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6/30/2022 0 Comments Rights and Wrongs
First off, if violation of My Body My Choice was the trigger, I figure these same people would have been feeling similarly lousy and distressed by the recent vaccine roll-outs and mask mandates. But they weren't. It seemed that their feelings were quite the opposite, actually. And another thing: The wording of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization totally supports the sentiment of My Body My Choice. So, I have to ask: What’s going on here? What’s all this fuss about? Why are people up in arms about Roe v. Wade getting squashed? I asked my wife, “Hey babe, I’m picking up on all this sad energy, and I’m a little confused about where it might be coming from. What’s the deal with this abortion thing?” Here’s what she said: “Just ask Jill.” * * * Jill is our liberal bellwether friend. She’s a grade school teacher. She’s super-smart. She has a big heart and the patience of a saint. Jill also mainlines Instagram, NPR and the nightly news – so she's decidedly in-the-know. It’s a wonder that Jill hasn’t cut us off by now. We ask her a shit-ton of questions all the time, and it must be kind of annoying for her, deep down. She’s indicated to me, more than once – in her gentle, loving way, of course – that her 5th graders know way more about the current state of world than I do. Nonetheless, I went ahead and asked her, “Hey, Jill, what's all this hoopla about the Supreme Court abortion thing?” “Seriously?” she replied. “Don’t you watch the news? You really need to start watching the news. Next time I see you, I’m gonna to set up a feed on your phone. It takes like five seconds.” “Ummm.” I dodged committing to that. Receiving news feeds on my phone is not my cup of tea. “Anyway. There’s a protest going on at the courthouse right now, at this very minute. I’d be down there myself, but I had to get Benny to the vet.” Benny is Jill’s pandemic puppy. “Pandemic puppy” is code for an untrained, spastic dog that’s annoying to most people. Benny goes to the vet a lot. “That’s what I’m talking about,” I said. “I read the Supreme Court’s decision and thought it sounded pretty good. I mean, it sounded pretty liberal, in a classical sense. Like people’s rights getting restored and all. So, I’m wondering what all the protesting is about. Why are so many people so upset?” “Are you kidding me?!” Jill was agitated with me now, I could tell. “You think what the Supreme Court did was liberal?! They banned abortions, for chrissakes! They’re attacking women’s rights. Human rights!” “Well…” I said, pausing for a moment. I wondered how to break it to her gently that abortions have, in fact, not been banned. Jill ignored my pause and continued. She took a deep breath and switched over to her calm, instructive teacher’s voice: “You see, banning abortions is a step backward for human rights. It’s horrifying and sad to see a half a century of hard-fought progress get flushed down the toilet in an instant. Getting an abortion is a private issue, a sacred issue. It’s a decision that only an individual can make, so, quite frankly, the Supreme Court can go straight to hell. That’s why we're upset.” * * * I think Jill may be speaking for a lot of people when she says all this. But there are parts of her reasoning that just don’t hold water. For one thing, abortions haven’t been banned by the Supreme Court. And for another thing … well … let me pause for a moment, take a deep breath of my own. I don’t really want to nitpick Jill’s reasoning. Instead, I’d like to use her final statement about why she’s upset as inspiration for a statement of my own about why I’m not upset. Here goes nothing. If anyone ever asks me why I’m not upset about the decision in the Dobbs v. Jackson Women’s Health Organization case, here’s what I just might say: Making laws about abortion, whether they be for or against it, is a step backward for human rights. Getting an abortion is a private issue, a sacred issue. It’s a decision that only an individual can make. Lawmakers and constituents who attempt to encroach upon the moral sovereignty of individuals can go straight to hell. Morality can’t be legislated, so I’m glad the Supreme Court is willing to admit to making a mistake 50 years ago in their Roe v. Wade decision. I know there’s only the slimmest chance that someone would ever ask me this. I get that. But I’d like to be prepared, just in case. Decisions, Decisions Interestingly, I don’t hear anyone talking about ‘Dobbs v. Jackson Women’s Health Organization’ or ‘Planned Parenthood v. Casey.’ All I’m hearing is ‘Roe v. Wade.’ I guess the names of these other cases just don’t have that catchy, monosyllabic, nightly-news-worthy zing that Roe v. Wade has. I’ll be the first to agree. Roe v. Wade sounds like a prize fight for the Heavyweight Championship of the World, for crying out loud. Eat your heart out, Rocky Balboa. Read it and weep, Clubber Lang. Anyway, if I’ve read and understood it correctly, the Supreme Court’s decision for Dobbs v. Jackson Women’s Health Organization basically says this: The Constitution of the United States does not confer a right to abortion. This means that the Supreme Court’s decisions in the previous cases called Roe v. Wade and Planned Parenthood v. Casey are hereby overruled, and the authority to regulate abortion is returned to the people and their elected representatives. I think I got this summary right, but please check out the full opinion for yourself here and correct me if I got something wrong. At 213 pages, the full opinion is a pretty long, boring read. So, brace yourself, pour yourself a cup of tea, sit someplace comfortable – but not so comfortable that you fall asleep. Anyway: Taking a step back and looking at this summary, I pretty much understand the beginning part and the end part, but I’m a little fuzzy about the middle part. Allow me to elaborate. The beginning part declares that the U.S. Constitution does not mention any rights related to abortion. This proved to be super-easy to check since I have about a dozen copies of the Constitution floating around the house and garage, printed in miniature, handed to me over the years at Memorial Day parades and 4th of July parades and County Fairs and such. So, I grabbed one and read it, front to back. (Funny – it’s not very long…) And, sure enough, there’s zero mention of abortion anywhere in it, not even amongst the Amendments. So, I’d say the beginning part of the Dobbs v. Jackson Women’s Health Organization decision is spot-on. I’m not surprised about this. If you take a good look, the Constitution doesn’t actually say a whole hell of a lot about what people can and can’t do. That’s not the point of the Constitution, regardless of what we’ve been told; I mean, that’s not why the Constitution was written. The Constitution was originally written to define and limit the powers of a new federal government that was meant to serve the collective needs of several already-existing, independent states. ‘United States’ was a theme for a new club more than a name for a new country. Even the cherished Bill of Rights itself (meaning the first ten Amendments), has nothing to do with granting rights to people. The Bill of Rights is about limiting the power of the federal government from infringing upon a bunch of peoples’ rights that are assumed to already exist. This, by the way, is the real beauty of the Constitution as far as I can see it – and I’m surprised more people don’t talk about it out loud: The Constitution assumes, by default, that individual people already have every “right” imaginable, and that our individual rights are innate and inalienable because we are, in fact, here, present, and alive in this very moment. Ain’t that a peach? Furthering that idea, the Constitution assumes that we don’t need a federal government (or any government, for that matter) explicitly spelling out what all our rights might or might not be. For instance: Do we expect the Constitution to say anything about breathing, flirting, sleeping, fucking, farting, getting a library card, swimming, laughing, or seeking out competitive quotes for car insurance? Of course not. Why, then, would we expect the Constitution to have anything to say about, say, getting an abortion? “Aha!” you might say. “What about the right to bear arms? The Constitution says we have that right, doesn’t it? Or what about the right for women to vote? The Constitution spells that out in black and white, correct? Doesn’t that mean that the Constitution is telling us what our rights are?” Actually, no. The Constitution does not say that people have the right to bear arms. The second Amendment to the Constitution says that the government is not allowed to infringe upon people’s right to bear arms. That’s a big difference if you think about it. It means that people’s right to bear arms is presumed to already exist, and that this specific right is not meant to be trampled upon. Similarly, the Constitution does not grant women the right to vote. The nineteenth Amendment to the Constitution says that the government is not allowed to deny or abridge people’s right to vote based on sex. Again, that’s a big difference. It means that men’s and women’s right to vote already exist and the government is not allowed to say otherwise. * * * I feel myself drifting here…please forgive me. I was talking about the Dobbs v. Jackson Women’s Health Organization decision and then it turned into a Constitutional ramble. I wanted to say something about the middle and end parts of the decision too, but in order to do so, I need to get out of my own way. There’s a lesson in that for me. But before I correct my drift, thus proving that I've learned my lesson, I'd like to briefly share a story from my freshman year of college. It'll only take a minute. I was taking notes in a mid-week, morning math class, if I'm remembering correctly, when another student raised his hand. The lecturing professor paused, pulled his head out of the glare of the overhead projector up at the front of