I have some thoughts on the leaked draft of the opinion from Dobbs that suggests how the Supreme Court is poised to overturn the indefensible blots on justice and reason that are Roe and Casey. I don’t think that I want to bang the same drum for days on end, so I want to recap a couple of my high-level thoughts.
The Dobbs draft is an impeccable, masterful decision. It is excellent jurisprudence that is a breath of fresh air in style that is even, yes, occasionally, fun. “Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. Zero. None.”
Opponents of the resulting policy are doing everything but criticizing the opinion itself. The House Speaker’s response stands out as deliciously insane: “Several of these conservative Justices, who are in no way accountable to the American people, have lied to the U.S. Senate, ripped up the Constitution and defiled both precedent and the Supreme Court’s reputation” (emphasis added). This is the sort of deranged lie you count on people to pep rally around even though it’s completely indefensible. Other completely backwards accusations include the idea that this represents an attack on democracy. As the opinion recaps, “Both sides make important policy arguments, but supporters of Roe and Casey must show that this Court has the authority to weigh those arguments and decide how abortion may be regulated in the States. They have failed to make that showing, and we thus return the power to weigh.” Democracy, if I have this right, the a system of government where the people rule; the unelected body of nine lawyers returning to the people a question that never belonged to the lawyers to settle in the first place is a pro-democracy move. There are also the customary batches of euphemisms and misdirections—all of which swirl around the policy outcome, and not on the logic of the argument. This also applies with strong force to the fearmongering about gay marriage—too many pro-abortion folks can see through the headlines about opinion polling about what Americans want about Roe and understand that many Americans do not grasp the meaning of Roe or the effect of its being overturned, and so they’re trying to stoke hatred of overturning Roe by putting not only mandated nationwide nine-month abortion permissiveness on the table but the much more popular idea of guaranteed nationwide gay marriage. It might seem like legally sophisticated canniness to be aware of this consideration—except that the draft in question goes out of its way multiple times to communicate that they consider the abortion topic substantively different. “The Solicitor General warns that overruling [Roe and Casey] would ‘threaten the Court's precedents holding that the Due Process Clause protects other rights.’ [Listing Obergefell, Lawrence, and Griswold]. That is not correct . . . And to ensure our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in the opinion should be understood to cast doubt on precedents that do not concern abortion.” (Reason has a good write-up on this.) Hype that Dobbs presages an overturning of Obergefell is baseless fearmongering, but it’s becoming pretty common. They’re doing all of this because there is no good legal argument to be made against the Dobbs draft. Zero. None.
Some notoriously heterodox conservatives and Christians are responding in . . . different ways. David French usually rankles me for picking enemies that make me question his priorities, but his piece in The Atlantic is a cogent and solid argument about the legal soundness of the leaked draft and the real import of overturning Roe. Independent Utahn and Mormon Evan McMullin, on the other hand, posted a bizarre take hand-wringing about “extreme laws” that amounted to an opposition to even overturning Roe. And then you had Russell Moore of Christianity Today, who wrote a weird piece that makes me feel like I’m reading dispatches from an alternate reality, a country where “Christian nationalism” is a high-priority threat and the prominence of abortion law is an appropriate time to exhort “Let’s be pro-life even if that makes some of our “pro-justice” allies uncomfortable and let’s be pro-justice even if that makes some of our “pro-life” allies uncomfortable.” (“Pro-justice” seems to be his feel-good slogan for an array of socially left attitudes, from the looks of it—to be honest, I don’t recall reading Russell Moore in the past, but the man has hundreds of millions of Google hits, and what I’m seeing here suggests someone who’s deliberately played nice with attention influencers.) You can take the occasion of the leak to reinforce the merits of extending protection from murder to all human beings, or you can … talk about making such advocates uncomfortable. But generally Moore strikes me as a man who plays to feelings in a way that hampers clear thought, a man who welcomes scope creep in a way that invites confusion. He equivocates, for example, using language about “making people invisible” applying both to pro-abortion folks (for whom it is literally true—they hate when people see images of the victims of abortion, whether those images are ultrasounds or photos of the corpse of someone aborted) and to a pro-life event organizer who . . . wanted him to stay on topic and by not monologuing on migrants or race topics. Seriously, he talks about this. Maybe this deserves more space on its own, but there’s something very self-absorbed about this kind of attitude: it hijacks words for their emotional connotations in spite of the actual content of their meaning (e.g. his abuse of “making people invisible”) because his ends justify the means; and that abuse of language is mirrored in, frankly, the scope creep of events or organizations to things outside their realm, whether that’s the event described above, or Disney sounding off about Florida’s Parental Rights bill, or companies like Best Buy and Johnson & Johnson voicing their support for the insidiously named “Equality Act.” (It might be evil when Amazon announces they’ll fund their employees’ expenses when they travel for healthcare or for abortion, but at the very least there’s a rational connection to human resources and company policy.) This general attitude that destroys distinctions exudes compassion, but it derives from a perspective that what is important to you is what is important period, and blindsiding people through a misuse of language (a shared thing) or events or organizations for other purposes is nothing to feel responsible for.
