Attribution: Charles Edward Miller from Chicago, United States, CC BY-SA 2.0, via Wikimedia Commons
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Featuring the Fabulous Dadbots: Mark M., Mark O., Dave S., Dennis C., Paul C., and Geoff Carter
I recently was answering an innocent worker survey. The first question asked for my gender and was very pc, providing about a dozen options, including prefer not to say or other. But the sheer number was news to me. It included ten choices, including transgender, two spirit, agender, cisgender man or woman, genderfluid, questioning, and more…. Yikes.
The second question was multiple choice asking who, among the F.D.A., the Holy See, the House of Representatives, the International Court of Justice, or The Alabama Supreme Court, (it was Alabama) who ruled frozen embryos were people. Here’s the quote affirming the decision from one of our esteemed pillars of justice, Chief Justice Parker, broadening his pillar. Court. “Even before birth, all human beings have the image of God, and their lives cannot be destroyed without effacing his glory,” Chief Justice Tom Parker
Had to re-read the first amendment…
Dave S.
That “gender identity” question… it’s a joke, right? “Two-spirit”?
I also have looked, and have not been able to find any references to a “holy God” in my pocket Constitution. But I’m not a legal scholar, so what do I know?
Interestingly, resistance hero Nikki Haley weighed in on that decision.
“I mean, I think embryos, to me, are babies,” Haley said during a pull-aside interview with NBC News as she described that she used artificial insemination to have her son, a different process than in vitro fertilization (IVF).
“I had artificial insemination. That’s how I had my son. So, when you look at, one thing is to save sperm or to save eggs. But when you talk about an embryo, you are talking about, to me, that’s a life. So, I do see where that’s coming from when they talk about that,” she added.
(Haley Says ‘Embryos, to Me, Are Babies,’ in Response to Alabama Court Ruling –NY Times)
She also claimed that she did not agree with the Alabama court ruling and is very concerned about the closure of IVF clinics. She has an uncanny ability to take ALL sides of any abortion-related argument!
Mark M.
I’m opting for the write-in option: bored-with-it-all postgender bending boomer. Please add that as an official category on next month’s sensitivity outreach questionnaire.
Tricky Nikki. Even if the Orange One originated that moniker, it seems like a perfect fit.
It seems the Trump campaign floated a trial balloon of an abortion policy position. Legal up to 16 weeks, with exceptions for incest, woman’s health risk, etc… I asked my wife who is a lifelong liberal, lapsed Christian, former women’s healthcare provider, oh, and a woman herself, what she thought of this policy. To my surprise, she said it seems quite reasonable. If her opinion is typical of the “all-important suburban female swing voter”, that would neutralize what the Dems consider their trump card in the upcoming election (no pun intended).
Whatcha all think?
Mark O
You are married to a WOMAN? Isn’t that kind of rare, these days? That needs to be called out in some kind of questionnaire .
I think that any call for a NATIONAL ban on abortion will be met with fire & fury, and will not be well received by the suburban soccer moms. (That’s what we used to call them, at least before the Angry White Males came into vogue.)
NATIONAL ban is very scary. It means that the daughters of the Karens and Amys and Katherines of our leafy burbs would no longer be able to go to New York or Massachusetts or the Chicago suburbs to get an abortion. It would require a foreign country!
From a health care perspective (which of course is totally secondary to our political concerns), anything less than 20 weeks is no good. The 20 week scan is where they find many of the scary and life threatening birth defects. This doesn’t fit in a bumper sticker and therefore probably is not salient politically.
Trump is making two mistakes here. One, even discussing allowing abortions up to 16 weeks is a betrayal of his shock troops. Not good for him. But even worse…. the compromise involved makes him into that most reviled of all creatures: a POLITICIAN! It ruins his brand.
Mark M.