the room, raised one bushy eyebrow and asked, "Can I help you, young man?" The student asked if he could go to the bathroom. I'll never forget what the professor said. The professor chuckled and replied, "This isn't high school anymore, young man. You don't have ask anybody for permission to go to the bathroom. I don't care if you go to the bathroom. I don't care if you get up, walk out, and never come back. You're paying good money out of your own pocket to be here, so you can come and go as you please. I just ask that you don't disturb anyone else while doing so, because they're all paying good money to be here as well." Can you imagine if the professor had narcissistic tendencies or a Napoleon complex or something? He would have gone straight for the power grab. He would have granted or denied permission. Luckily he was a decent guy and had the ability to teach more than math. I know I, for one, walked out of that class that day with a new perspective on how people can easily get indoctrinated into voluntarily giving away their personal power. Nowadays, I see it happen all the time. * * * OK, so back to the Dobbs v. Jackson Women’s Health Organization decision… The beginning part is clear. And I understand the end part well enough, which says that the “authority to regulate abortion is returned to the people and their elected representatives.” This means that individuals can have a say about abortion without being forced to tow some federal line about it. That makes sense. It also means that if there are communities where people wish to have strict, pro- or anti- abortion rules established by their local or regional governments, those communities can go right ahead and make that happen by voting those rules into law. Well, OK. Sounds good to me. I think the stand-out language is the bit about authority being ‘returned to the people.’ The word “returned” makes it sound as if that authority had been taken away for a while, and that it’s now being given back. That strikes me as somewhat weird. It makes me wonder about what the decisions in the Roe v. Wade and Planned Parenthood v. Casey cases actually said. Which brings me to the middle part of the decision, the part I’m fuzzy about. The middle part says that the previous Supreme Court decisions from Roe v. Wade and Planned Parenthood v. Casey have been overruled. What does this really mean? To know that, it means we have to understand the gist of Roe v. Wade and Planned Parenthood v. Casey. I have to confess: Up until a few weeks ago I didn’t know diddly-squat about either. Nor did know anything about Dobbs v. Jackson Women’s Health Organization. So I realized I couldn't come at this like a smarty-pants legal eagle might do, drawing upon knowledge from file cabinets inside my own head. I was going to have to do a little homework. Cases in Point The recently decided Dobbs v. Jackson Women’s Health Organization case, summarized above, was about the constitutionality of a 2018 Mississippi state law that banned most abortion operations after the first 15 weeks of pregnancy. Jackson Women's Health Organization (Mississippi's only abortion clinic) had sued Thomas E. Dobbs, an officer with the Mississippi State Department of Health. Lower courts had prevented enforcement of the law, citing the ruling in Planned Parenthood v. Casey. Which brings us to that case… The Planned Parenthood v. Casey case was decided in 1992. It took a look at how Planned Parenthood had sued Robert P. Casey (the then Governor of Pennsylvania) regarding five provisions of the Pennsylvania Abortion Control Act of 1982. Among the provisions were requirements for a waiting period, spousal notice, and parental consent for minors prior to undergoing an abortion procedure. Although these provisions seem practical enough, they were not to the liking of the ironically-named Planned Parenthood organization, thus the lawsuit. Interestingly, this case exposed Roe v. Wade to the chopping block. In fact, during the proceedings, four Justices expressed opinions that Roe v. Wade should be stricken down. But in the end, the “essential holding” of Roe v. Wade (see below) was upheld, even though Roe v. Wade’s first trimester framework (also see below) was abandoned in favor of a new “fetal viability framework.” And there was something else: The decision also abandoned Roe v. Wade’s position that statutes regulating abortion must be subject to "strict scrutiny" – fancy talk for the Supreme Court’s most rigorous tests for impositions upon fundamental constitutional rights – instead adopting an “undue burden standard” – fancy talk for the Supreme Court’s less-rigorous evaluation and review about the general sense of liberty and privacy protected under the Constitution. When it was all said and done, the final decision in Planned Parenthood v. Casey ended up along the lines of this (my summary): Women have a general, constitutional right to choose to have an abortion – but only before the time when a fetus could be able to survive outside the womb, which is generally considered