In my GovPolitics class yesterday, I went through Roe v. Wade, the actual decision, and let them know it is likely going to be overturned or decimated for the most part, but at least let's give Justice Blackmun and the Supreme Court in 1973 a chance to explain themselves. To set up the reading we did together, I opened by showing the class what we had analyzed generally before, which is the first section of the 14th Amendment. The section begins "All persons born or naturalized..." I asked, since we know the word "naturalized" applies to immigrants, in the determination of rights between the mother and the fetus, who does the 14th Amendment protect and not protect? Kids laughingly said, It only protects the mother! Yeah, I said. Yeah, the mother--well, at least primarily, as we will see. I then mischievously added: I would find intriguing an argument that said, maybe Congress could theoretically pass a law interpreting "naturalized" to mean a fetus, and we can see what would happen with a court of the type we have now in the US Supreme Court. That would be fun, right? But would that be a good faith definition of "naturalized," I asked? No, not so much.
I then said, let's put the Roe decision up on this projector, so we can read along. Let's start with the trimester and viability stuff in the decision, since that took so much of the oral argument time on Wednesday at the US Supreme Court, which is considering an essentially anti-abortion Mississippi law. I then explained how the trimester argument was not about constitutional principle, as in "Where does the Constitution talk about 'trimesters,' huh?" I said the trimester system was largely, but not completely based upon the American Medical Association's brief filed with the US Supreme Court during the time the Roe case was pending, which discussed the ranges in which a fetus can become viable, that is protected outside the womb to complete development through medical technology. I explained the trimester system is therefore simply an application of a principle to advise the public about how to delineate when a woman's right to abort ends and a fetuses' life could be allowed to begin so as to limit a woman's right to an abortion. It was expressly intended to be what the more conservative oriented Justice Sandra O'Connor somewhat snarkily called a "moving target," meaning it changes with the developments in medical technologies. So, if we can eventually remove a zygote safely from a woman's body, and place the zygote in a special incubator and keep the zygote growing till birth, a woman, under Roe v. Wade's own holding, can't say, "Kill the zygote no longer in my body!" I said, isn't that funny that one can say Roe v. Wade is actually pro-fetus to at least a decent extent? Funny, right. Lots of smiles in recognition on that one.
Anyway, I then quoted Oliver Wendell Holmes, Jr.'s famous statement, The life of the law is not logic, but experience, and briefly explained how jurisprudence--writing a court decision essentially--is about enunciating a principle, and providing a way for others to apply the principle using our lives' experiences. Then, I said, this is why I really like the jurisprudence of Roe v. Wade, contrary to Justice Ruth Bader Ginsburg who said, for years, even before she became a Supreme Court justice, how bad the decision was from a lawyer's or judge's perspective.*
I then switched over to the Casey case, from 1992, where the US Supreme Court got rid of trimesters and went to the standard of "no undue burden on the woman wanting an abortion." I asked, Do you think that is more clear or less clear a standard than trimesters? Everyone said the Casey standard was less clear. I then showed them Blackmun's concurring opinion in Casey where he said, with no other justices bothering to contradict him, nothing had really changed since Roe in the medical technology for fetuses. Funny, I said, right? So many so-called smart people and we continue to see how the Court Justices are so, well, "political" while beating up on poor Blackmun for supposedly being "political."
Then, I went back into the Roe decision, again projecting it through a projector so the kids could read along, and read parts of the decision regarding how (1) ambiguous the abortion legacy is within the Catholic Church, with the church not really congealing completely against all abortions until the late 19th Century, just after the American Medical Association had pronounced opposition to all abortions as morally wrong and too dangerous for women to undergo, (2) ambiguities about abortion in other religions, including the ones who invented God--you know, JEWS--and the British common law, which both allowed abortion until the first kick or quickening, which was three months and up to four months into the pregnancy; and (3) local prosecutors in English law, and largely true among American prosecutors in the 1700s and early 1800s, rarely brought abortion prosecutions against women or doctors because they sorta wondered whether abortion is something different than one guy knifing another in a bar fight--though some commentators have said it is because medical technology couldn't tell so easily the difference between a miscarriage and abortion. I showed them the section of Roe describing how abortion laws in the 19th Century initially developed more to protect women than fetuses, but how fetal protection became much more pronounced after the AMA report was released in the late 19th Century. All through that time, abortions were dangerous procedures for women to undergo. By the 1950s, though, an early-term abortion was essentially as safe or sometimes safer for a doctor to perform on a pregnant woman than childbirth. That means one of the main or primary reasons for abortion laws, that is protecting a woman born or naturalized in the United States, was no longer as, well, viable, due to what, again, oh, yeah, medical technology.
I then took a side-step to discuss Griswold from 1965, which established the right to privacy implied in the Constitution, and how Justices Scalia and Thomas took the position that you can't overrule Roe without overruling Griswold, which both wanted or want to do. I said it will be interesting to see if the five or six justices so hellbent on reversing Roe will face what Thomas and Scalia are saying, and wipe out the right to privacy as a constitutional right. I asked them, show me how many of you think the Constitution should not protect your general right to privacy. No hands went up, not even among the ones I suspected were anti-abortion. I said, See? Sort of a problem there for some of us at least. You may want to outlaw abortion, but I still think a woman's body is pretty private from the claws of state and federal law, at least I think so.:).
