create “in the public perception that the Constitution and its reading are just political acts.”

Denying the existence of a right to privacy on which Roe was decided endangers other decisions of the Supreme Court over the years that have expanded sexual freedom: contraceptive use, same-sex activity and marriage, and the ability to marry outside one’s race. How much “settled law” is this court willing to un-settle should they overturn Roe?

Whatever the Supreme Court decides in Dobbs or possibly a case involving Texas’s SB 8, believers in women’s autonomy must step up their efforts to protect women and to send the message that religious extremists cannot be allowed to control this country. If access to abortion ceases to be recognized as a constitutional right, Congress, through legislation, can make it a statutory right throughout the country. If women do not have access to abortions everywhere, then only some women have control over their own bodies.

It is time for people to vote out of office legislators at both the state and federal levels that are clearly out of touch with the will of the people. Ultimately, we may need a constitutional amendment to protect the right to an abortion. In a rational nation, the choice to have an abortion should be made by the woman affected with the advice of her doctor, a clergyperson, or other trusted advisors. We should trust women and physicians to make reasonable decisions, not decisions constrained by statutes that cannot countenance all the factors relevant to such a life-changing (and often life-saving) choice.

Our country is not free if women are not free.

May 6, 2022

Vast Minority

I heard a brief item on the radio today. It concerned the Pittsburgh public schools. The reporter wanted to communicate the fact that most teachers in the Pittsburgh public schools are white. She wanted to emphasize, however, that the system has few teachers of color. She described the situation rather oddly, I thought: “Teachers of color are in the vast minority.”

“Vast minority,” really? The reporter clearly chose this locution by analogy to “vast majority.” But “vast” means great in size—a vast majority could not mean 51%, for example. I think the reporter was trying to say that there are very few teachers of color, many fewer than 49%. The minority of such teachers is not vast at all. She could have said that there is a vast lack of teachers of color. (This would be similar to the usually ironic phrase “plentiful lack.”) That would have been odd phrasing as well, but it would actually make some sense. The sentence as delivered makes no sense at all.


Update (5/9/2022): After hearing the report again, I revised the post to reflect the exact sentence the reporter used