May 4, 2022 - 10:20am
Yesterday a draft opinion was leaked from the US Supreme Court, concerning the Dobbs v Jackson Women’s Health case: one that has the potential to overturn the cornerstones of US abortion law, effectively ending the federal ‘right’ to legal abortion.
The news has caused pandemonium, and no wonder. In effect it would undo America’s national consensus — however contentious this has historically been — on the sexual revolution. If this happens, it will force a shake-up of entrenched views on both sides of America’s political aisle concerning both the social meaning of sex and difficult questions of ‘personal responsibility’ versus wider societal obligations to mothers and babies.
The old-fashioned “patriarchal” sexual mores which arose prior to the sexual revolution encouraged (and often shamed) women to withhold sexual access except in the context of long-term male commitment. The sexual revolution offered a technological fix, in the form of birth control, promising to level the playing field so women could play it just like men. Then, as Erika Bachiochi has shown, this created an inexorable ratchet toward legalising abortion — simply because no method of birth control is fool-proof. And this radically transformed social and sexual norms.
One often-cited study, for example, shows how legalising abortion drove a sharp drop in the previously widespread norm of ‘shotgun weddings’. In turn, this resulted in rising single motherhood among women pressured into extra-marital sex with un-committed men, but who still balked at abortion when faced with unwanted pregnancy.
Most women, regardless of where they stand on abortion, recognise that you can’t have a liberal sexual culture for both men and women without a backstop in the case of accidental pregnancy. Accordingly, the news that abortion might be under threat prompted a wave of pro-choice calls for women to go on sex strike. As one put it: “If we can’t get pregnant now, guess we’re not having intercourse with men anymore!”
It rarely seems to occur to such individuals that this is functionally indistinguishable from the ‘abstinence’ promoted by social conservatives, regardless of how often the conservatives themselves point it out. In turn, this underlines the fact that the sexual revolution — commonly thought of as a moral transformation — was a material and medical one first.
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SubscribeThat the USA’s position on abortion was decided by a Court and not a legislature poisoned the debate for five decades. Assuming that SCOTUS does overturn Roe-v-Wade, the issue will return to the legislatures which is where it should have been all along.
Amen – the issue of whether abortion is the taking of an innocent life (etc) would return to the states as a political issue, where it was before 1973 (Roe). Before 1973 it was legal to get an abortion in New York, and after 2022 (if Roe is overturned) it will still be legal in New York (and about 15 or so other states , to varying degrees).
So Mary (my favorite writer at UnHerd) saying things like “ effect it would undo America’s national consensus ” is meaningless in our Federal system- in New York and California (and my erstwhile State of Illinois) there are likely many more than 60% of people who would legalize abortion, whereas in Alabama it is probably way less than 50%.
So there will be no “reckoning” about positions – people in the various States will lobby for and against permitting all or some (etc) abortions in those States.
Finally, it needs to be emphasized that Roe would be overturned because it was a terrible decision (not at all based on the constitution, precedents and applicable laws). It was stupidly decided out of thin air – even Ruth Bader Ginsberg emphasized how badly decided Roe was.
It is not clear to me that this is so. The Court’s proper function is to protect the rights of the individual against the excesses of majoritarian decision-making. If it is the case that abortion rights are properly understood as falling within the remit of the those Case covered by Article III, Section 2 of the Constitution.
Whether or not the judiciary is empowered to rule on abortion reposes on a careful reading of this Section, and of the 14th Amendment (Section 1).
I think Justice Alito’s opinion (the draft we have from February) concludes in laborious detail that the Judiciary is NOT so empowered . If the opinion and the 4 other Justices who have signed on to it hold, then Roe (which found such jurisdiction) will no longer apply. So the state of play will be the same as pre-1973 – each State decides what are crimes in that State and what are not
Alito’s reasoning is not above question
The Courts proper function is to uphold the law. It has no free wheeling mandate to create or protect whatever asserted rights of individuals it may decide to recognize or may be claimed. If the court should so act it then becomes a Super Legislature or Constitutional Convention rather than as a court upholding the law. The Court then acts outside its Constitutional role and pre-empts the role of the Legislature. Recognizing these limitations is important for a court to serve its proper role in a democracy. The majority is supposed to be able to express itself in the political process subject to clearly defined understood rules expressed in the Constitution. Efforts or actions by the Court refusing to abide by these laws undermines the standing of the Court and the entire Constitutional/political system.
The Court’s proper function is to ‘interpret’ the law, not uphold it. Upholding the law is the proper function of the executive. ‘Writing the law’ is the proper function of the legislature.
