Monday with the Supremes: Part VI: The Abortion Debate (with Jokes)

A limited-run series where I review three books about the Supreme Court of the United States, exploring its historical and ideological conflicts, and the transformations it wrought upon law and society.

So … who wants to talk about abortion?  Abortion, like health care and gay marriage is a political third rail topic.  Nevertheless, it is an important topic to discuss, preferably with cool heads and open minds.  The latest verbal atrocities from the Right (all this talk about “legitimate rape” and incest) and the inevitable hysterical reaction from the Left, make this a challenging topic to elucidate and explain.  The George Carlin and Bill Hicks video clips make things a little easier, since both stand-up comics are expert rhetoricians who cut through the bullshit to confront the contradictions, hypocrisy, and sanctimonious doublespeak that seems to attach itself to any conversation about abortion and the right to choose.

In this installment of Mondays with the Supremes, I will examine three cases covered The Brethren and The Nine.  The next installment will investigate the ideological sea change that occurred on the Supreme Court.  The sea change arose from a movement conservatism galvanized on college campuses, law schools, and talk radio programs.  One central issue that caused this passionate galvanization was Roe v. Wade and the desire to overturn it.  Since this ideological agenda is so radical and the consequences so wide-ranging (Cf. Brown and the Civil Rights struggle against Southern intransigence), the Right has hidden their agenda from view, preferring to use the Supreme Court case Dred Scott as cover in their rhetoric.  Equating Roe with Dred Scott has a kind of Satanic genius to it, since the Dred case remains one of most notorious and repellent opinions handed down from the Taney Court.  (And the pun of Dred and dread is a nice touch.)

We’ll look at Roe v. Wade and its judicial shortcomings, including how legislators have sought to restrict the right to choose.  If it can’t be overturned, it can be restricted.  (See the 13th, 14th, and 15th Amendments and Jim Crow and the theory of “Separate, but equal.”)

In the words of Bill Hicks, “Because he’s a Hitler and here’s a fetus, go get him!”  And in the words of a Mr. Show sketch, “Because life is sacred and God and the Bible.”

By the way, I’m pro-choice.

My own ideological bias will inform the piece, but the challenge will be to not this bias overshadowing the work.  A tricky task in the practice of history and made trickier with a topic this inherent volatile.  (Hence, the use of jokes and humor in the spirit of Jonathan Swift’s “A Modest Proposal”.)

Roe v. Wade, 410 U.S. 113(1973)


Texas law making it a crime to assist a woman to get an abortion violated her due process rights. U.S. District Court for the Northern District of Texas affirmed in part, reversed in part.

Majority: Blackmun, joined by Burger, Douglas, Brennan, Stewart, Marshall, Powell
Concurrence: Burger
Concurrence: Douglas
Concurrence: Stewart
Dissent: White, joined by Rehnquist
Dissent: Rehnquist

The Brethren is chock-full of set-piece Court cases, this time Woodward and Armstrong’s book covers the origins, interpretations, and outcomes of Roe v. WadeRoe remains one of the most divisive and controversial Court cases.  It is comparable to Brown v. Board of Education in its social impact and what critics claim as “legislating from the bench.”

Throughout the case coverage, we find Justice Harry Blackmun struggling to resolve this difficult task assigned to him by Chief Justice Burger.  Justice Blackmun’s previous work had been as a General Counsel for the Mayo Clinic and, like Burger, was a Minnesota native.  As Burger and Blackmun develop their respective law practices, we see how they eventually diverge from each other.  Burger continues to practice law as a by-the-books law-and-order conservative Republican.  In investigating the Roe case, Blackmun eventually pairs up with Justice William Brennan, the Court’s lone Catholic.

Blackmun plunges into the legal challenge by heading back to Rochester, Minnesota and reading up on medical literature at the Mayo Clinic’s library.  The product of these researches is the creation of an “abortion test,” resting on the concept of fetal viability.  Abortions become less and less permissible in each successive trimester.  Following the publication of the opinion, Blackmun and Brennan met with a vituperative reaction.  Catholics likened Brennan to Hitler and Blackmun received mailbags full of hate mail.

Let’s dig deeper than the opinion and the superficial reactions.  While the case centered on “a woman’s right to choose,” the female patient was not the issue.  The issue stemmed from a more libertarian idea, “When does the government have the right to interfere with a doctor’s medical practice?”  The answer: It doesn’t in the case of a doctor offering medical term regarding a woman’s decision to terminate a pregnancy.

What does the government know about medical care?  Is this the government’s job to decide?  The Supreme Court opinion tried to square that circle with its “test.”  In judicial terms, Roe’s importance is undisputed.  In medical terms, it is sorely out of date.  Prenatal care has improved and the concept of “fetal viability” has become less the subject of arbitrary boundaries set by a former hospital lawyer.

