The Supreme Court is considering whether to overturn the standing decisions from Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). The majority opinions in those cases guaranteed … um, actually, quite little?
Soon, those opinions might guarantee even less!
Justice Sonia Sotomayor is worried that the Supreme Court might lose its aura of legitimacy.
Justice Sotomayor said, “Will this institution survive the stench that [overturning Roe v. Wade would create] in the public perception that the Constitution and its readings are just political acts? I don’t see how it is possible.”
This is actually a major reason why Roe v. Wade wasn’t overturned previously. In a recent essay on Planned Parenthood v. Casey, ACLU legal director David Cole writes that “As the three then-recently Republican-appointed justices … warned in 1992, overruling Roe would do ‘profound and unnecessary damage to the Court’s legitimacy and to the Nation’s commitment to the rule of law.’ That is only more true today.”
And, look: I’m pro-choice. I would prefer for anti-abortion laws like those recently enacted in Texas and Mississippi to be revoked.
But also: the idea that our Supreme Court might lose some of its power makes me quite pleased!
In our country, there are ostensibly three equal branches of government to balance each other.
Which sounds like a nifty design! Barstools often have three legs because any three points define a plane (unless they’re all on the same line), so three-legged stools are rarely tippy. Quite helpful when the sitter might be tipsy!
But something’s gone wrong with our government.
The recently-ritualized filibusterer system of our legislative branch that allows any proposal to be passively smothered, often by senators who represent fewer people than live in single neighborhoods of major cities. The post-9/11 domestic spying and drone strike assassinations from our executive branch. These are strange aberrations!
The worst offender, though, is probably our judiciary. Over many years, our Supreme Court justices have steadily commandeered more power, and the system is untenable.
Unfortunately, our Supreme Court justices are incompetent.
This isn’t really their fault!
And I happen to think that several of them are clever, kind-hearted people. I really liked when Justice Sotomayor’s minority opinion for Utah v. Strieff included a reading list to help people who hadn’t noticed the lingering ramifications of institutional racism in our country.
That was grand!
But for our Supreme Court justices to form meaningful opinions about the whole range of cases that come before them, they should understand computers, artificial intelligence, psychology, sociology, economics, biology, medicine … and, they don’t.
To be nominated for a seat on the Supreme Court, a person instead needs to have specialized in our country’s adversarial system of law. Which means, due to time constraints, that they probably won’t have an adequate understanding of many vital subjects.
Worse, the one subject that they did specialize in – adversarial law – isn’t even helpful! Immersion in this style of thought probably makes people less suited to serve on the Supreme Court. As law professor Sarah A. Seo wrote in a recent essay on public defenders, “Adversarialism is not inherent to justice – it’s simply one way of administering it.”
Even if the adversarial arguments mattered – if, for instance, we lived in an alternate universe where the judges were such flexibly-minded people that they allowed themselves to be persuaded in court, that we couldn’t predict how they were going to vote well before any arguments had been presented – the idea of “justice” arising from competition instead of justice by collaboration is a foolish way to run a country.
Often, people refer to Roe v. Wade in shorthand, suggesting that the decision guarantees a right to privacy, perhaps, or more specifically a right to abortion.
Instead, the majority opinion for Roe v. Wade says that “Though the State cannot override [the right to privacy, including a woman’s qualified right to terminate her pregnancy], it has legitimate interests in protecting both the pregnant woman’s health and the potentiality of human life, each of which interests grows and reaches a ‘compelling’ point at various stages of the woman’s approach to term.”
There are two conflicting rights, and the majority opinion is proposing a guideline for their balance. This is quite common. We balance people’s privacy against the state’s interest in preventing crime. We balance manufacturers’ desire to pollute with other people’s desire to breathe clean air or drink clean water.
In Roe v. Wade, the justices were balancing women’s bodily autonomy against the state’s interest in protecting the health of possible future citizens.
The justices concluded that: “For the stage subsequent to [fetal] viability the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”
When conservative commentators describe Roe v. Wade as a terrible ruling, I’m inclined to agree with them.
Yes, the three new Supreme Court justices – the stolen seat, the attempted rapist, & the hypocritical election’s-eve appointment – would like to overturn Roe v. Wade. But they hardly even need to! The existing opinion already does so little to protect women’s rights!
A large section of the ruling for Roe v. Wade discusses ancient attitudes toward abortion.
This discussion is markedly incomplete. Supreme Court justices simply don’t know enough to make their rulings! And there’s not a great solution to this, since very few possible groupings of nine people would include enough expertise to handle all the cases on a year’s Supreme Court docket.
Abortion has long been a common practice – healers and midwives in many cultures knew which local plants were arbotifacients. And any discussion of ancient attitudes toward abortion should also discuss infanticide.
Infanticide was common during recorded history. Based on studies of surviving hunter-gatherer cultures, we also have reason to suspect that infanticide was even more common in our species’s prehistory. In relatively recent times, if a baby was carried to term and then given up for adoption – perhaps left upon the doorstep or a church or monastery – there was significant risk of death. Amid high childhood mortality, a baby separated from the mother would face especially grim odds.