But interpreting the law means determining whether or not certain guarantees and protections for the individual within the 14th Amendment are sufficiently in evidence for this issue in order to justify a decision at Federal level. In essence, the debate is a balance between, on the one hand, Article III, Section 2 + 10th Amendment, which go in the direction of overturning Roe, and the 14th Amendment on the other, which goes in the direction of upholding it.
My only point is that to portray this as a “democracy versus civil rights” issue is to entirely miss the point. This is a “Federal versus States” issue.
Well, yes. Tell me again about those ‘..clearly defined understood rules expressed in the Constitution..’ – if that were a good description surely you wouldn’t need SCOTUS? The Court’s proper function is not to ‘uphold’ the law, but to interpret it where others differ, surely?
For those of you not in the US, the fundamental concept of democracy is the competition of ideas (sometimes called policies, viewpoints, etc.). When legislatures are peopled with those who are elected by a popular vote, presumably it is because more people than not felt that individual represented their “ideas”. Thus, for many years…up until the late 70’s and early 80’s, the US see-sawed back and forth from conservative to liberal and back again, as the electorate picked and chose between various competing ideas.
The reality was: if you couldn’t convince the majority of voters that your ideas were the best, you lost. Debates, political advertising, interviews, media reporting were more (not exclusively but more) focused on the debate between ideas and less about personalities.
But all that changed when the liberal element in this country began to understand the power of the courts to legislate from the bench. Gradually a means of getting your view/idea enshrined in a court decision evolved, making it law equal with, and in some cases superior to laws passed by legislatures. Unelected judges were free from the constraints of popular pressure to exercise the power to establish what they felt was “right” or “good”.
Obviously, the more democratic process was dominated by yokels (I myself being chief among them) who equally obviously don’t know what is good for us. Liberal activists and liberal judges were more than willing to fill that vacuum. Law by court ruling became a staple of the liberal agenda under the mistaken assumption that once an opinion was rendered, it could not be “voted out”. It never occurred to the intelligentsia that the make-up of courts might actually change and in the case of bad legal precedence “stare decisis” could be reset.
This is where we are now. Us yokels managed to get more conservatives on the SCOTUS and it appears to have undone Roe v. Wade.
Having President Biden suggest that Roe v. Wade should be codified by legislative action is an excellent suggestion, because if forces the whole discussion back into the arena of the competition of ideas, which is where it should have been all along.
Liberals, however, decry this as a return to coat-hangers. In reality, no. All the SCOTUS is about to do is admit they were wrong, and put the decision back in the hands of legislatures (and the arena of the competition of ideas) which is where they usurped it from in the first place.
Abortion is not dead. It has actually been elevated to a national debate to be decided by an electorate based on how convincing the arguments can be. That, and for a change, the elite may actually have to listen seriously to the opinions of us yokels.
Small point of fact: in the US, if you are under the poverty line, medical care is essentially free, due to acts such as MEDICAL, MEDICARE, etc. I am not surprised that many people on the other side of the Atlantic don’t know about this, as those who push for “free” health care generally don’t mention these acts.
Indeed, due to being quite poor when my son was born, I took advantage of these services. And this was a major catalyst to get my sh*t together, make real money and move on with my life, for, as, with any “free” service, you get what you pay for.
Correct. No person in the U.S., including illegal aliens, who manage to slip across (now they simply walk across) the southern border, is denied world-class healthcare completely free of charge when they enter the emergency room of a U.S. hospital. All courtesy of the hateful and selfish American taxpayer.
However, those of us who work for a living, and are insured, can often and easily go bankrupt in order to pay for our healthcare.
What of the poor that are struggling, have jobs that don’t provide healthcare insurance? Having a birth with complications could easily send them bankrupt
If they are truly poor then they are covered by Medicaid, unless they are married to a poor man. Then they are not covered until they divorce. Hence the staggering single parent birth rate in the poor community in the US. You can thank the Democrats for that. Gotta keep them dependent and thier kids trapped in the government jobs program otherwise known as inner city public schools.
So much misinformation here. Medicaid does cover the extreme poor to some extent, although no where near most other OECD country levels. But the working poor – people who have low paying jobs with no benefits, are not eligible for Medicaid and don’t have health insurance and so are in real financial trouble when they have health issues. Anyone who is not in the top 20-30% economic brackets can face bankruptcy from excessive medical bills even if they have health coverage of some sort. Medicare is for over 65. Plus US Public Health system is for the shit. There is a reason the US is an OECD outlier – spending far more per capita on healthcare with the worst child mortality rate, highest maternal death rate and relatively low life expectancy. Tl:dr US healthcare system is the worst in the developed world while being the most expensive. Given it’s third world level infant mortality, Having more woman forced to have babies is pro-death, not pro-life.
