Given About To Be Argued Dobbs v. Jackson, A Longish Note On Abortion

 I continue to follow what’s happening with, and think about, the issue of abortion, both as an issue in itself and as a legal issue in the U.S. 

Tomorrow, Wednesday, December 1, 2021 is a big day in these respects. 

The case of Dobbs v. Jackson Women’s Health Organization gets argued  in SCOTUS tomorrow. It involves a Mississippi law that, broadly speaking, bans abortions after 15 weeks of pregnancy, which is to say, just shy of 4 months. The challengers say the law is unconstitutional and cite the precedent of the notorious Roe v. Wade and SCOTUS cases following it, namely Planned Parenthood v. Casey. 

The defence of the rightness of its law by Mississippi, and collaterally by various “friend of the court” briefs, includes an all out assault on Roe v. Wade. Needless to say, this case and the issue of abortion have been pivotal in the U.S. culture war and have done as much as anything to divide left and right. 

So tomorrow marks a huge step along the way to the continuation of the right to an abortion in U.S. law, which then has massive political and cultural ramifications. 

For the right, the moment is as close to ideal as it could be, with 6 conservative or conservative leaning justices—Thomas, Roberts, Gorsuch, Kavanaugh, Alito and Coney Barrett—and three liberal ones—Kagan, Breyer and Sotomayor.

For anyone interested, you can listen to the oral argument here: https://www.supremecourt.gov/oral_arguments/live.aspx

My own view has disparate parts. I never thought Roe v. Wade was wrongly decided, despite a loud chorus of condemnation of its reasoning from many prominent legal academics across the political divide. In a nutshell, my view was and remains that liberty entails privacy and privacy entails bodily autonomy. The limiting principle to my view in the case of abortion is the life of the aborning child. 

The current dividing line for legal recognition of that life given the stream of pregnancy is fetal viability, when the fetus can survive outside the mother’s womb. Under present U.S. law fetal viability occurs at around 24 weeks, just a shade under 6 months. So the Mississippi law is quite radical at making 15 weeks the limit on the right to an abortion. 

Case law subsequent to Roe v. Wade has bolstered its underpinning. I outlined that here: http://tinyurl.com/2p8nzajz  

I did so by a thought test under which I substituted a tonsillectomy or a appendectomy for an abortion. 

Despite my legal view, I have come personally to think that that 6 months is too long and that 12-16 weeks is a more humane limit given the state of the fetus then. 

My personal view notwithstanding, below is an oped by Charles Fried. He accessibly cites the central underlying point of bodily autonomy as the key unlocking the door to a constitutional right to an abortion. 

———————-

From Today’s NYT By Charles Fried

——————-

….Mr. Fried, a law professor at Harvard, served as solicitor general under President Ronald Reagan.

In 1989 I argued before the U.S. Supreme Court in Webster v. Reproductive Health Services, a case challenging a Missouri statute that forbade the use of any state funds or facilities for the conducting of abortions. 

On behalf of the United States I argued that Roe should be overruled, except in extreme cases such as when the life or health of the pregnant woman was at risk. I made these points in good conscience, drawing on a mix of history, precedent and what I saw as the interests of the rule of law.

I was a law clerk to Justice John Marshall Harlan II in 1961 when he dissented in Poe v. Ullman, a case involving the liberty of married couples to use contraceptives without interference or inquiry by the government, and provided what I then considered — and still do — the foundation of the law of privacy and personal dignity.

Abortion implicates not only those liberties of the pregnant woman but also, in the opinion of some, the life of another person, the fetus. Although personally agnostic on that issue, I did not see how the Constitution provides a principled basis for answering the question. 

That Roe was a poorly reasoned extrapolation from the contraceptive cases was a position taken by many constitutional scholars, including John Hart Ely, Paul Freund and Archibald Cox. As Justice Ruth Bader Ginsburg correctly predicted in a later talk at New York University, it was a leap that would shadow the law for decades to come. Perhaps better to have left it to legislation and the development of public opinion.