I then said let's go through Justice Rehnquist's dissenting opinion in Roe, and how he was not on board to overrule the right to privacy, compared to say Scalia or Thomas. Rehnquist said, if a woman goes to the doctor or hospital for an abortion, then it's not private, so we can save Griswold and keep abortions illegal if states want to do so. But, even Rehnquist later realized that is not accurate as an analogy, as going to pharmacy and asking for contraceptives over the counter is not private, either. Rehnquist, and the other dissenter in Roe, Justice White, admitted to being overwhelmed by the marshaling of historical, medical, and anthropological evidence, which I told the students was odd because a smart historian could actually attack some of the historical and other interpretations Blackmun cited in Roe. I said the anti-Roe forces got much better in deciding to show where one of the main authors of two law review articles on abortion history, a guy named Cyril Means, who was a pro-abortion advocate lawyer, was misleading in some of his abortion laws in history. Blackmun cited him by my count at least four times in Roe. I think there was a lot of polemics in Means' law review articles, and now, one may read equally polemical histories that go the opposite way, and which attack Means' analysis. We can expect to hear a lot about this in right wing media, at least. I would still say there is much merit in Means' analysis, particularly regarding the common law, Jewish law, and much of Catholic legal history. I also think the majority of anti-abortion laws that were passed in the late 19th Century were highly influenced by the AMA report, so that their fervor about protecting fetuses should be recognized to be in the context of abortion being so dangerous to a point that a woman undergoing an abortion could be seen as being manipulated into risking death--so the fervor in the legislative intent is different than our time, where concern for the "unborn" takes on a religious, not medical use of language. What I like about the attacks on Means' analysis is what I have said multiple times throughout the semester, which is when making a counterargument, always try first to attack the other sides' premises. It allows you to tell a different story. :)
The final document I showed them was a page from the Congressional Record where a senator arguing for the 14th Amendment, said that, above and beyond (1) the protection of what were then called "Negroes" from discriminatory treatment, and (2) having national rights for all persons born or naturalized in the US, the then proposed amendment is supposed to give "uninterrupted enjoyment of his life, his limbs, his body, (and) his health..." That's a wow. There is another page from the record where a congressman said the purpose of the 14th Amendment is, in addition to the two main items of protecting African-American rights and creating individual rights from being a citizen of the federal government (the United States) is to protect the right to marry and have kids if people want to do so. (See this piece from The Atlantic where these are cited, too).
So, wait a minute. Do those quotes from congressmen at the time mean there are possibly rights under the 14th Amendment not to bear a child? Could be. Maybe. However, I added, we need to consider how, just after the 14th Amendment was ratified in 1868, our nation saw a spate of new anti-abortion laws passed in states that said protect the fetus and not just the mother---and nobody was citing to the 14th Amendment at that time. In fact, the first glimpse of a right to privacy doesn't show up until a dissenting opinion in a US Supreme Court in 1891, and doesn't get direct support as a holding until, well, Griswold in 1965. This is again why it is important to challenge premises of those with whom we disagree. But, original intent can be tricky for doing what we may decide to realize later is suddenly so correct. For example, I said, how many people know there were racially segregated schools at the time of passing the 14th Amendment, and yet it took nearly 70 years for the Supreme Court justices to decide segregated schools now violated the 14th Amendment in Brown v. Board of Education (1954). This was part of the December 1 oral argument regarding the Mississippi ant-abortion law, and it was not pretty on anyone's side--though I would say, are you right wing Justices really so damn sure the Founders or the 14th Amendment framers, with modern technology and an understanding of a right to privacy, would feel as strong morally in overturning Roe v. Wade? But, ah, history is sure complicated, isn't it?
I said a couple of times during all of this, If you still want to be religious with respect to protecting other women's fetuses, go right ahead. At the end, I asked, in my most friendly way, as these are high schoolers after all, If you have any reason to say I missed some good anti-abortion argument, or say, "Mr. Freedman you are full of it because...." please, just say it. It's okay. No takers. But, I had to admit there were no takers because I saw they were just overwhelmed by the barrage of information I was going over. Many kept nodding their heads, saying in effect, wow, that was some performance. So, I then asked: How many of you had heard of most of this stuff I just showed and explained to you? The kids just shook their heads, saying no way. Yeah, I smiled. Funny how in all the arguments you may have heard in politics on tv, radio, or home, nobody really wants to litigate just what Roe v. Wade actually said and meant. (I had gone briefly into Doe v. Bolton and how the phrase "life or health of the mother" was one that was not really well defined about "health," but how Blackmun thought there would be a good faith legislative enactment about that. Silly Blackmun. That is not what anti-abortionists wanted or want...**)
I left them with this: Even if you are still anti-abortion in any way, I only ask you to consider: Why is trying to stop another woman from aborting her fetus a public policy priority for anyone compared to, I don't know, climate change, systemic inequality (economic and racial), or even guns? With guns, at least, it is "Hey, don't take away MY gun!" On abortion, it is more removed, and may be seen as judgmental, "Hey, slut! Keep that baby growing inside you!" Kids laughed. I then smiled and said, Oh well, as I said at the start, the chances of Roe v. Wade being overturned are pretty high. I just thought you should know what Roe v. Wade actually said for your own edification. Justice Blackmun rarely gets plaudits for the case, and I thought you students should at least deal with his thinking and ruling.
*See the NYU lecture she gave in 1992, where she called the decision "breathtaking" and unduly setting up a "blanket regime" of abortion rights. I really and truly believe Ginsburg's comprehension skills are overrated in her discussion of Roe over the years, particularly when she would say Roe is not based upon the 14th Amendment and claims it is really more about doctor's rights than women's autonomy. I really think she was terribly wrong.
** I had meant to go into this polemically based argument about how abortion became the motivating political issue for so many culturally conservative voters, but ran out of time. :)