“Insurance-based healthcare means the uninsured — who are likely so because extremely poor — face either a $100k bill for having a baby or giving birth unassisted.”
Poor women are fully covered by Medicaid as are their children. Seriously, my cousin has three kids, three fathers, all before 25 and pays zero for their care. They all have regular pediatric visits. Her prenatal visits, vitamins and ultrasounds were all 100% taxpayer covered.
The middle class in America is screwed when it comes to health care. They make too much to get government benefits and too little to pay for health care.
Although, if the leak is true, there is going to be much controversy, one should not overstate the results of a reversal of Rowe vs Wade. The legislative power will return to individual states and many, perhaps more than half, will keep the position as it is. And there is no illegality in travelling to seek an abortion, although much inconvenience.
I’m not sure that the decline in shotgun weddings was due to the rise in abortions. Some of the decline maybe, but it was in an era when the number of weddings declined anyway, and greatly loosened their linkage with childbirth
Welfare greatly expanded to allow women to use the state to provide, albeit poorly, but when your legit prospects weren’t much better it’s the route many took.
Marriage and two parent families have become a luxury belief in the US.
The study cited was written by Janet Yellen (yes, the same Federal Reserve Janet) and her husband in the mid-90’s. It found a negative correlation between abortion rates and shotgun marriage. The correlation follows many similar societal trends regarding increased anti-social behaviors ever-increasing throughout the 70’s and 80’s. John D. Mueller’s “Redeeming Economics” is a very enlightening read in this respect. The negative societal impact of abortion policy is rarely considered or generally ignored. Mary’s assessment aligns with socio-economists Jonathan Blink and Phillip Levine; when the cost (restricted abortion policy) of conception behavior rises, couples in general adjust behavior and pregnancy rates fall.
Poland is a good example of country that went from a liberal to restricted policy and has not seen a pregnancy rate, Maternal Mortality and Morbidity, or child mortality rise. The U.S has a host of other health variables that amplify MMR, although a number of women die from complications related to their legal abortions every year in the U.S.
This piece is a bit overwrought. All the SCOTUS decision will do is move the power to make laws about abortion technical details to the state legislators, who the people elect. Certainly, in some states the time limit will be set too low for my tastes. In others such NY and CA the current time limit via RvW will actually be relaxed. Don’t expect much change in abortion rates or significant increases in back street abortions. The poorest pregnant birthing-person will be able to buy, or more likely get free, a bus ticket to the nearest abortion on demand state.
Its also worth noting that according to CDC 93% of abortions were at <13 weeks and the MS law in the SCOTUS case allows abortions to 15 weeks.
Re: But pro-choice feminists are also justified in noting the existence of conservatives apparently happy to hand responsibility for sexual continence entirely to women,
Were shotgun weddings the conservative solution that can’t and shouldn’t return? It did put responsibility for children on the man and woman.
Civil liberties were all but eradicated by the pandemic, and everyone seemed quite content to let that happen. But if you don’t have a right to refuse an experimental injection, to protest the government or to disagree with public health bureaucrats, to go to work, leave your house or cross the border or not wear a filthy diaper on your face, how can you have a right to an abortion? The collective is now fully in charge. The price of freedom was eternal vigilance, and we refused to pay it.
I couldn’t agree more.
Creative interpretation of the law in Roe v Wade enabled politicians to avoid taking positive but controversial decisions. If SCOTUS decides to endorse Justice Alito’s draft judgement the extent to which abortion is allowed will be taken by the peoples’ representatives. Is it better to be ruled by the particular prejudices of SCOTUS in 1973 or by the politicians that are elected? Anyone who favours democracy should chose the latter.
A little game theory could heighten the burden of responsibility about sex. Allow a woman to claim 10% of one year of a man’s annual income if she gets pregnant – even if she has an abortion – unless she is married or in a relationship with that man for 12 or more months. If the money is due to the woman, it’s down to her as to whether she’ll claim it – again about relationships. And DNA will prove who the father is.
In itself it wouldn’t stop anything. However, this would give some women an incentive to use sex to get pregnant, so as to claim the money – particularly if the guy is rich. The game outcome would therefore be that men would either need to take responsibility for protection themselves, or they would need to fully trust the woman, and the quality of the relationship so as not to suffer the risk of financial penalty, since they wouldn’t know if the woman is protected or just saying so.