The just plain idiotic rhetoric and legislation spewing from Republicans these days does not help matters.  The latest law purporting that “life begins two weeks before conception,” hence abortions should be illegal.  This seems less like “life is sacred,” than having a political script written by meth-addled Dadaists.  That makes menstruating women murderers and, well, just replay the George Carlin clip.  Life conceived before conception sounds like a moral Moebius strip.  How does one argue with a Black Hole of Dumb?

Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992)


A Pennsylvania law that required spousal notification prior to obtaining an abortion was invalid under the Fourteenth Amendment because it created an undue burden on married women seeking an abortion. Requirements for parental consent, informed consent, and 24-hour waiting period were constitutionally valid regulations. Third Circuit Court of Appeals affirmed in part and reversed in part.

Plurality: O’Connor, Kennedy, Souter (jointly)
Concur/dissent: Stevens
Concur/dissent: Blackmun
Concur/dissent: Rehnquist, joined by White, Scalia, Thomas
Concur/dissent: Scalia, joined by Rehnquist, White, Thomas

“Spousal notification”?  How 19th century of Pennsylvania to write a law so retrograde and insulting to women.  I’ll throw another two words out there, “bodily sovereignty.”  While the case’s strange opinion – a three-person plurality, flip-flopping concurrences and dissents, alliances forming and collapsing faster than a Big Brother episode – let’s focus on what the Pennsylvania law wanted to accomplish.  Namely, that a woman was mandated by law to notify her husband when she sought to terminate a pregnancy.  Seriously, Pennsylvania, what the hell?  Why not abolish the women’s right to vote while you’re at it, since they should confer with their husband before making an important decision like that.

Justice Sandra Day O’Connor, a diehard conservative, didn’t even cotton to that kind of horseshit.  Unlike the Brethren, where the Supreme Court was all male, albeit racially and religiously diverse, the Supreme Court of Casey is another beast entirely.  O’Connor’s presence would become a harbinger for more women to appear on the Supreme Court, including women of diverse ethnic backgrounds.

But let’s back up a bit.  The pompous gasbags of the Pennsylvania legislature, when not cheating on their wives and taking bribes, er, campaign contributions from ethically questionable sources, had the gall to scribble this ridiculous law.  Why is it ridiculous?  You really want it spelled out for you?

While Roe involved the concept of government meddling in medical affairs, Casey reeks of paternalist condescension.  It is also an egregious violation of the Fourteenth Amendment guaranteeing equal protection under the law.  Simply put, it states that women are not equal to men when it comes to medical decision-making.  (I bet dollars to donuts that there is no complementary law in Pennsylvania mandating a man has to gain spousal permission before he gets a vasectomy or a Viagra prescription.)  In the eyes of Pennsylvania lawmakers, the concept of abortion makes women special, and not in a good way.  This isn’t a doctor advising that a woman should consult her husband before she terminates her pregnancy; this is the government making it a law that she must do this.  One wonders what the penalty entails, since a woman making a decision of her own independent volition would mean breaking the law.  Thus, the concept of bodily sovereignty.

Casey’s paternalism is part of the common trend of legal prohibitions, including the Volstead Act’s banning of alcohol and Rockefeller anti-drug laws.  Both have been resounding failures that have caused more harm than good.  A patient should be able to make informed decisions about his or her body in regards to reproductive issues without the meddling of some overfed sanctimonious cretin sitting astride a chair in the state legislature.  Having bodily sovereignty involves the ability to choose whether to terminate a pregnancy.  (I concede that cases involving pregnancy with an underage individual is a separate issue, especially if rape or incest is involved.)  But the lawmakers are saying you can’t choose.

This wouldn’t be as offensive to common sense if the same lawmakers of an ideologically right-wing persuasion were utterly and fanatically committed to banning contraceptive information and supporting “abstinence education,” a sex ed. program that has created thousands of American bastards.

One of the circuit court judges who upheld Casey was Samuel Alito, who now has his condescending paternalistic ass on a chair in the Supreme Court.

(So much for objectivity on my part.  It is challenging to be dispassionate and levelheaded when a law this insulting and downright stupid is besmeared across the law books in a democracy.)

The previous outrage stems from the assumption based on a stereotypical vision of the American family, everyone belonging to a vast amoebic middle class and in general law-abiding suburban types.  The spousal notification law would be a hassle, but there’s no inherent danger in it.  Now imagine a family where domestic and emotional abuse is common currency.  The wife is pregnant and she has to inform her husband.  (She may even been raped by her husband.)  While the Right concocts fairy tales based on Fifties television shows and passes that off as sociological fact, making Leave It To Beaver as a kind of Nuclear Family Template, the historical facts don’t bear any resemblance to the Cleaver-esque White People Utopia.  The woman in this abusive relationship may not see every child as a blessing from God.

