Let me make it clear right from the start that I think women ought to have the right to control their own reproductive activities. Abortion should be legal and accessible to every woman, but good family planning and contraception should also be available to reduce the need for abortions in the first place. If men could get pregnant this wouldn’t even be an issue.
Having said that, let me comment on the leaked draft opinion by Justice Alito. His legal and historical reasoning is in my opinion flawed in many places, but his core claim is correct. Roe vs Wade was a bad ruling, as even Justice Ginsberg, a passionate liberal and defender of women’s rights, argued. Just as this court appears to be about to rule to overturn Roe on conservative ideological grounds, Roe itself was upheld in 1973 on liberal ideological grounds – they wanted to have this outcome - with a very tenuous legal underpinning.
The 1973 court first “found” a right to privacy in the Constitution, even though there is no such concept anywhere in the document, nor any record of any discussion about it among the writers of the Constitution. The court’s argument was that it was “implied” somehow, even though it wasn’t directly addressed. A pretty thin argument.
And then from that newly found “right to privacy” they made another very loooong stretch to make it cover abortions. So the whole ruling is based on two very tenuous and thin arguments. And as several justices have said, this is not an issue that ought to be decided either way by nine unelected justices; it ought to be decided by elected legislatures. By rights Congress ought to make abortion legal nationwide by legislation, but of course that won’t happen with this Congress, or any Congress in the near future, and it is worth exploring why that is.
First of all, opposition to abortion is for most people based on a religious belief, not anything to do with the real biology involved. There is no point at which “life begins”. Life is a continuing process, and if at any point in the process there is no life – if the egg or sperm die – then there is no baby. Those of us around today are all here because life never “ended” anywhere, even for a moment, between our single-celled most distant ancestor some 3.5 billion years ago and us now. So definitions of when life “begins” or “a soul enters the body” are arbitrary religious concepts invented mostly by medieval monks and clergy who had no understanding of modern biology. Nonetheless, for believers these are persuasive authorities who have shaped their own views.
But in fact a majority of the nation, including both believers and nonbelievers, seems to believe abortions ought to be legal, at least up through the second trimester. So why do we have politicians appointing anti-abortion Justices, or at the state level outlawing abortions in so many states? It is worth exploring that.
I would argue the problem is in part rooted back in the primary system of picking candidates. Yes, the old smoke-filled room method of picking candidates by a few powerful political kingmakers had its faults and was subject to abuse. But they did tend to pick electable center-of-the-road candidates. When reformers got rid of the smoke-filled rooms and replaced it with primary elections, that seemed at first like progress. But remember the old saying: “the road the hell is paved with good intentions”.
In fact, whatever was intended, the current primary system tends to favor extremist on both sides. Why? Primary elections are generally low-turnout affairs; after all, they aren’t the ”real” election, so many people don’t feel much motivation to turn out. Who does turn out? Those who are passionate about an issue, and those tend to be the extremists on the left and right. So in fact all too often the candidates are chosen in the first place by the more extreme elements among the voters, so we tend to get elected representatives who have more extreme views than the voting population as a whole. And that is certainly the case for this issue.
And of course this whole issue is just one of many boiling right now, as our two political parties have both become dysfunctional, though in different ways. As Peter Zeihan has been telling us for years now, we are entering a many-decades-long period of global unrest and cultural realignment that will feature many divisive issues like this.
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