There is only one major policy or political decision about which I have changed my mind in the course of my life, and that is abortion. Moving from a Liberal, from Robert Kennedy, to a centrist, like Obama and Biden, doesn’t count because it was just recalibrating the spectrum and remaining rooted in the New Deal philosophy that big government and entitlements were a good thing. (Biden seems radical because his legislative agenda is so ambitious but its principles of expanding entitlements is part of the long time Liberal agenda.) And I am still a believer of the principles of the Civil Rights Movement even if the generations since then have altered the way to proceed to a more equal union. And i did move from supporting Head Start to opposing it, always having always been skeptical, but mainly in response to the scientific reports showed that it didn’t work as the way to improve education, though I like Biden’s initiative to fund all children below five year olds because it means allowing women to go to work and let kids get away from baleful home circumstances. Abortion was the great change because I shifted from seeing a zygote as a human being to responding to social circumstances because my daughter went off to college and I assured her that I would give money and support and arrangements if she got into trouble despite my outspoken beliefs about abortion despite the opposing views in my Liberal circles because I didn’t want to be a hypocrite. If abortion would have been gppd enough for my daughter, then it should be available to any woman. The philosophical argument was replaced by the social argument that women alone took the burden of childbearing while men only provided insemination and so women had to decide now that medical science made abortion safe, because someone had to decide when to terminate pregnancies, however dubious I thought of the claim that women were always wise about making that decision. My position became and remains what Bill Clinton said, that abortion should be legal, safe and rare, and I still think so in that abortion is a bad thing, like an execution, but a necessary thing in some circumstances.
Nothing has changed in my mind because of the Supreme Court arguments to decide whether to overthrow Roe v. Wade and adopt the Mississippi rule that no abortion is allowed after fiveteen weeks. What I notice is that going to Harvard Law School or Yale Law School or even Notre Dame Law School scrambles the brain and makes people incapable of straightforward argumentation and substitute with that irrelevant or superficial or just confused arguments that are readily answered and so leave me with decisions that have no weight, only consequences, for better or worse, and so are akin to Brown v. Board of Education, which is also dubious as an argument, but which was definitely right because it was on the side of progress in that, after the Second World War, there was no way the United States could continue an aparteid system just as when South Africa instituted its attempt at legal aparteod in 1949. So let us deal with the rubbish of the reasons offered by the oral arguments a few days ago.
The main reason to abandon Roe v. Wade is that the times have changed since the decision was originally announced in 1973, Women are more independent than they were then in that they have the social support that will allow them to both pursue work and family and so there is no reason to do such a drastic step as aborting a fetus. They can get their children adopted or get day care centers to watch them while they go to work and society is willing to abide single mother families than had been the case previously. The lawyers opposed to Roe v. Wade, however, do not offer any empirical evidence to say whether people are more pleased with their predicaments or whether, in fact, the services proposed are in fact available. It is just their supposition based on a perception of what they regard as improvements. The same problem arose when Shelby County decided that the measures for preclearance of voting procedures were no longer required by southern states because they were not necessary because there had been so much progress on racial matters since the Voting Rights Act of 1965, also without evidence, just speculation about how the climate had changed. It turned out that restrictions on voting through legislative action were passed by southern states like Texas and Georgia, the new voting procedures previously subject to preclearance and the result likely to restrict Black voting, for example, by limiting access to places where ballots could be deposited in the urban areas where Black voters lived. It is dangerous to base a principle on a supposition of what judges say is just their sense of things or, moreover, on the basis of what will likely happen as a result of new decisions rather than on whether they follow a legal structure and the legal concepts as they evolve.
But whether the situation of how the life of women has evolved over the last fifty years has changed and seems a matter of speculation is not to the point, just an excuse for saying something changed so as to justify a change. Those considerations would be legislative matters and so dealt with in Congress, reordering the social structure so as to have weighed the advantages of women in the workplace as one consideration among many, rather than a constitutional issue which is of concern at the Supreme Court because it hinges on a matter of rights rather than more or less advantage. Roe v. Wade had argued that women had the right to abortion because their privacy about doing so was part of the penumbra of the constitution which is a fancy way of saying that the rights mentioned in the Constitution are not exhaustive but can be inferred from the spirit of the Constitution or out of general principles about human nature not previously stipulated. Casey said the right of abortion came out of the equal protection and due process clause of the Fourteenth Amendment, and so was also a right in that equality in this case meant that women had to be protected in their particular peculiar conditions. What will discredit this right if it is a right? Perhaps by saying that foetuses have rights, something never said before in the Constitution but perhaps in alignment with the old British custom that pregnant women will not be executed for the sake of the foetus, or perhaps because there is a national or societal interest in defending the next generation, just as happened when women were protected from dangerous work on the grounds that they were the carriers of the next generation and so their health, whether presently pregnant or not, was to be protected. Rights are not just conveniences and so should not be added or subtracted to the corpus of rights easily, though the extension of rights to include education and health care and gay marriage might seem to those opposed to it as frivolous rather than central features about human liberty.