to be within the first 24 weeks of pregnancy. Applying this new standard of review, the Supreme Court upheld four provisions of the Pennsylvania law brought to trial, but invalidated the requirement of spousal notice. The big picture of the Planned Parenthood v. Casey case is this: Based on what’s been discussed up above, this is really shaky ground – mainly because the Constitution clearly doesn’t say anything about abortion. And even if it did, we all know there is really no such thing as a “constitutional right” because the Constitution is not in the business of granting any rights to people. The most the Constitution would or could say about abortion would be something along the lines of a new Amendment that would say “the government is not allowed to deny a woman’s preexisting right to choose to have an abortion.” But since everyone already knows this to be true, what would be the point of it? Would it be any different than creating a new Amendment to the Constitution that says “the government is not allowed to deny a man’s preexisting right to choose to shave his facial hair?” Well, I guess there is one little difference. Getting rid of some facial hair and getting rid of a baby may be an apples and oranges kind of thing. Some people wonder if a baby, even if it’s still inside its mother, might actually be a sovereign, independent person whose rights ought to be constitutionally safeguarded. The Planned Parenthood v. Casey ruling addressed this little bump in the road (no pun intended) by saying that sometimes that’s true and sometimes it ain’t, that it’s a just a matter of timing. The Supreme Court decided that babies inside bellies during the first 24 weeks are indeed no different than facial hair – shave ‘em off, send ‘em down the drain, and call it a day – whereas babies inside bellies longer than 24 weeks are not the same as facial hair, because they stand a decent chance of surviving if they happen to find themselves outside their moms’ bellies, and can be immediately be fitted with their own, tiny My Body My Choice onesies that will speak for them until they can speak for themselves. This is where things really go off the rails when it comes to trying to make laws about abortion. Who has the preexisting rights? Is it just the mother, or does the baby have preexisting rights too? Again, I’ll say it: The Constitution is not meant to weigh in on this kind of thing at all. But that didn’t stop the Supreme Court from issuing supposedly “Constitutionally-based” decisions in Planned Parenthood v. Casey, and in Roe v. Wade before it. I’ll get to Roe v. Wade in a minute. But first, I can’t resist calling attention to the Unborn Victims of Violence Act. This is a federal law, passed in 2004 (Public Law 108-212) that recognizes unborn babies as legal victims if they are injured or killed during an act of criminal violence. The law specifically defines a "child in utero" as "a member of the species Homo sapiens, at any stage of development, who is carried in the womb." So, if a criminal kills a pregnant woman at any time during her pregnancy, there will be two counts of murder to face, rather than one, regardless of whether or not the criminal knew the woman was pregnant. How ‘bout them apples? Is this an example of some irreconcilable confusion or contradiction in federal law (from 2004-2022, at least)? Maybe. Maybe not. It’s more interesting to me as an example of how the Supreme Court and lawmakers are in way over way their heads when it comes to topics like abortion. I think it’s another feather in the cap for the recent Dobbs v. Jackson Women’s Health Organization decision. Meaning, courts and lawmakers shouldn’t be able to draw an arbitrary line in the sand and then declare that anyone to the left of their line is a “victim” and anyone to the right of it is not. Anyway, the business in Planned Parenthood v. Casey about the “constitutional right to choose to have an abortion” turns out to be the essential holding of Roe v. Wade, rather than any stuff about the timing of when a woman chooses to have an abortion. So, what was Roe v. Wade all about anyway? I guess we’ve finally arrived at the Tootsie Roll Center. It only took three bites. Or maybe five. I forget how many bites exactly. If you want to know how many for sure, go ask Mr. Owl. The Roe v. Wade case was decided in 1973. The plaintiff was a 21-year-old woman named Norma McCorvey (she used the pseudonym "Jane Roe" in the case) who became pregnant in 1969 with her third child. McCorvey didn’t want to have a third child. She was happy with just the two. She wanted an abortion. But she lived in Texas where abortion was illegal, except in cases when it was deemed necessary to save the mother's life. Her lawsuit was filed against her local district attorney, Henry Wade, alleging that Texas's abortion law was unconstitutional. Texas argued that limiting abortion to situations where the mother's life was in danger was justified because life began at the moment of conception, and therefore it was in the interest