In 2005, testifying in favor of the confirmation of John Roberts as chief justice, I said that I thought he was too good a lawyer — a conservative in the manner of Edmund Burke and John Harlan, not a reactionary — to vote to overrule Roe. Senators Arlen Specter and Dianne Feinstein reminded me that I had argued the opposite about Roe 16 years before in the Webster case. 

My answer then, as now, is that the law had changed since 1989. In the 1992 case of Planned Parenthood of Southeastern Pennsylvania v. Casey, a joint opinion of Justices Sandra Day O’Connor, Anthony Kennedy and David Souter reaffirmed the central holding of Roe and put it on a firmer constitutional basis: the dignity and autonomy of the pregnant woman and the equal rights of women more generally.

Since that time, Casey had been cited and used as a basis of constitutional reasoning in many decisions in many areas of the law, including gay rights and the parental rights of a surviving parent. The decision has not only taken root; it has flourished and ramified.

To overturn Roe now would be an act of constitutional vandalism — not conservative, but reactionary.

When I argued Webster and made the case that overturning Roe would not undermine the broader foundation of privacy, I learned a lesson in the use of metaphor. 

Seeking to invoke my mentor John Harlan, I said I was not urging the unraveling of the whole fabric of substantive due process and unenumerated rights, but only to pull this one thread. To which my opponent replied that in his experience every time he pulled a thread on his sweater, the sleeve fell off…

A Brief Stab At The Correctness Of Roe V. Wade aka The Constitutional Right To An Abortion

 I’ll take a brief stab at this. I’ll confine myself to one’s appendix or tonsils. I can’t see the denial of substantive due process given the lines of reasoning starting with Brandeis’ dissent in Olmsted, adopted in Katz, continued in Griswold, thereafter in Roe and in Casey and further in effusively in Lawrence v Texas. 

These cases’ dicta converge generally on a capacious right of privacy as a necessary constituent of personal liberty and an anchor of liberty rights in the 5th and 14th Amendments. As Kennedy says in Lawrence, citing Douglas in Griswold:

“If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” 

As Douglas said in Griswold, and I think, it must be right, 

…. Nor is the right to study any particular subject or any foreign language. Yet the First Amendment has been construed to include certain of those rights. Without those peripheral rights, the specific rights would be less secure…

Given a capacious right of privacy as a necessary constituent of personal liberty, I can’t see how decision to have tonsils or one’s appendix removed isn’t but an instance of such a privacy right, how it doesn’t fit within the rationale evinced by the dicta that all go to establish the right. 

My surmise, substitute removing tonsils for abortion, and it would be hard for me to see any controversy in the assertion of it as a incident of one’s constitutionally protected privacy right.

Comments On Rittenhouse Case

 Ronald L. Sullivan on Rittenhouse case

https://quillette.com/2021/11/23/the-rittenhouse-trial-a-legal-scholar-responds/

My Comment As Written To A Friend:

“Where I fell out with Sullivan is in his rather blithe, and in my view unearned, following assumption:

————

…The Rittenhouse trial did not take place in a vacuum. Indeed, the event that brought Rittenhouse to Kenosha was a Black Lives Matter march, protesting the shooting of Jacob Blake, a young African American male. Many read this verdict as an indictment on race relations in the country. They contend that this is yet another example of white people manifesting their privileged status in America—so privileged that they can kill with impunity. They punctuate this argument with claim that if Rittenhouse were black, he would have been convicted.

On this last claim, I wholeheartedly agree. If Rittenhouse had been black, he most assuredly would have been convicted…

——————-

I don’t see how this trial and its verdict indict race relations in America. Jacob Blake was a criminal thug, the shooting of whom was cleared by an investigation into it, the cop who shot him placed back on active duty.

I see no white privilege involved anywhere here. There may have been an intended BLM protest in Kenosha in the wake of shooting Blake, but what eventuated were nights of criminal mayhem, arson and assault, most of which, if not all, carried out by white criminals of the type Rittenhouse shot in self defence. 