Then there is the question of whether to overturn an established precedent, to violate stares decisis. Supposedly the principle is that established law occurs when people for generations have molded their lives in terms of that provision, and that would seem to be the case with abortion. Women can expect to have abortions for fifty years now if they feel the need to. Those who are opposed to Roe argue that there are clear precedents for overthrowing a precedent. Most particularly cited is Brown vs. Board of Education as overturning a fifty year precedent of Plessy vs. Ferguson, and the Attorney general of Mississippi is quick to involve that, however ironic that may be, given Mississippi’s history. But that is just one example. What are the principles or standards by which to decide that an established principle can be overthrown? Maybe there is a social revolution developing whereby racial segregation is even more deeply established as part of an aparteid system or else there has to be a new departure for race relations, however much it might have been preferred that the legislature should have made that decision. Better recognize that a revolution is going on than to delay it. The point of Brown vs. Board of Education was that something was happening that was irreversible. There was no supposition that in fifty years the United States would return to a segregated regime. This was a sea change. That might not be the case with reversing Roe v. Wade in that sentiments might shift back in the other direction and so might lead new justices to decide there really was such a right or else the issue had become bypassed through new methods of aborticides, this no longer a matter of right but a simple consumer preference.
That is all the more the case because the standards used to apply to acceptable and unacceptable forms of abortion have changed so much in the past fifty years. Then, women had to consult with their doctors; now, doctors do what the women want. Then, incest and rape were a reason for abortion, and pro-choie people would continue to except those because of the psychological damage of people who have to endure under those circumstances until the birth of their babies, pro-choice people more sympathetic to the mothers than to the foetuse in that a baby is a baby, from zygote on, whether or not it is the result of incest or rape. But the zygote standard is also questionable in that the material that emerges from a miscarriage is not named or buried or christened and that is long after the time of the zygote and so people recognize that there is a need to develop later points of the development of the foetus to divide whether those are to be aborted from those who are no longer to be aborted. Viability is less and less a standard because medical science can allow earlier and earlier premies to survive, though often with bad outcomes. Long ago, people said life began at quickening, but that is just an indicator of life being present, not it being a human being. Current pro-lifers will say when the heart beats or lungs develop, but that is an indication rather than an argument of what makes the foetus essentially a person. I might suggest that only people have consciousness because even advanced animal creatures like gorillas are not regarded as being murdered even if we have sympathy with the higher mammals. But we do not have a clear cut way of saying when a foetus becomes self aware. When it feels its mother’s heartbeat? When it rolls over in its mother’s womb? I don’t know. I am confused enough that the biological development of a foetus is so sui generis that I don’t have standards and so will let social decisions decide when to make the division, but this seems a matter of such moment that the Supreme Court has to make the decision. But they are not biologists or philosophers or even sociologists and so don’t have the equipment whereby they can muddle through to a decision but the authority does, nevertheless, reside with them and so should, at the least, seem reasonable and consistent, which is not what seems likely to happen this time around.
It is therefore no wonder that Justice Sotomayor is worried that the respect of the Court will be sullied if basic issues of rights change whenever there is a new set of justices. Something even more important than abortion is at stake. It is to take rights seriously, though I myself think that the Rubicon was crossed into becoming a political branch for a long time and so think that Sotomayor is naive to think otherwise, Supreme Court justices prone to thinking their reasons really matter when how far the supreme Court can do at leading public opinion too much is the real issue. A wise law professor once told me that you can look at law review articles to see the fine points of legal argumentation. A decision offered by the Court is a set of compromises and vague generalizations that will persuade supporting whatever is the brokered conclusion and no more than that though naive me somehow wants the Supreme Court to offer definitive and sufficient guidance about which direction the nation should go. After all, its power is that of persuasion rather than executive or legislative fiat.
The Conservative majority in the Supreme Court is likely to last for a long time. Breyer, a Liberal, is likely to leave first, and some of the Conservatives are quite young. The Court is therefore likely to continue to overturn the rights of Liberal status groups such as those of gender, race, and sexual orientation. It would therefore seem wise for Liberals to skirt those issues, as is the present case, where Biden is not going all out on voting rights and police violence, and instead emphasize the economic support statuses, such as providing for large and sustained child care credits and broader health care, where Biden may get his way in the next few months. The population seems to prefer economic improvements rather than the defense of human rights, and so Biden has to pursue his course. It will be up to the people to decide in the midterms whether his allegiance to holding his true course will result in a Democratic victory or whether distractions from that will damage him. The electorate at the moment is very finicky and so I can’t say.