Compared to other primates, human mothers form emotional bonds to a child relatively late in development. Among our evolutionary cousins, it’s rare for a mother to allow any individual (not the baby’s father, not her own mother, not her other children) to even touch her baby. A full year might pass before the mother could bear the sight of her baby in another caregiver’s arms.
There are huge benefits that human mothers are less protective – shared child-rearing cements trust between adults, allows for our babies to be born earlier in biological development (essential given the size of our brains!), and leads to more attentive lifetime care.
Plus, this evolutionary history has made human babies so cute! Our offspring wouldn’t giggle and coo – behaviors that delight a potential caregiver – if they relied only upon irrevocable maternal love in order to survive. Chimpanzees are born cute – in their first few moments, they need to delight their mothers – but their tendency to giggle or mirror facial expressions fades within the first week or so. Unlike human babies, they aren’t constantly prepared to woo a new adult.
But human delay in attachment also made abortion and infanticide more acceptable to our species. In many hunter-gatherer societies, any child who could not be cared for would be abandoned. Other great apes are actually far more likely to care for a developmentally-disabled child than are human hunter gatherers.
In many societies, personhood wasn’t attained until age five or six, at which time a naming ceremony would be held. It was considered bad luck to name a child sooner, or to feel too attached before that date.
Of course, most families probably still did feel attached. There can be a stark difference between private affection and public nonchalance, a play act to ward off bad luck.
In terms of the rights at stake in Roe v. Wade, though, all these historical considerations are mostly irrelevant. Yes, that’s the science – findings from nature. But nature isn’t good or bad. Nature isn’t ethical. The natural world simply is, whereas ethics demands that we think about how the world should be. Reading the majority opinion for Roe v. Wade, it seems like these topics were introduced only to make the conclusion seem scientific or better reasoned.
In the end, the majority opinion is based solely on medical technology: the State can ban abortion at the age when a baby could survive outside a woman’s body.
Not would. And certainly not will.
“For the stage subsequent to viability the State … may proscribe abortion … “
In Sex Robots and Vegan Meat, journalist Jenny Kleeman investigates several efforts to construct an artificial womb.
In an age when being a good parent means being as attentive as possible even before birth, we want better access to the babies growing inside pregnant women, better ways of measuring them and putting them under surveillance, so we can do the best for them even before they enter the world. Women’s bodies are almost getting in the way.
Ultrasound images show how much female bodies are already seen as vestigial in reproductive medicine.
“I’ve been arguing for years, don’t show pictures of fucking developing fetuses unless you show the entire woman’s body,” [says Soraya Chemaly.]
“I understand people getting pregnant and being excited, but I’m the terrible feminist killjoy; I’m like, ‘Oh, that’s nice, why don’t we just make it bigger?’ Ultrasound was very deliberately developed to show the fetus as though it were a planet in a void, in a vacuum, in a container, in a jar. A wallpaper of blackness around it. It completely erases the woman whose body is generative.”
For a human baby to be born, a parent must make an enormous gift. Feeding and protecting and creating the gestating fetus over many months.
Currently, there’s no other way.
Currently, it’s impossible to combine a sperm cell and an egg cell in the laboratory, create an embryo, then provide the necessary nutrients and environment for that embryo to develop into a fetus, a baby, a child.
This would be a challenging project!
But not impossible.
Researchers will eventually be able to create a viable human child this way.
An act that would, per Roe v. Wade, instantly erase women’s rights.
Maybe this experiment would cost hundreds of millions of dollars. So what? For Supreme Court rulings, cost is irrelevant. They’ve made this clear in their decisions for many recent cases.
Our Supreme Court decided that anonymously-chartered corporations have as much right to free speech as individuals – as though they weren’t already privileged with more speech, since wealth can be used to purchase expensive advertisements, think tanks, unscrupulous academics.
Our Supreme Court decided that the police can legitimately spy on you with any technologies that are publicly available, even if these technologies – like infrared cameras to visualize your body through the walls of your home, or telescoping lenses to peer into your windows from a distance, or a steady helicopter to linger overhead and watch you from unexpected angles – are far outside the budgets (and therefore expectations) of most private citizens.
It’s quite convenient that the justices so often fail to notice people’s wealth! (Or lack thereof.) Abortion laws were never really intended to target wealthy people, anyway. Wealthy people could either travel out of state or pay off a doctor to certify that an abortion met “appropriate medical judgment for the preservation of the life or health of the mother.”
If researchers spent hundreds of millions of dollars to nurture one embryo into a viable human baby – in a laboratory anywhere around the world – then the principle of fetal viability cited in Roe v. Wade would allow states to outlaw all abortion. Even though the material facts of women’s lives would be unchanged.
This is, after all, the problem with trying to slap scientific justifications onto a philosophical argument. Whether or not women should have bodily autonomy is a philosophical question. I think that they should. Our steadily increasing technological prowess shouldn’t change that.
Header image by Dwain Currier.