Nowhere in all that attended these events leading up to the trial itself and its resolution is there a lesson, let alone a sub text, that privileged whites “can kill with impunity.”

There is no warrant for assuming that a black Rittenhouse would have been convicted. That is errant speculation and it befouls Sullivan’s subsequent arguments proceeding from this assumption.  I find the assertion of this assumption a jarring distraction, especially given the cool, lucid, fair minded preceding legal analysis of the actual criminal law issues….”

My Friend L.C.‘s Comment:

I didn't get through most of the legal analysis, Itzik -- just too long for me, I'm afraid -- but he lost me early on, on his moral analysis. 

This much I agree with: that we look for more than merely "procedural justifications" for a particular law -- we also say it should "comport with our intuitive sense of moral blameworthiness". But that requires that we have a rational, not merely politically tribal, sense of what constitutes moral blameworthiness, and Sullivan, like so many under the spell of the Woke, doesn't. We can see that early on, when he presents the contrasting views of R's blameworthiness. On the blame side he cites irrelevancies like the crossing of a state line (which apparently he lives on the border of), distorts his motives (he wasn't there as a counter-protestor as far as I know, but rather as a defender of life and property), and omits (deliberately, I'd say) facts such as that relatives and friends lived in the area (only 20 minutes away). You might say he's just presenting the views of the blamers, whether or not they're right, but then you look at what he suppresses in his (un)"balanced" presentation of the other side, and you can see that he's stacking the deck: no mention at all of the fact that large numbers of the so-called "protestors" were in fact rioters, arsonists, looters, and exactly people "looking for trouble" . Without acknowledging that obvious, in-your-face point, then, sure, R looks like just a swaggering, gun-toting kid at best, and his whole side of the case falls into the merely procedural "he had a right" argument. That's like arguing that anyone trying to help others "has a right" to do so, but it entirely misses the point at issue in assessing moral blame or praise. 

So that gives away his game, I think, and it's in his conclusion that the moral rot is really exposed. That's where he bemoans the "unintended consequence" of relevant gun rights being "a Wild Wild West mentality where citizens feel emboldened to engage in private law enforcement" -- effacing the reality that it was the withdrawal of any effective official law protection that had created a real Wild West situation -- not "mentality" -- in the first place, where citizens feel forced, not to engage in private law enforcement, but simple to protect themselves. It's that deliberate erasure that is disgusting, and certainly not the celebration at the acquittal of someone  morally as well as legally blameless. But with some editing, his concluding paragraph stands up -- forget honoring these particular dead, and change the focus of the last two sentences: "Our society cannot and will not survive a polity that permits armed children rioters, looters, arsonists, and thugs to walk the streets and kill [or threaten to kill] with impunity. Our moral sensibilities push in a different direction, and we must take action to ensure that our moral sensibilities are adequately reflected in our positive law."

A Note On Yehuda Amichai’s Poem The Resurrection Of The Dead

The Resurrection of the Dead

Yehuda Amichai (2004)

translated from Hebrew by Leon Wieseltier

We are buried with everything we did,

with our tears and our laughs.

We have made storerooms of history out of it all,

galleries of the past, and treasure houses,

buildings and walls and endless stairs of iron and marble

in the cellars of time.

We will not take anything with us.

Even plundering kings, they all left something here.

Lovers and conquerors, happy and sad,

they all left something here, a sign, a house,

like a man who seeks to return to a beloved place

and purposely forgets a book, a basket, a pair of glasses,

so that he will have an excuse to come back to the beloved place.

In the same way we leave things here.

In the same way the dead leave us.

Online 

“Some Jews believe that in the Messianic Age, the temple will be rebuilt in Jerusalem, the Jewish people ingathered from the 

corners of the earth and bodies of the dead will be brought back to life and reunited with their souls.”

Me:

The initial idea in the poem is that when we die we take nothing with us and leave much of ourselves behind. We’ve in fact institutionalized the latter. 

That leaving much of ourselves behind is analogized to someone who purposefully leaves items behind at some beloved place just to have an excuse to return to to and gather what he left. 

