I was hoping for something more, but the approach -- questions for both sides -- is a good start.
How about this: present each side in a light that someone on the other side would find compelling. This is a strategy that good history teachers take in presenting controversial figures and movements from our past.
I was hoping for something more, but the approach -- questions for both sides -- is a good start.
How about this: present each side in a light that someone on the other side would find compelling. This is a strategy that good history teachers take in presenting controversial figures and movements from our past.
I should state from the beginning my own bias. I think Roe v. Wade was a sensible step -- Casey was a further step -- toward a better societal approach toward abortion. We need to move beyond Roe and Casey, not go back to before Roe and Casey. Use of the criminal sanction (i.e. "bans") to deal with abortion is societal incompetence, and an abuse of the law.
Abortion terminates life. It's wrong. I like to think that my own life began as a gleam in my parents' eyes, even before conception. I like to think that the reason for being of the entire cosmos is so that a child would be born and love its mother.
What can society do to support and encourage carrying to term life once begun? The problem is practical, not theoretical. Taking a principled view -- it's about life; it's about autonomy -- avoids the practical realities. Fundamentally, this is a human problem not a legal problem. Why does it make any sense to treat it as a legal problem, "legalize" it or make it "illegal"?
Let me take a small detour before continuing. For those who have actually read the Roe opinion, Roe did not "legalize" abortion. Roe constrained the power of the state to interfere with a pregnant woman's decision. The issue was the use (and abuse) of state power, a perspective which was lost in the hype about "legalization". The reason this perspective remains important is that there is a difference between ends and means. Making abortion "illegal" stops the conversation. Should not society carefully consider the means used to achieve the desired end of carrying life to term? Roe used a rather crude timeline to constrain the use of state power -- first trimester, nothing; second trimester, regulation of the doctor; third trimester (viability), prohibition -- so it was but a first attempt to take into account the complex reality of mother and child as one until birth.
The public discourse has essentially lost the valuable perspective taken by the Supreme Court in Roe. We have the spectacle of a myopic preoccupation with whether abortion should be "legal" or "illegal". Is that even the right question?
The complex reality of mother and child as one during pregnancy can be illustrated by imagining that they are not one. Picture this: a nursemaid is pushing a stroller. Inside the stroller is an unborn child, encased in a womb. The life and welfare of the unborn child is paramount. Out of concern that the nursemaid -- whose womb is in the stroller -- may choose an abortion, the state takes responsibility for the womb. Once conception has taken place the nursemaid is just a hireling.
A simplistic view would use this fiction to characterize the pro-choice faction as being outraged that the pregnant woman is being taken as a mere nursemaid, a hireling. But this characterization might give pause to the pro-life faction. Is it really just about the life of the child? Conversely, the image of a nursemaid as caretaker for a life not her own might give pause to the pro-choice faction. Is it really just about the woman's body?
This fictional separation might also give pause to legislators who are still thinking in terms of "legal" and "illegal". Instead of the state taking eminent domain over the womb, perhaps it makes more sense to support the caretaking role of the nursemaid. The "legality" of abortion seems an inadequate focus for legislative attention. If the legislature keeps the whole picture in full view -- which is the point of the fictional separation -- the underlying problem is no longer simple. If the problem were likened to brain surgery, dealing competently with it would require a scalpel rather than a meat cleaver. Focusing on "legality" is like using a meat cleaver for brain surgery. By comparison, Roe v. Wade used a scalpel.
Which returns me to the law, and its abuse. Using a meat cleaver in these circumstances is an abuse of the law. As a society we can do better. Rather than overturn Roe and Casey the Supreme Court should move beyond Roe and Casey. Why is a timeline (trimester or otherwise) and viability proper bases for regulating state intervention in this complex reality? Meat cleavers should be forbidden. Minimum competence for state intervention should require grasp of the whole complex reality -- nursemaid, womb, and child in one. The Mississippi statute at issue in Dobbs fails this test.
