Supreme Court and abortion

[HondurasKeiser]

And for a conservative critique of the way the solicitor for the State of Mississippi argued the case for the overturning of Roe & Casey. The always-fun-to-read, prof. Hadley Arkes has a mildly depressing take at First Things. For context, prof. Arkes is a Natural Law-yer, he has no truck with the Borkian/Scalian school of jurisprudence that espouses originalism, textualism and restraint.

...the redoubtable Scott Stewart, the solicitor general of Mississippi, was compelled to argue with one hand tied behind him. As smart and resilient a lawyer as he is, he was compelled to work within the standard forms of conservative jurisprudence, repeating the mantra of “text, structure and history.”...Hence Stewart’s response when Justice Thomas led with the question of whether the constitutional ground for the right to abortion rested on the notions of “privacy” and “autonomy.” The most apt, common-sense response would have been that marked by Lincoln and Aquinas: that there can never be a “right to do a wrong.” Whenever we consider privacy, autonomy, or “liberty,” we must ask whether they are put in the service of ends rightful or wrongful. No notion of privacy, autonomy, or liberty ever entailed a right to take an innocent human life. But Stewart, playing by the book, simply argued that these terms had not been recognized in our history or tradition: “each of those [claims] starts to become a step removed from what's provided in the Constitution. Yes, the Constitution does provide certain—protect certain aspects of privacy, of autonomy, and the like, but [this right] is not how we traditionally, this Court traditionally, does due process analysis.”

...but Chief Justice Roberts and Justice Alito pressed on the question of what gave that marker any moral significance. As Justice Alito said, if a woman has a right to rid herself of the pregnancy she believes to be encumbering her life, why would it make a difference if the child in the womb were larger and stronger? And on the other side, if the law protects human life, why should it not also protect the small life in the womb that has never been anything less than human from its first moments? There one came to the edge of the argument that should clear heads and dissolve perplexities on both sides: It cannot be tenable to say that any human being loses his claim to the protection of the law, or his standing as a rights-bearing being, when he suddenly becomes weak and infirm and needs the help of others. To deny that proposition is to back into nothing less than the Rule of the Strong or Might Makes Right. That argument runs back to texts old and widely taught, from classic philosophy and the Bible. It is unthinkable that the lawyers and judges on either side have never heard that classic teaching. The question then is why these accomplished people on either side feel constrained not to invoke this common-sense axiom of moral reasoning.

My own guess is that the conservative majority on the Court will find some way of sustaining the law in Mississippi. They may even summon the nerve to overturn Roe v. Wade altogether. But if so, it will confirm the worst clichés, believed by the left and resisted by the conservatives: that the reasoning of jurisprudence is essentially beside the point. For reasons of their own, the judges will do what they wish to do.

[temporal1]

J. Roberts .. but also does not want the Supreme Court to arouse the potential backlash ..

what is the point of law/courts if mob rule ultimately controls? other than expensive, time consuming optics.
not regarding this case, alone.

[RZehr]

J. Roberts .. but also does not want the Supreme Court to arouse the potential backlash ..

what is the point of law/courts if mob rule ultimately controls? other than expensive, time consuming optics.
not regarding this case, alone.

What was wrongfully established by the same Court amid much backlash, should be overturned by the same Court, backlash or no. Liberals can save their whining. They've enjoyed 50 years of abortion that was not made legal by vote or legislature, but by decree. So they can just have a seat.

[HondurasKeiser]

Over at the Times, Michelle Goldberg thinks abortion ought to be a fundamental human right because she had two wanted pregnancies and they really wreaked havoc on her body and imagine if she were poor and had been unable to receive the requisite cosmetic surgeries that were absolutely necessary for her sense of well-being:

These are also experiences that many women will never recover from. I have two very wanted kids, but both pregnancies changed my body for the worse, and I don’t mean just cosmetically. Luckily I’ve been able to spend thousands of dollars on physical therapy and bodywork to deal with the muscle and joint injuries that come from a weakened abdomen. Obviously not everyone can do that. And the injuries I’m describing are on the very mild side. Julie Rikelman, who argued against the Mississippi law, said it was 75 times more dangerous to give birth in Mississippi than to have a pre-viability abortion.

[Ken]

J. Roberts .. but also does not want the Supreme Court to arouse the potential backlash ..

what is the point of law/courts if mob rule ultimately controls? other than expensive, time consuming optics.
not regarding this case, alone.

What was wrongfully established by the same Court amid much backlash, should be overturned by the same Court, backlash or no. Liberals can save their whining. They've enjoyed 50 years of abortion that was not made legal by vote or legislature, but by decree. So they can just have a seat.

I think they were talking about electoral “backlash” and not some sort of 1/6 style mob rule insurrection where people storm the Supreme Court to try to shut it down. They should have the courage to vote their convictions and principles regardless of the “backlash”. A bunch of Democratic congressmen voted for the Affordable Care Act in 2012 knowing that there would be backlash and some of them lost their seats as a result. At least they voted their convictions. The Supreme Court got plenty of backlash in 1954 when they voted correctly to desegregate schools.

People who worry about “backlash” are acting on a political basis not their basic principles.

[Dan Z]

Over at the Times, Michelle Goldberg thinks abortion ought to be a fundamental human right because she had two wanted pregnancies and they really wreaked havoc on her body and imagine if she were poor and had been unable to receive the requisite cosmetic surgeries that were absolutely necessary for her sense of well-being:

These are also experiences that many women will never recover from. I have two very wanted kids, but both pregnancies changed my body for the worse, and I don’t mean just cosmetically. Luckily I’ve been able to spend thousands of dollars on physical therapy and bodywork to deal with the muscle and joint injuries that come from a weakened abdomen. Obviously not everyone can do that. And the injuries I’m describing are on the very mild side. Julie Rikelman, who argued against the Mississippi law, said it was 75 times more dangerous to give birth in Mississippi than to have a pre-viability abortion.

