Transcendental Nonsense: The Creation and Disintegration of Abortion Rights

-- By JaredBaumgart - 11 Feb 2008 This paper isn't yet ready to be re-read

Introduction

Transcendental nonsense in Roe v Wade suggests that women have the right to an abortion. More accurately, state legislatures cannot ban abortion, subject to certain restrictions. Because they are guaranteed in legal talk rather than functional language, abortion rights are tenuous. These rights illustrate Cohen’s contention that “traditional language of argument and opinion neither explains nor justifies court decisions” because it “forgets the social forces which mold the law and the social ideals by which the law is to be judged”. (Cohen, 40/812)

The Law Talk Problem

Abortion is not discussed expressly in the Constitution. Blackmun’s opinion justifies abortion by expanding on a progeny of cases discussing the right to privacy: precedents have interpreted the 14th Amendment to establish a right to privacy, such privacy includes bodily privacy and decisional autonomy, states denying abortion infringe on those privacies, and therefore states cannot prohibit abortion absent a compelling interest narrowly tailored to their purpose. Blackmun’s opinion may be correct under formal logic, in that his premises as defined lead to his conclusion. But it does not matter because logic can argue the same premises to the opposite conclusion; the dissent’s law talk is also convincing. If states cannot restrict abortion pre-viability, then it is not because the Constitution can be read to say so. To make abortion rights meaningful, they should be rooted deeper than the law. The law reflects the social consensus at the time; abortion rights should be established in the social and moral undertones which the law reflects. Laws that don’t reflect the values of society will always be vulnerable. What we need is a reason why social and ethical reasons support reading abortion rights into the Constitution rather than the opposite reading.

Few people are pro-choice because Supreme Court precedents read the Constitution to support that position. Those who fight for abortion rights find more compelling reasons that involve practical concerns, not legal theory. Sociologically, communities benefit by reducing unwanted pregnancies, unwanted children, overcrowding, and resource depletion. Preserving individual liberty is an end in itself. Psychologically, unwanted pregnancies create substantial mental distress. Economically, abortion reduces financial burdens on poor families. Biologically, if a fetus is not a life then it holds no rights over its mother. Historically, some cultures allowed abortions. Despite the number of functional arguments for allowing abortions, these concerns have not been used to bolster the right. The right still stands on law talk about the 14th Amendment.

Holmes stresses that understanding the law requires understanding what it does and how it works. What Roe does is limit states’ power to bar abortions pre-viability; it functions by declaring any such legislation as unconstitutional. Roe’s holding did more to limit states’ power and less to actually create abortion rights. States still had considerable abilities to limit abortion. In Maher v Roe, the Court allowed states to encourage childbirth over abortion by limiting Medicaid benefits to only medically necessary abortions. Three years later, Harris v McRae? held that states were not required to dispense Medicaid benefits even for abortions that were medically necessary. The practical affect was that abortion was still unavailable to many women. http://www.feminist.com/resources/ourbodies/abortion.html. Without disturbing Roe’s holding, its practical affect had been greatly diminished.

Continued Deterioration

Abortion rights have continued to teeter on legal language, with current access to abortions limited and future access not guaranteed. The disintegration is not imminent; it is happening. Several cases have broadened states’ rights to restrict when and how women can have abortions. Casey v Planned Parenthood demonstrated the precariousness of abortion rights only twenty years after they were created. Roe narrowly escaped being overturned, and the plurality indicates Roe’s law talk was not convincing. That Court could only justify keeping Roe’s central holding that pre-viability abortions cannot be unduly restricted; the pro-choice justices could no longer justify the trimester scheme Roe had established, and they could not overrule several of the burdens Pennsylvania had placed on abortions. The laws declared constitutional, particularly the 24 hour waiting period, deny women access to abortion. The Court did not have the ability preserve practical access to abortion; they could only protect the right with law talk, and that protection extended only so far.

In Stenberg v Carhart (2000), a state law prohibiting partial-birth abortion was ruled unconstitutional because it did not include a medical health exception. Seven years later, Gonzales v Carhart “ “adhered to precedent” ” while banning partial-birth abortion without providing a medical health exception. Ginsburg’s dissent charged that the majority “refuses to take Casey and Stenberg seriously” and “tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases”. I agree with Justice Ginsburg that the difference in the two rulings, just seven years apart, is substantial. The jurisprudence has shifted away from concern for women’s autonomy towards a battle between the justices’ politics, and if precedents can just be circumvented then women can place no faith in the future of their right to abortion. Perhaps most telling, and troubling, is the latest addition to the Court. Justice Alito was on the Third Circuit when it decided Casey, and he filed a separate opinion which would have upheld all the laws at issue. He believed there was no undue burden if the law affected only a small percentage of women. Of course, that small percentage of women affected were likely the most powerless in the most desperate situations; they were the ones who would most need legal protection of their rights.

These cases demonstrate that there’s a divergence between what is protected in legal theory, and what is protected in practice. It does not matter that abortions are legal; even with Roe many people that need an abortion are denied for lack of means. A powerful pro-life movement is strongly motivated to change abortion rights. With the right case, Court, and social atmosphere, the legal reasoning supporting abortion can be overturned. Abortion will then have no legs to stand on, since functional language was not used to secure the right.

The effort required to change abortion rights through functional laws, and not through judicial law talk, is substantial. Arnold would not question pro-choice leaders establishing abortion rights through the Court. They did what they could and gained what could realistically be gained. Had they not acted then the pro-lifers viewpoint would have prevailed instead. Nevertheless, the consequence of transcendental nonsense exists. It may be impossible to fix these problems in the near future; but long-term, rooting abortion rights in institutions besides legal institutions is an achievable goal. Rights that are secured only through law talk, without the underlying support from a moral and social consensus, will always be vulnerable to the votes of the Supreme Court. While the Supreme Court can always go against public consensus, building a pro-choice consensus would create a formidable barrier to such actions.

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I think the middle part of my first paper didn't work at all; it came across as an Obama "Yes We Can" speech which didn't give much substance. So, I removed that part and tried to narrow the focus a bit. I'm wondering if discussion of substantive due process as a concept would help, or if it would be too broad for the purposes of this paper. # * Set ALLOWTOPICVIEW = TWikiAdminGroup, JaredBaumgart

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