of the state to protect all prenatal life regardless of the stage of pregnancy. But the Supreme Court decided that Texas's abortion statutes were unconstitutional and struck them down, saying that there was no indication that the Constitution's various uses of the word "person" were meant to include fetuses, and as such, Texas was incorrect in arguing that a fetus should be considered a "person" with a legal or constitutional right to life. The Supreme Court noted that there was still a great amount of medical and scientific disagreement over when an unborn fetus becomes a person, saying that: We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, in this point in the development of man's knowledge, is not in a position to speculate as to the answer. [Roe v. Wade; 410 U.S. at 159.] But strangely, the Supreme Court went right ahead and did exactly what they said they couldn’t do: They went ahead and made pregnancy timing a part of their decision. The decision in Roe v. Wade is unwieldy in its original form. Add to that layer upon layer of political mumbo-jumbo that’s 50 years thick. Coming to an understanding of what it said was a tough homework assignment. It took me quite a while to distill it down to the following (my summary): Women have a fundamental constitutional right to choose to have an abortion, as conferred by Section 1 (the “Due Process clause”) of the 14th Amendment to the U.S. Constitution. However, this right is not absolute, as it must be balanced against government interests by adhering to a trimester framework described as follows: (i) During the first trimester of pregnancy, States can place no restrictions on a woman’s right to choose to have an abortion, other than imposing minimal medical safeguards, such as requiring abortions to be performed by licensed physicians; (ii) During the second trimester of pregnancy, States have a compelling interest, allowing them to enact medical regulations on abortion procedures so long as they are reasonable and "narrowly tailored" to protecting mothers' health; and (iii) During the third trimester of pregnancy, States can regulate or outlaw all abortions in the interest of the preserving the potential life of the fetus, except when an abortion is deemed medically necessary to preserve the life or health of the mother. Reading this word jumble, I must say that I find it hard to believe that the Roe v. Wade decision existed in the first place, much less survived for a half a century. First off, there’s nothing in the Due Process clause of the 14th Amendment that has anything to do with granting women the right to choose to have an abortion. It may be worth noting that the Due Process clause doesn’t have anything to do with granting women the right to give birth to babies either. Why on earth would it? Here’s Section 1 of Amendment XIV in its entirety, so you can check it out for yourself: 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. Once again, we find the idea that people already have rights baked right into the Constitutional crust. The Constitution is safeguarding these rights, not granting them. Secondly, the trimester framework in the Roe v. Wade decision is just plain weird. The notion that a woman does not have an absolute right to choose an abortion, or that States have some sort of “interest” in whether or not a woman births a child is, well, Orwellian. Alas, this may be a tip-off to what Roe v. Wade was really all about in the first place, and a clue as to what might be happening now. Getting Personal In all the above “landmark” Supreme Court cases – Dobbs v. Jackson Women’s Health Organization (2022), Planned Parenthood v. Casey (1992), and Roe v. Wade (1973) – I can’t help but notice that there was only one pregnant woman involved as either plaintiff or defendant. That was Norma McCorvey, a.k.a. Jane Roe. I wondered what ever became of her, so I did some more homework.
As it turns out, Norma McCorvey went ahead and had her third child, and placed her for adoption. After all, it took a whopping three years for her case to make it all the way up to the U.S. Supreme Court. And guess what? Once the legal proceedings got underway, Norma McCorvey never attended a single trial. Not one of them, over the entire three-year run. Apparently, she was too busy living her real life to be bothered with such formalities. And here’s another zinger: Instead of accepting any of the numerous offers (which presumably included some significant financial incentives) to become the Rosa Parks of the pro-choice movement, Norma McCorvey chose instead to speak out against the Roe v. Wade lawsuit. She told the press that she had sought an abortion at the time because she was “unemployable and greatly depressed” and that “starting the Roe versus Wade case in the first place was a mistake.” And then, later in life, she got all religious. She became an evangelical Protestant and then a Roman Catholic. She even became actively involved with the pro-life movement. Book deals withered on the vine. Donahues and Oprahs ran