Shared this on another thread - Ross Douthat has written what I consider an excellent piece in Tuesday's NY Times framing some of the ethical and legal arguments against abortion. If you can get behind the NYTimes paywall, here it is.

If you are outside of the paywall, here is an excerpt:

At the core of our legal system, you will find a promise that human beings should be protected from lethal violence. That promise is made in different ways by the Constitution and the Declaration of Independence; it’s there in English common law, the Ten Commandments and the Universal Declaration of Human Rights. We dispute how the promise should be enforced, what penalties should be involved if it is broken and what crimes might deprive someone of the right to life. But the existence of the basic right, and a fundamental duty not to kill, is pretty close to bedrock.

There is no way to seriously deny that abortion is a form of killing. At a less advanced stage of scientific understanding, it was possible to believe that the embryo or fetus was somehow inert or vegetative until so-called quickening, months into pregnancy. But we now know the embryo is not merely a cell with potential, like a sperm or ovum, or a constituent part of human tissue, like a skin cell. Rather, a distinct human organism comes into existence at conception, and every stage of your biological life, from infancy and childhood to middle age and beyond, is part of a single continuous process that began when you were just a zygote.

We know from embryology, in other words, not Scripture or philosophy, that abortion kills a unique member of the species Homo sapiens, an act that in almost every other context is forbidden by the law.

This means that the affirmative case for abortion rights is inherently exceptionalist, demanding a suspension of a principle that prevails in practically every other case. This does not automatically tell against it; exceptions as well as rules are part of law. But it means that there is a burden of proof on the pro-choice side to explain why in this case taking another human life is acceptable, indeed a protected right itself.

[MaxPC]

Over at the Times, Michelle Goldberg thinks abortion ought to be a fundamental human right because she had two wanted pregnancies and they really wreaked havoc on her body and imagine if she were poor and had been unable to receive the requisite cosmetic surgeries that were absolutely necessary for her sense of well-being:

These are also experiences that many women will never recover from. I have two very wanted kids, but both pregnancies changed my body for the worse, and I don’t mean just cosmetically. Luckily I’ve been able to spend thousands of dollars on physical therapy and bodywork to deal with the muscle and joint injuries that come from a weakened abdomen. Obviously not everyone can do that. And the injuries I’m describing are on the very mild side. Julie Rikelman, who argued against the Mississippi law, said it was 75 times more dangerous to give birth in Mississippi than to have a pre-viability abortion.

Shared this on another thread - Ross Douthat has written what I consider an excellent piece in Tuesday's NY Times framing some of the ethical and legal arguments against abortion. If you can get behind the NYTimes paywall, here it is.

If you are outside of the paywall, here is an excerpt:

At the core of our legal system, you will find a promise that human beings should be protected from lethal violence. That promise is made in different ways by the Constitution and the Declaration of Independence; it’s there in English common law, the Ten Commandments and the Universal Declaration of Human Rights. We dispute how the promise should be enforced, what penalties should be involved if it is broken and what crimes might deprive someone of the right to life. But the existence of the basic right, and a fundamental duty not to kill, is pretty close to bedrock.

There is no way to seriously deny that abortion is a form of killing. At a less advanced stage of scientific understanding, it was possible to believe that the embryo or fetus was somehow inert or vegetative until so-called quickening, months into pregnancy. But we now know the embryo is not merely a cell with potential, like a sperm or ovum, or a constituent part of human tissue, like a skin cell. Rather, a distinct human organism comes into existence at conception, and every stage of your biological life, from infancy and childhood to middle age and beyond, is part of a single continuous process that began when you were just a zygote.

We know from embryology, in other words, not Scripture or philosophy, that abortion kills a unique member of the species Homo sapiens, an act that in almost every other context is forbidden by the law.

This means that the affirmative case for abortion rights is inherently exceptionalist, demanding a suspension of a principle that prevails in practically every other case. This does not automatically tell against it; exceptions as well as rules are part of law. But it means that there is a burden of proof on the pro-choice side to explain why in this case taking another human life is acceptable, indeed a protected right itself.

Nicely said. It rather sinks that ship of permitting abortion up to and beyond the point of viability.

[Josh]

One of the fascinating things about the left is that they want to criminalise self defence (outlaw guns for self defence; prosecute people who engage in self defence for murder, and so on) yet they also think it's a sacred human right to murder an unborn child right up until seconds before it is born.

It is probably the most enduring argument for the moral illegitimacy of the left

[Grace]

Abortion rates have declined, except within the black community and presently black women have highest abortion rates. That means that "black lives really don't matter" for the pro choice crowd. Add to that Margaret Sanger, founder of Planned Parenthood, had a vision for black people and that vision is being realized. At one point she said, “We don’t want the word to go out that we want to exterminate the Negro population”.

[Ken]

Abortion rates have declined, except within the black community and presently black women have highest abortion rates. That means that "black lives really don't matter" for the pro choice crowd. Add to that Margaret Sanger, founder of Planned Parenthood, had a vision for black people and that vision is being realized. At one point she said, “We don’t want the word to go out that we want to exterminate the Negro population”.

That actually isn't true. Abortion rates have fallen among all groups within the US and have actually fallen fastest within the black community. Although they are still higher than among the white community. Mostly this is thought to be related to poverty. I won't bother you with charts and graphs to make the point. You can look them up yourself.