One of the challenges of the abortion debate is its simultaneous impact as an economic and ethical question.  Only the naïve or very wealthy would fail to realize that a child is a serious economic burden on a family.  An unplanned birth could pose a financial difficulty for a family already strained.  But it isn’t just a simple line on a budget either.  To terminate a pregnancy is a major decision.  Heck, people get emotional when they have to put down the family dog.  While the tone of this essay verges from outrage to snark, don’t let the tone imply I’m undercutting the actual nature of this decision.  The problem is that the terms pro-life and pro-choice are too simple.  The abortion debate has become the main battleground in the Culture Wars and warlike rhetoric shuts down nuance, independent thought, and intelligent criticism.  (The same things get shut down in real wars.)

The rhetoric of the Culture Wars have become heated to such a degree it’s like that Mr. Show sketch about the East Coast-West Coast ventriloquist rivalry.  Professor Murder and Kill or Be Killed will take it from here:

Stenberg v. Carhart, 530 U.S. 914 (2000)

Holding: Laws banning partial-birth abortion are unconstitutional if they do not make an exception for the woman’s health, or if they cannot be reasonably construed to apply only to the partial-birth abortion (intact D&X) procedure and not to other abortion methods.

Majority: Breyer, joined by Stevens, O’Connor, Souter, Ginsburg
Concurrence: Stevens, joined by Ginsburg
Concurrence: O’Connor
Concurrence: Ginsburg, joined by Stevens
Dissent: Rehnquist
Dissent: Scalia
Dissent: Kennedy, joined by Rehnquist
Dissent: Thomas, joined by Rehnquist, Scalia

Every ideological camp has their fetishes and bugaboos.  On the Christian Right, it is the partial-birth abortion.  To those committed to the concept of pro-life, the procedure smacks of legalized murder.  And nothing is more abhorrent to common decency than the murder of an infant.  Like everything else in this essay, we need to do some linguistic unpacking.  With the raft of “personhood bills” being passed by Tea Party-influenced conservatives, the legislatures are doing what the Supreme Court did in Roe v. Wade.  They are playing doctor with disastrous results.  Granted, the lawmakers’ intentions are good (cf. Prohibition, the War on Drugs, the War on Terror, etc.), but it brings up an unpleasant reality.  Namely, that a “person” is defined in different terms depending on the context.  These contexts include a legal definition, a philosophical definition, an economic definition, a moral definition, and a biological definition.  (I’m sure there are others I’m missing.)

And the recent verbal word-vomit spewing from the Right these days, flies in the face of Stenberg.  Unlike the other cases profiled today, Stenberg explicitly brings up a woman’s health.  There are some cases where an abortion is necessary to save the life of the mother.  (These would be cases that wouldn’t fit into the rubric of pro-life vs. pro-choice.  Whose life?  Whose choice?)  In the end, the phrase “life is sacred” is nothing more than an applause line uttered at mid-level Bible colleges.  More accurately, it is fetal supremacism.  To the Right, the fetus has more value than the mother does.

One of the many ironies is that the same people so obsessed with saving the lives of fetuses are just as obsessed with defunding neo-natal care, Head Start, public education, public health initiatives, and countless other facets of social welfare.  This moral hypocrisy occurs not because they want to see non-aborted fetuses grow up to be malnourished stupid potential criminals, it’s because of the specific nature of this obsession.  They are not simply obsessed with the fetus, but with the Idea of the Fetus.  The fetus isn’t a growing accumulation of cells and organs dependent on the mother’s nutritional intake, but an idol to be raised up and worshiped like a golden calf or Baal.  It is a further development of the trend associated with Family Values and Children Are Our Future.  (The Left commits the same act with its nutritional Puritanism, railing against anything genetically modified.)

The rape-talk represents the final stage of conservative fetal idolatry.  It is one short leap from regarding the mother as a special member of the family to reducing women to nothing more than fetal carrying cases.  “Brood mares for the State,” as Carlin aptly puts it.

This is a further reflection on the concept of law between the conservative Right and the social libertarian Left.  The Right wants to see law as diktat.  “Thou shalt not have abortions,” bringing the full authoritarian power of the State to enforce this doctrine.  The Left sees the law as a means of keeping one’s options open.  No one wants to have an abortion, but it is good that the option is available.  Not every gay person wants to get married, but it would be wonderful if he or she were legally allowed to, at least in the sense of paying $75 for the marriage certificate.  One of the great paradoxes of the United States is the ideological contradictions imbued in both Right and Left.  The Right wants a completely deregulated economic sphere with a highly regulated moral sphere.  The Left wants a deregulated moral sphere and a regulated economic sphere.

While this essay doesn’t purport to solve the Abortion Question, I hope that the discussion of the cases gives you a more informed opinion when discussing the matter.

Up next: the Ideological Litmus Test

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