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ElizabethBrandtSecondEssay 4 - 07 Feb 2017 - Main.EbenMoglen
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| | Finally, should the worst scenario come to pass and Trump’s administration successfully make abortion into a state issue, funding and infrastructure to support women unable to otherwise afford an abortion will become essential. Perhaps health and employment laws such as FMLA can be flexed to help broaden the net supporting women who will need time off from work to travel for an abortion. Trump may not show any respect for women or women’s health issues, but women ultimately won’t be trumped in this battle. | |
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In general, I think your commentary here is accurate. As I share
your viewpoint, it is possible that I am not adequately sensitive to
its weaknesses. My own lawyering on the subject proceeds from the same assumptions as those you voice here.
But it seems to me that two points need acknowledging:
- Since Harris v. McRae, 448 U.S. 297 (1980) we have known that this constitutional right women have is not a right to anything, because poor women can be deprived of it. This right is only a right against some interferences with medical procedures some women can afford to have.
- For more than a generation, this right has been stringently and arbitrarily limited geographically. In 2014, roughly 90% of US counties lacked any provider of abortion services; almost 40% of women aged between 15 and 44 lived in those counties.
So whatever the Trumpian marriage of convenience with the Christian
right might produce in the way of future Supreme Court decisions, the
"right" that we are engaged in trying to protect has never really been
much of a right at all for a large fraction, maybe the majority, of
women in America. This implies that those of us who supported it may
have been willing to "call it good" in a constitutional sense if those
who were like us, lived near us, had our sort of means, had a right
against an interference folks like us could afford to overcome. In
which case, although our logic may be right and our values defensible,
our conduct is open to some quite significant criticism that we
ourselves might want to offer.
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