for the hills. Based on all the above, I can’t help but think we’re all being played. People cheered the Roe v. Wade decision, way back when, as a liberal victory, when, in fact, it was an attack on personal liberty. It was a runaway train innocently initiated by a woman who distanced herself from it as soon as it started to move. People are currently protesting the Dobbs v. Jackson Women’s Health Organization decision as a liberal defeat, when, in fact, it’s a huge victory for personal liberty. Down is up. Up is down. I get it. I get that federal-level opinions and decisions on matters such as abortion have way more to do with social engineering than with people’s individual rights and liberties. I know there are nefarious players within our government who have fancy ideas about population control and imagine abortion to be something like a tuning knob for resetting demographics. Let’s not pussyfoot around this: “Resetting demographics” means Nazi-like eugenics crap; it means throttling the growth of poor, non-white populations. For instance, Planned Parenthood, plaintiff in the Planned Parenthood v. Casey case mentioned above, is nothing but a thinly-disguised eugenics operation. Sorry if that offends anyone – I’m just calling it like I see it. Their mission statement since Roe v. Wade has been something like this: Make abortions cheaply and readily available to poor people with dark skin living in the shitty parts of big cities. To accomplish this, they’ve been burning upwards of $600 million annually in federal funding in recent years. Oh, and here’s a little gem: Earlier this year Planned Parenthood received a personal donation from Jeff Bezos’s ex-wife, Mackenzie Scott, in the amount of $275 million. Gulp. What the hell is her agenda? That’s a rhetorical question. I don’t really want to know. Anyway… Will the recent Dobbs v. Jackson Women’s Health Organization decision put a little hitch in Planned Parenthood’s giddy-up? Let’s hope so. I understand that there are well-intentioned, pro-choice advocates out there who are passionate about environmental stewardship and sexual liberation and personal freedom and such. These are all good things, to be sure. But I do worry that these good people may be serving as unwitting agents for the Powers that Be. I also understand that there are well-intentioned, pro-life advocates out there who are passionate about defending the helpless and protecting young people from making decisions that will later haunt them. These are good things as well. But I worry equally that these good people may be serving as unwitting agents for the very same Powers that Be. All these people, engaged in this public tug of war contest, pulling and struggling against each other. Is it worth rooting for one team or the other? Or are all their efforts, on both sides of the rope, ultimately for naught? Is the whole "contest" nothing more than an elaborate performance art piece, taking place for the Pleasure of the King? I guess one lesson might be this: We all have to be oh-so careful about supporting Big Causes, because there are usually unintended consequences – some of which can even manifest as opposite-from-intent realities. Small Causes might be a better ticket. So, is it possible to convert a Big Cause like “abortion rights” into a Small Cause? Well… Yes, I think it might indeed be possible – as well as deceivingly simple. The recent Supreme Court decision may actually be the first step. This is the federal government getting out of the way. I say good! Let’s take that ball and continue to run with it! The next step would be for each of the fifty states to realize that they too can do exactly the same. States are not compelled to make any laws for or against abortion. The states can all simply choose to bow out, get out of the way, make no laws about abortion whatsoever, neither for or against it. If they do that, then we’ll arrive, effortlessly, at the core of my friend Jill’s sentiment, a little patch of common ground that I imagine we can all agree on: Getting an abortion is a private issue, a sacred issue. It’s a decision that only an individual can make. We simply don’t have to fall for the hype or pull the rope. We don’t have to organize protests or petition lawmakers to make or modify laws that say this or that about abortion. We don’t have to secretly despise our friends and neighbors for holding different views, or worry that those different views might contaminate our shared well. We don't have to raise our hand and ask permission to go take a piss. All we have to do is recognize that the right for a woman to choose to have an abortion already exists. No lawmaker at any level is required to birth it into law because this innate, inalienable right is already alive and kicking. Instead of playing bit parts in a drama that’s being produced by someone else, we can all make the decision to star and direct in our own show and then go ahead and do exactly that. Ain’t that a peach? – O.M. Kelsey
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