One last point. Alito's draft opinion does not portend well for the rule of law. It is not simply the spectacle of this women being treated radically differently from one state jurisdiction to another. If Alito's draft is given five votes there will be strongly reasoned dissents, and these dissents are likely to become law at some point in the future when the composition of the Court changes. It is not lost on anyone that these five votes are the product of determined politics by the pro-life movement over many decades. Good lawyers and good judges have different views on the subject. It is not a question of bias on the part of any justice. The bias lies in the political process for selecting justices.
The prospect of Dobbs itself being reversed at some point even decades or more in the future by a differently composed Court -- particularly if Dobbs cuts its own stare decisis throat by overturning a fifty year old precedent -- is surely on the minds of the present Court. For that reason I doubt that Alito's draft will become the Court's opinion.
But we will see. In the event that Alito's draft does not become the majority opinion it will be interesting to see whether the Court simply avoids expressly overturning Roe or whether it finds a way to move beyond Roe and Casey, in the direction of a better scalpel. I'm not holding my breath -- this is an exceedingly difficult problem -- but our society deserves better than the meat cleaver approach we are likely to get from state legislatures that simply want to prohibit abortion.
Fine, but if you want to get technical, neither is overturning Roe making abortion "illegal." Not even a little. It's remanding it to the states. Now if you don't think it should be decided on a state-by-state basis - because some states will make it illegal - that's fair. A lot of pro-lifers, ironically, don't think that's right either, btw. From a pro-life perspective, why should it be legal to kill a baby in Massachusetts, and not in Arkansas? Is that fair to the baby in Massachusetts? Which is not a completely frivolous moral inconsistency protestation. But what I don't get, in your otherwise supple approach, is how does the meat cleaver vs. scalpel distinction actually work itself out on the ground? What would that actually look like and is it even possible? At some point, do lines not actually have to get drawn? Or undrawn? Aren't these absolutes we're speaking of? (Either it's a life, or it's not, and you can either take it, or you can't?) As you yourself just said, "Abortion terminates life. It's wrong." So why play semantic games? What does it look like on the ground to address the "wrongness"? Because as I had Randall do in my piece, he addressed many of the other societal concerns. Which are real concerns, admittedly. But if a law becomes a law, or 50 laws become the law, a lot of other hard realities get dried in cement. So what should that look like?
I was hoping for something more, but the approach -- questions for both sides -- is a good start.
How about this: present each side in a light that someone on the other side would find compelling. This is a strategy that good history teachers take in presenting controversial figures and movements from our past.
I should state from the beginning my own bias. I think Roe v. Wade was a sensible step -- Casey was a further step -- toward a better societal approach toward abortion. We need to move beyond Roe and Casey, not go back to before Roe and Casey. Use of the criminal sanction (i.e. "bans") to deal with abortion is societal incompetence, and an abuse of the law.
Abortion terminates life. It's wrong. I like to think that my own life began as a gleam in my parents' eyes, even before conception. I like to think that the reason for being of the entire cosmos is so that a child would be born and love its mother.
What can society do to support and encourage carrying to term life once begun? The problem is practical, not theoretical. Taking a principled view -- it's about life; it's about autonomy -- avoids the practical realities. Fundamentally, this is a human problem not a legal problem. Why does it make any sense to treat it as a legal problem, "legalize" it or make it "illegal"?
Let me take a small detour before continuing. For those who have actually read the Roe opinion, Roe did not "legalize" abortion. Roe constrained the power of the state to interfere with a pregnant woman's decision. The issue was the use (and abuse) of state power, a perspective which was lost in the hype about "legalization". The reason this perspective remains important is that there is a difference between ends and means. Making abortion "illegal" stops the conversation. Should not society carefully consider the means used to achieve the desired end of carrying life to term? Roe used a rather crude timeline to constrain the use of state power -- first trimester, nothing; second trimester, regulation of the doctor; third trimester (viability), prohibition -- so it was but a first attempt to take into account the complex reality of mother and child as one until birth.
The public discourse has essentially lost the valuable perspective taken by the Supreme Court in Roe. We have the spectacle of a myopic preoccupation with whether abortion should be "legal" or "illegal". Is that even the right question?
