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Abortion, The Constitution, And The Supreme Court

by Peter A. Belmont / 2022-05-08
© 2022 Peter Belmont


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May 8, 2022 (Mother’s Day)


The discussion of abortion today implicates two questions: What is a good law? and How should the Constitution be interpreted today?

       Comment on shortening to 750 words. I should probably not have put in the bit about judicial invention of corporations-as-people-for-free-speech, but I wanted contrast with judicial invention and dis-invention of privacy.

I omitted forced child-carrying as prohibited involuntary servitude.

I might have been clearer about abortion as a private matter, unlike murder.

I especially omitted my idea that there is a strong moral argument (supporting at least the pro-choice position) AGAINST having more children, due to population pressure on open spaces, on climate change, on many other environmental aggressions by humankind-as-a-whole which imply a need to reduce rather than increase the size of the human population.


REGARDING LAWS


As I see it, a law is good when its effects are good, bad when its effects are bad.

For me, saving lives is good, and trumps any harm done by offending anyone’s sectarian sense of propriety or morality.

The universal law against murder is good because, to the extent it has any effect whatever on behavior, that effect is to make every life more secure, a clear good. This good has nothing to do with Bible-based morality. Atheists oppose murder. So do pro-choice folks. If abortion were murder, there’d be no need for anti-abortion laws. It wasn’t and isn’t.

The laws against abortion are bad, because, to the extent they prevent safe surgical or drug-induced abortions, they endanger the lives of many pregnant women.

Which women’s lives are endangered when abortion is outlawed?

First, those whose own lives are endangered by their pregnancy. And, second, those who are willing to undergo an unsafe illegal abortion from desperation over threat to their own health or life, over unwanted pregnancy due to rape or incest, over a malformed fetus, or due to the economic, social, or other impacts of giving birth to a child (or another child).

Laws forbidding abortion will, in many cases, serve as death sentences for those affected. Claiming to seek to protect (fetal) lives, such laws in many cases will sacrifice both maternal and fetal life. Illegal abortions often kill.

Prohibition did not prevent drinking, and anti-abortion laws have not prevented abortions.

Laws forbidding abortion have nothing to do with any universal morality and everything to do with the imposition of sectarian moral or misogynistic views on others who do not share those views.

No arguer-against-abortion is endangered or suffers any loss by any abortion. At most, such a person’s self-righteousness or sense of political control is threatened by an abortion or by a law permitting an abortion.

But when a pregnant woman dies from an unsafe abortion or in unsafe childbirth, her existing children (if any), husband or lover (if any), relatives, co-workers, and friends are all affected and all suffer loss. The fabric of their lives is torn. No woman is an island. By contrast, when a woman has a safe abortion, no-one suffers more loss than a miscarriage would occasion.

REGARDING THE CONSTITUTION

When the Constitution and Bill of Rights were written and adopted, no women participated, and neither document mentions women or their rights (very few at the time). However, the misogyny and patriarchalism that ruled society at that time has today in most quarters been replaced by support for legal gender equality. The Equal Rights Amendment is being advanced.

The Constitutional decisions of the Supreme Court often in effect rewrite the Constitution, reacting to changing realities in ways favored by contemporary Court majorities.

For example, the Court rewrote the Constitution by allowing corporations, not mentioned in the Constitution, the political speech rights otherwise, presumably, enjoyed only by people. Indeed, the Court granted corporations far more political power than citizens possess, because the richest corporations have millions of dollars to spend as “political speech”, far exceeding what citizens have to spend. Unlike the case described by Anatole France, who wrote: “The law, in its majestic equality, forbids rich and poor alike to sleep under bridges,” the Court allows both citizens and corporations alike to spend millions on political speech.

Similarly, the Court (e.g., in Roe v. Wade) rewrote the Constitution by enlarging a non-textual right of privacy rooted in a line of decisions, earliest in 1886.

Whereas, today, most Americans find the political spending of corporations harmful and a majority of Americans find the right of privacy desirable, we expect the Court to go against the expressed needs of the times by continuing to allow court-created political domination by corporations and to reverse itself and remove the right to privacy for abortions.

May we hope that a majority of the Court will soon realize that its legitimacy depends on reacting to contemporary situations in ways consistent with the contemporary needs and desires of a majority of citizens rather than in a manner consistent with the social needs and desires of wealthy men (including those who wrote and adopted the Constitution in quite a different age).





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