The religion thing: lots of people are chattering about how people want to impose their religious values on other people and the entire conversation is really blinkered. Look. Lots of people, many religious and many not, think murder is wrong and should be illegal. Plenty of people, many religious and many not, recognize that babies are human beings before they have moved outside of the womb and that therefore legal protections from murder should apply to them too. If someone is religious, say Christian, then that entire attitude probably stems from a belief that people are the creation of God that bear the image of God, whom He sacrificed His Son to save the souls of, explicitly telling us not to murder them and to show compassion. But you can also not believe that and still think that murder is wrong, that homicide laws are necessary public policy, and that there is no reason good enough to deny their protection to a subset of the population. This isn’t hard, and anyone prattling about anything more complicated than this is just trying to muddy the waters to confuse people about that basic truth.
The whole post-birth social policy issue: Evan McMullin also commented, “Data clearly show that making contraception more available and otherwise doing more to support families is what truly protects the lives of . . . the unborn.” This is missing context, at best. The fascinating blog SlateStarCodex once looked at data across societies and came to the synthesized conclusion, “Contraceptive and abortion rates often rise simultaneously. This rise is not necessarily causal, and is more likely to be due to both being parts of the same philosophy – people want to have lots of sex but not have kids. As this philosophy becomes more widespread, as it has nearly everywhere in the 20th century with the Sexual Revolution and Demographic Transition, both contraception and abortion will rise . . . It is unclear to what degree the availability of contraception itself causes the rise of this philosophy . . . On the other hand, once a society has undergone this transition and settled on ‘lots of sex, few kids’ as being its dominant values, then the local application of more contraception seems to decrease abortion rates. We know this because of the surveys of abortion patients saying they are disproportionately likely not to be contraceptive users.” The one important caveat I would add (and it addresses more an implication than an overt misstep) is that the changes he writes about are spoken of as though they’re irreversible and perhaps inevitable developments. That may or may not be true; but positing a world, or at least a culture, that addresses the root causes of so much of what prompts abortion rather than offering an ever-expanding list of Band-aids for the problem—is a good thing. And hailing from the state of Utah as he does (the best counterexample to the idea that these trends are unavoidable), McMullin does everyone a disservice by speaking like those trends are a given.
I don’t know what the New York Times’ official line is these days on how impartial or objective they are, but their morning newsletter yesterday included the following reads under “Opinions: Abortion”:
Post-Roe America will be a worse place to live, Michelle Goldberg says.
The leaked ruling opens the door to dismantling marriage equality and other rights, Roxane Gay argues.
Roe was a bad decision. But overturning it would be, too, Bret Stephens writes.
Ross Douthat weighs the possible motives of the leaker, concluding it was likely a liberal.
Their Tuesday morning featured a less egregious ratio of 2:1 pro-abortion:pro-life, but something tells me that there’s some news fit to print that isn’t wildly pro-Roe.
Those are the thoughts I’ve had a hard time getting out of my head. Every time abortion catapults to the front of the national conversation it’s a disorienting experience because people not only speak from such wildly different worldviews from mine, but they do so in the most strident and unreflective terms as though there is no other rational way to process the situation. It mostly serves as a sober reminder that, for all of America’s and the West’s virtues, there are a lot of lost souls in this country whose thinking is just completely warped.
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Also I forgot to add yesterday, amidst the flurry of details about Potassium, that a new way of making potash was the occasion for the first patent issued by the US, back in 1790, signed by President George Washington and everything.