This calls for a thought experiment (for those afflicted with that tendency). What exactly should pro-choice advocates advocate for today in terms of actual support of abortion rights (as opposed to election campaign ammunition)? With the Supreme Court overturn of Roe v. Wade, many of us bemoaned the fact that Roe had never been codified into law over the many decades since the initial Roe decision. The (seemingly) obvious solution to this crisis seemed to be to push for codifying abortion rights at the national level. But what does that mean? Codifying a right into law means actually passing a law, a law containing actual words that spell out the subjects and objects and conditions and enforcement mechanisms and all that good stuff. Codifying Roe could never mean that the Federal government simply declares “women have a right to choose”, or “government hands off our bodies”, or “it’s a matter between a woman and her doctor”. Those are proclamations, not laws. A law would state that a woman has or does not have a right to choose an abortion, under certain conditions. A maximalist would say there can be no conditions, period. If you think both houses of Congress and the President would pass a bill allowing full term babies that happen to still be in the womb to be killed, you’re delusional. Almost nobody thinks that is OK. Most people are resistant to 3rd trimester abortions. If public opinion has any impact on our lawmakers, some sort of compromise would have to be reached. Pick a number: 16 weeks, 20 weeks, 24 weeks. If pro-choice advocates are going to argue that any compromise equates to a federal abortion ban, we are just left with the status quo, and the whole idea of codifying Roe was just a long running joke.
The other option is to leave these decisions to the states, which is the status quo, which nobody seems to favor, on either side of the debate. One reason I hate the status quo is that it perpetuates the debate on the subject as an endless culture war. An endless culture war that pushes all the crises that I consider more existential, like actual military wars, economic justice, climate and environmental issues, onto the back burner. Instead we can chatter and make jokes about freezers full of babies in Alabama. I personally don’t give a flying fuck about court rulings in Alabama. It might as well be the Supreme Court of Neptune!
I’m sure I’m missing something here. What is it?
MarkO
The important question Rochester raised is should there be a codification of Roe in federal law, and if so, what form should it take?
I heard or read a legal analysis once on this topic, and it made a strong impression on me. Not being a constitutional lawyer (yet), I can’t vouch for this 100%. But it makes sense to me.
The argument is that NEITHER a Federal BAN nor a Federal ALLOWING of abortion is constitutional. Why is that? Well, each of the 50 states has its own set of criminal statutes. Every state has laws against murder, rape, robbery, etc. If you kill a fellow Wisconsinite, it’s not a federal crime. It’s a violation of state statutes, and you are tried by the state.
Of course, there ARE such things as Federal crimes. But these typically involve crimes against the Federal government (mail fraud, securities fraud) or assaults upon Federal officials (shooting at an FBI agent or your mailman). I think that bank robberies are often considered federal crimes, because the banks are federally chartered.
Given this backdrop… the State of Wisconsin can make abortion 100% illegal from the moment of conception. That would be in the Wisconsin criminal statutes. Twenty years of hard labor for the doctor, and counseling for the woman. The Federal government can’t do a damn thing about that. Abortion is no longer protected by the Federal Constitution (since the Dobbs decision). So no Federal law can make it legal in all 50 states. The states retain their powers.
So… how did Roe v Wade make abortion legal on a nationwide basis? Because it was a constitutional interpretation. It had the impact of a constitutional amendment. No state can enact a law that violates the US Constitution.
Similarly, under this logic, a Federal law banning abortion cannot supersede a state law. I think. So even if Mike Johnson and the Republicans ram through a ban, the states can ignore that. You already see this with drugs. Marijuana is still a controlled substance at the Federal level, but multiple states have made it legal.
The most practical thing to protect abortion rights nationwide would be a Constitutional amendment, which would contain the vague, unspecific language that MarkO mentioned, to legalize it. This would never be ratified by two-thirds of the states. Just as an Amendment banning it would not either. Unless we really turn into the Republic of Gilead.
Interestingly, Ohio just passed an amendment to ITS constitution protecting the right to an abortion. I believe that it’s pretty vague and proclamation adjacent. But it gives cover to doctors and hospitals and clinics–they won’t have to worry about being prosecuted.
My own personal belief is that “viability” is a good cutoff. Once the fetus is viable and can likely survive outside the womb, I think that the government’s interest in preserving its life outweighs the rights of the woman. Subject to caveats and exceptions (nonviable fetus; rape, incest). Harry Blackmun, who wrote Roe, got it right in 1972.
This is one culture war that is going to continue! Ugh.
In closing. This is one more shoe dropping that puts Trump and the Republicans on the back foot (mixing my foot metaphors here). They are currently scrambling to bellow their love and admiration for all things IVF! Just one more abortion-related controversy that is a wind at the back of the Ancient Mariner, Joe Biden.
Mark M.