But how can that analogy work?

The last lines resolve the question. When under the resurrection doctrine the dead come back to reunite soul and body, it means the dead leave the signs and indications of themselves behind—their bodies, consistent with the initial idea of the poem. 

And they come back to the place they have always loved, even if never physically there, Israel, by way of ingathering. 

Therefore, the second last line, fuses:

 (1) our temporal leaving things behind only to be able to come back to a beloved place to retrieve them; and 

 (2) our leaving much of ourselves behind when we die. 

By the last line, the dead leave us, the living, left behind so that their souls can come back to reunite with their bodies and ingather in their beloved place.

The State Of Nature and The State Contrasted In Alan Bloom’s Closing Of The American Mind

 Original quote From Allan Bloom’s Closing Of The American Mind

….Anarchism ... arises as soon as politics and laws are understood to be repressions, perhaps necessary, but nonetheless repressions of our inclinations rather than perfections of them or modes of satisfying them….

———————————-

My Original Question:

Why does anarchism arise from this?

Asking not arguing.

How is law to be understood as perfecting our inclinations or as a mode of satisfying them, when law stops us doing what we’re inclined to do?

I don’t get that.

——————————

Fuller Text Provided:

….The first reaction to the self’s maladaptation to society, its recalcitrance to the rationality of preservation and property, is the attempt to recover the self’s pristine state, to live according to its first inclinations, to “get in touch with one’s feelings,” to live naturally, simply, without society’s artificially generated desires, dependencies, hypocrisies. This side of Rousseau’s thought that arouses nostalgia for nature came to the United States early on, in the life and writings of Thoreau. Recently, joined to many other movements, it came to full flower and found a wide public. Anarchism in one form or another is an expression of this longing, which arises as soon as politics and law are seen to be repressions, perhaps necessary, but nonetheless repressions of our inclinations rather than perfections of them or modes of satisfying them. For the first time in the history of political philosophy, no natural impulse is thought to lead to civil society, or to find satisfaction within it. Yet those who first drew the distinction between nature and society (which obviously means society is of human making, not in any way natural), thought that the preference would immediately be and without hesitation for society. As a matter of fact, the distinction was made in order to emphasize how desirable society is, how fragile man’s existence naturally is, and thus to extinguish those passions based on imagining that protection comes from nature or God, that rebel against civil society. Man, if he is sensible, separates himself from nature and becomes its master and conqueror. This was and still is the predominating belief of liberal democracies, with their peace, gentleness, prosperity, productivity and applied science, particularly medical science….

——————————-

My Further Questions And Comments

Something here is just a touch unclear to me, apart from not seeing how here my second question is answered. I do see now how Rousseau’s idealization of the natural man, which rejects political authority and laws, can be seen as anarchic.

I don’t see in this page the answer to my second question, only the assertion that raises it.

Bloom says, I think, Rousseau’s romanticism marks the first rejection in political philosophy of the idea that our natural impulses lead to civil society and our fulfillment within it. 

Those who counter posed the state of nature and the state, meaning the latter is man made not natural, had thought our immediate preference would always be the state and our satisfaction within it. 

The distinction is meant to exemplify our precariousness in nature 

and to drive out those “passions” that have us “rebelling” against our life in the state, which is to say, civil society. 

Sensible men put their stock in the state, detach themselves from nature and master it, “conquer it,” the predominant belief in liberal democracies, with their litany of benignities. 

So two things:

1: My second question still stands: in civil society don’t we repress, suppress our natural drives to conform to its laws and conventions, rather than satisfying them within it?

2: My slight unclarity, is Bloom gently twitting liberal democratic benignity or unreservedly praising it? He seems detached from his description of it, as if mildly mocking it. But maybe I’m mistakenly reading that into it. 

And:

I imagine/remember an answer to my “second question:” our drives are fulfilled and satisfied to the highest order by civilizing them, on the idea of the erotic perfecting itself in our highest actions, say sex ennobled in marriage or our  highest action, doing philosophy.

—————