This removes women’s fundamental right to bodily autonomy in the U.S. It’s hard not to see this as placing women in the position of second class citizens because their right to what happens in their bodies is now up to whatever State they live in. If your State forces you to carry every pregnancy to term without your sayso, you cannot appeal to a Federal right. Some States are even trying to criminalize going out of State for an abortion if you return to your home State. This is evil.
Very well stated. I commented as much on Hadley Freeman’s article, but not as well.
Patriarchy precedes women wanting abortion-on-demand. Why do women give into boring sex w/ males who refuse to use condoms just because they’re so desperate for male approval? Why is the prospect of an unplanned, unwanted pregnancy so terrifying to women, but so easily dismissed by so many men? Where’s the joint effort to PREVENT so many of these abortions rather than on the right, simultaneously preventing easy access to birth control, or on the left, dismissing unwanted pregnancy as a virus or precancerous polyp to be removed?
The under 30s are already having less sex than today’s 50 year olds did when they were young. The trajectory is downwards. That’s before this even happened. i am sure this will only lessen the amount of sex young people are (not) having.
This is complex and hard to predict the direction of this. My guess is that when society has a taste of something, they don’t really want to give it up.
It’s possible that now women for half a century have had the luxury of having good quality sexual experiences from a minority of alphas in a rotation. They may not wish to give this up. So if they can’t technically get out of an unwanted pregnancy (unwanted for whom?), then US society may just become like the French. Paternity testing will become illegal, and married women will have affairs and get pregnant. The alternative is that the vast majority of women will no longer have great sexual experiences (as only a minority of men 1-10% have such capabilities).
So lets say women play ball. Fun is over for the women, and the fun is pretty much over for the men too. People’s main anxiety about sex is conception and the chain of causation. In which society’s culture will have to massively change to one of lowered expectations in life for everyone apart from the super elites. Furthermore, if procreation is tied exclusively to marriage (and therefore economics), it means that society will select less for genetics, resulting in successive increases in mutations and lower genetic quality.
Under roe vs wade. The idea of having extra marital affairs, cuckolding without pregnancy came about. As the fears were gone. So it was just fun, and no socio-economic consequence.
Now with roe vs wade repealed. The idea of having extra marital affairs, cuckolding now becomes akin to crossing the railway line without looking. So on the one hand people will be afraid of doing so, on the other they may still be tempted to do it, and the wife and or husband may rationalise any conception as a natural selection. France has a pragmatic approach to this.
I think society should be taught differently. Telling every man that he is equal has most men confused. We don’t all get the same deal, we’re not equals. Some guys are supposed to get more of the pie, while some guys are supposed to get very little or nothing. You see what happens genetically is that the guys with the bad genetics don’t get to procreate. The next generation is of higher quality, and so therefore more souls on the planet can enjoy a higher performance life experience. Over time all men will be of similar high performance. Instead we keep doing this thing of letting everyone get a shot, and as admirable as it sounds, results in a bigger pool of men born into this world left scratching their heads “Why did my mother take a low quality male? She could’ve done the local very well endowed bull. Sorrow for husband, but awesome for the kid”.
Interesting article. Wondering if the Supreme Court is being overly originalist in its interpretion, and does that have implications for other major findings?
I am not sure how the right to kill an innocent human being can ever be used to support the humanity of the decision maker. At a minimum we should pray that the decision never have to be made and, if the decision is made, that the decision maker(s) ultimately find peace in eternity.
the battle must now be done on a state by state basis. From my study of the history of this subject from Portugal to Ireland, an abortion ban is not sustainable in the long term because of all the legal and medical fallout it causes. In the Prolife states, the voters must see for themselves what the effects of abortion bans are and whether they believe its necessary to continue them. I am confident that they will change their minds after a time, but its going to take maternal deaths from illegal abortion or pregnancy complications plus the mass incarceration of a large number of Women and girls before they change their course.
The day will come in a post-Roe USA when abortion will once again be legal in all 50 states. But it can only come when the nice rhetoric of the Prolife movement hits concrete reality, only when Prolife policies not only don’t work but are VISABLELY seen not to work, than the worm will turn on this subject.
Like interracial marriages and segregation?
The former was legalised and the latter prohibited following protests. You don’t think the same thing would happen for abortion?
62 million human deaths caused by abortion since the decision. How does that measure up to back alley deaths? There will be no return to that because even poor people can drive to other states.
Let’s be pragmatic, “By far the most common reason for abortion is poverty.”. No one wishes miserable people to multiply, especially not conservatives. This debate is a waste of time, solve it with a referendum and accept the results.
Look up the word “stealthing”.