Thanks for correcting my reply distribution oops Mark. The constitutionality angle is really interesting. It’s amazing that Roe v. Wade held up for (50) years given there’s nothing in the Constitution about abortion and nothing specific about privacy rights either, given the Roe ruling was based on violation of privacy rights that can only be inferred from various clauses in the Constitution. The flimsiness of the Roe ruling is why I’ve heard the cry to codify Roe for decades but apparently that was all empty jibber jabber (highly technical legalese). Only a constitutional amendment could enshrine such rights or restrictions on a national level and that ain’t happening. I guess we’ll have to wait a generation for the next liberal SCOTUS and maybe they can overturn Dobbs.
If nothing can happen at the federal level regarding abortion rights, one wouldn’t think it would be much of an issue in the Presidential election. There’s the possibility (maybe) of replacing a Supreme Court justice which could move the timeline for action up or back a few years far off in the distance, but that doesn’t seem super motivating. I would think abortion would be a more issue for state and local elections. Increased turnout for down ballot races could help the top of the Demo ticket I suppose.
MarkO
Tons of great insights from both Ms. Good thing RoJo doesn’t read this…he’d be lost. So true the black hole this issue is depleting energy (and funding…and rational thinking and compromise…and…) on issues like:
- Immigration
- Affordable housing
- Insurance for poor, let alone affordable insurance.
- Education/early childcare.
- Ukraine, carbon….various despots…
- Health Care—not in absurd condition—Obama’s one achievement, but far from done given drug prices, accessibility, education, medicare…
Check me on this, but I remain convinced that the value of abortion is first to keep unwanted children from entering the world w/out a chance and compounding the problems for their mothers. (Fathers too, but far less often, methinks). Second: All the other medical conditions. But the primary reason is essentially stop gap—to end the cycle of poverty. In the ghetto—Elvis–is as true today as it was when it came out. Young men and women, sans a father, sans some sort of home structure, are going to make babies, indiscriminately and walk away from the responsibility. So from this viewpoint, the week’s debate is important, but secondary to the triage at hand.
I have a conservative friend who brought an anal sex book to the attention of her school library—in a southern state. She did not think it appropriate for her 14 yr olds twin boys. She was successful in getting it removed. Seems naïve when I’m told there were 14 freshman girls pregnant at our high school. Freshman are 13, some 14.
-D.
RE Roe. As MO points out, it was on shaky ground as far as constitutional law. Ruth Bader Ginsberg pointed that out herself! And conservatives got a lot of mileage out of that over the years.
Dave, your take on the need for abortion rights is spot on. Libs do love to bring the medical needs front and center (I’m referring to fatal birth defects and threats to the mother’s health). (And pro-life politicians , such as in Texas, are currently making this a very easy argument.). But in reality those health situations are far less common than the simple desire of women NOT to have this baby, for all the social reasons you outline. (Factoid: a majority of women who get abortions are MOTHERS already.)
The bottom line for me is: Who gets to decide? The bishop? The minister? The politician? The anti-abortion activists? In legal terminology…. They simply don’t have “standing”.
But that leaves me standing four square behind people who, irresponsibly and/or thoughtlessly, use abortion as simple birth control. Can’t say I love that either. …The problem is, this kind of pearl clutching opens one up to the slings and arrows of the pro-embryo true believers. In this culture war, show no weakness!
Does the issue detract from attention needed for other issues? Sure. But that’s the nature of many issues. And we can’t seriously believe that, if not for those dern Russians in Ukraine, we could have solved.world hunger?
Mark M.
Good points about state versus federal. Legal weed is a good case in point. While states can have their own laws on criminality and distribution and taxing and whatnot, the feds still have some control under the interstate commerce clause, which is why–at least up to now–dispensaries cannot deposit money in federally protected bank accounts.
Legally speaking (he speculated out of his vacuum of legal knowledge), laws about the legality of abortion are determined by states, If there was a federal law outlawing it (which I don’t think Americans would stand still for), there would probably be a little wiggle room for states to interpret it, but I think this going to be a deadly issue for Republicans. It’s one of those laws no one except the zealots want. The constitutional issue underlying Roe -v- Wade was the right to privacy. If, as Alabama has done, the Supreme Court recognizes the fetus as a human, abortion is done.
To Mark O., I think people were generally pretty satisfied with reproduction rights in the pre-Dobbs world. Abortions were accessible, safe, and affordable. But that’s water under the bridge.
A note to film fans: One of the short live-action films nominated for an Academy this year is “Red, White, and Blue”. It speaks brilliantly to this topic.
G