The complex reality of mother and child as one during pregnancy can be illustrated by imagining that they are not one. Picture this: a nursemaid is pushing a stroller. Inside the stroller is an unborn child, encased in a womb. The life and welfare of the unborn child is paramount. Out of concern that the nursemaid -- whose womb is in the stroller -- may choose an abortion, the state takes responsibility for the womb. Once conception has taken place the nursemaid is just a hireling.
A simplistic view would use this fiction to characterize the pro-choice faction as being outraged that the pregnant woman is being taken as a mere nursemaid, a hireling. But this characterization might give pause to the pro-life faction. Is it really just about the life of the child? Conversely, the image of a nursemaid as caretaker for a life not her own might give pause to the pro-choice faction. Is it really just about the woman's body?
This fictional separation might also give pause to legislators who are still thinking in terms of "legal" and "illegal". Instead of the state taking eminent domain over the womb, perhaps it makes more sense to support the caretaking role of the nursemaid. The "legality" of abortion seems an inadequate focus for legislative attention. If the legislature keeps the whole picture in full view -- which is the point of the fictional separation -- the underlying problem is no longer simple. If the problem were likened to brain surgery, dealing competently with it would require a scalpel rather than a meat cleaver. Focusing on "legality" is like using a meat cleaver for brain surgery. By comparison, Roe v. Wade used a scalpel.
Which returns me to the law, and its abuse. Using a meat cleaver in these circumstances is an abuse of the law. As a society we can do better. Rather than overturn Roe and Casey the Supreme Court should move beyond Roe and Casey. Why is a timeline (trimester or otherwise) and viability proper bases for regulating state intervention in this complex reality? Meat cleavers should be forbidden. Minimum competence for state intervention should require grasp of the whole complex reality -- nursemaid, womb, and child in one. The Mississippi statute at issue in Dobbs fails this test.
One last point. Alito's draft opinion does not portend well for the rule of law. It is not simply the spectacle of this women being treated radically differently from one state jurisdiction to another. If Alito's draft is given five votes there will be strongly reasoned dissents, and these dissents are likely to become law at some point in the future when the composition of the Court changes. It is not lost on anyone that these five votes are the product of determined politics by the pro-life movement over many decades. Good lawyers and good judges have different views on the subject. It is not a question of bias on the part of any justice. The bias lies in the political process for selecting justices.
The prospect of Dobbs itself being reversed at some point even decades or more in the future by a differently composed Court -- particularly if Dobbs cuts its own stare decisis throat by overturning a fifty year old precedent -- is surely on the minds of the present Court. For that reason I doubt that Alito's draft will become the Court's opinion.
But we will see. In the event that Alito's draft does not become the majority opinion it will be interesting to see whether the Court simply avoids expressly overturning Roe or whether it finds a way to move beyond Roe and Casey, in the direction of a better scalpel. I'm not holding my breath -- this is an exceedingly difficult problem -- but our society deserves better than the meat cleaver approach we are likely to get from state legislatures that simply want to prohibit abortion.
Fine, but if you want to get technical, neither is overturning Roe making abortion "illegal." Not even a little. It's remanding it to the states. Now if you don't think it should be decided on a state-by-state basis - because some states will make it illegal - that's fair. A lot of pro-lifers, ironically, don't think that's right either, btw. From a pro-life perspective, why should it be legal to kill a baby in Massachusetts, and not in Arkansas? Is that fair to the baby in Massachusetts? Which is not a completely frivolous moral inconsistency protestation. But what I don't get, in your otherwise supple approach, is how does the meat cleaver vs. scalpel distinction actually work itself out on the ground? What would that actually look like and is it even possible? At some point, do lines not actually have to get drawn? Or undrawn? Aren't these absolutes we're speaking of? (Either it's a life, or it's not, and you can either take it, or you can't?) As you yourself just said, "Abortion terminates life. It's wrong." So why play semantic games? What does it look like on the ground to address the "wrongness"? Because as I had Randall do in my piece, he addressed many of the other societal concerns. Which are real concerns, admittedly. But if a law becomes a law, or 50 laws become the law, a lot of other hard realities get dried in cement. So what should that look like?