Showing posts with label Supreme Court. Show all posts
Showing posts with label Supreme Court. Show all posts

Saturday 14 May 2022

If Men Could Get Pregnant . . .

If Men could get pregnant . . .

It is my counterfactual conviction (meaning it is what I absolutely believe but as a hypothetical cannot be proven with evidence) that if men could become pregnant, the question of abortion would never have arisen.  If men were capable of giving birth, it never would have crossed anyone's mind that the termination of a pregnancy needed to be governed by legislation, let alone criminalized.  Conversely, the termination of a pregnancy is a question because of the inferior status assigned to women throughout Judeo-Christian, Greco-Roman history and culture.  Only in the 20th century have women been grudgingly assigned the status of "personhood," and we continue to struggle with the implications of that assignment.

Women Are to blame . . . men say so . . .

Woman have hard lives.  Men justify the suffering of women through mythology.  In the Christian tradition, Eve brought evil into the world and is therefore responsible for the suffering of all women.  In Greek tradition, Pandora opened the box which released evil into the world.  In Aeschylus' ancient Greek trilogy, The Oresteia, Orestes is put on trial by the gods for murdering his mother, Aegistheus, after she killed his father, King Agamemnon.  The conclusion of the trial is that Orestes is not guilty of a crime because his first loyalty was to his father.  Orestes was, first and foremost, the son of his father and his mother was simply the vessel of his birth.  Three thousand years later, that verdict is still being debated.

Tremblay v. Daigle (1989)

In 1989, the Supreme Court of Canada, in Tremblay v. Daigle, ruled that "a father has no right to veto a woman's abortion decision."  However, Daigle had already gone to the US to terminate the pregnancy before the Supreme Court ruled. Why are the courts, the judiciary branches of government in both Canada and the USA, which can interpret but have no power to create or change the law, being left to decide the abortion question?  The simple answer is that the executive branch, the men we elect (and yes the executive branch is dominated by men), has no interest in passing laws that would give individual women the power to decide to terminate a pregnancy.

 Roe v. Wade (1973)

No new laws were passed, but abortions became legal when the Supreme Courts in Canada and the USA (re)interpreted their respective constitutions as giving women the right to terminate a pregnancy.  In Roe v Wade (1973), the US Supreme Court heard the case of Jane Roe (a play on Jane Doe) against Henry Wade, Attorney General of Texas.  Roe's complaint was that the laws of Texas prevented her from terminating her pregnancy by forcing her to travel to another state and pay for an abortion.  Roe was accompanied in her petition by another Texas couple and a doctor who had already been convicted of performing abortions and had two more accusations pending.  In the end, the Supreme Court accepted to hear only Jane Roe's case.  Allowing Roe's case to even be heard was challenged because she became pregnant in 1970 and by the time her case was before the Court she had already given birth.  Nonetheless, the Court heard her petition and ruled that preventing her from having an abortion was unconstitutional based on various clauses of the US constitution relating to "privacy" and "liberty of the person."  Consequently, the laws of Texas and, by extension, the laws of any state which attempted to curtail a woman's right to terminate a pregnancy were determined to be unconstitutional. 

R. v. Morgentaler (1988)

A similar scenario unfolded much later in Canada. The Canadian Constitution and Charter of Rights and Freedoms were enacted in 1982.  In 1988, the Supreme Court of Canada ruled, in R. v. Morgentaler, that abortion laws were unconstitutional, according to the 1982 constitution, because they "infringed upon a woman's right to 'life, liberty and security of person'."  Since that time, in Canada, a woman's right to an abortion has been unrestricted.  The Mulroney Conservative government attempted to pass a law in 1992 which would impose a two-year prison sentence on doctors performing abortions, but the bill died in the Senate.

Justice Alito's majority opinion overturning Roe v. Wade

 The abortion question is very much back in the legacy media since Politico published a leaked draft of Supreme Court Justice Alito's majority opinion overturning Roe v. Wade.  This year, the case of the Mississippi State Health Officer v. Jackson Women's Health Organization was brought before the Supreme Court.  The State of Mississippi is proposing a prohibition on non-therapeutic abortions after sixteen weeks of pregnancy.  At first glance, the proposal might not seem unreasonable.  However, some states are proposing to ban abortion after six weeks which would effectively ban most if not all abortions.  If Roe v. Wade is overturned, these various state bills prohibiting abortion would almost immediately become law.

What the Bible says about abortion

Despite US claims of separation between church and state, it is obvious that anti-abortion, pro-life movements are underpinned by powerful evangelical lobbies.  I remain dumbfounded that at this point in human history, evangelism, the literal interpretation of the Bible, can still have a profound influence on American politics.  (See How Many Americans Think Planet Earth Is 6000 Years Old?)  Moreover, even if we accept literal interpretations of the Bible, as I have pointed out previously (see What Bible Translation Says about People Who Oppose Abortion), despite attempts by Thomas Nelson Publishers to rewrite the Bible in the 1970s, Exodus 21:22 is explicit that a fetus is not equivalent to a human life.

When Life begins

Much of the debate concerning abortion, including in Roe v. Wade and the Alito opinion, eventually turns to the question of at what point a fetus is considered equivalent to a human person or, more abstractly, at what point life begins.  Typically, pro-life arguments contend that life begins at conception. In Western practice, life is taken to begin at birth.  We measure age by and celebrate birthdays not conception-days.

When Life begins according to the Bible

If we turn to the Bible to determine when life begins then the story of Onan becomes relevant.  These days, "onanism" is a synonym for masturbation.  However, what exactly Onan's sin was and how the biblical story should be interpreted are much debated.  When Onan's older brother died, Onan was, according to old-testament law, required to conceive a child with his brother's widow.  He went to his sister-in-law but, instead of completing the sex act as required, he "spilled it [his seed] on the ground."  If we want to take the Bible literally, one possible interpretation is that life begins with a man's seed and Onan's sin, wasting his seed, was equivalent to terminating a human life.  If you kill the seed, you kill the flower. God's punishment for Onan was death. If we want to base modern laws on Bible stories, then any man who masturbates, scratches his testicles carelessly, uses a condom or does anything to interfere with his own semen is guilty of the same crime as a woman who terminates a pregnancy. Needless to say, no government has ever considered legislating, let alone criminalizing, how a man treats his own semen.  

Alito's Argument overturning Roe v. Wade

Supreme Court Justice Samuel Alito, according to various commentators, tends toward hyperbole and arrogance.  His draft majority opinion shows evidence of both, especially when we consider that he is critiquing the work of his predecessors and two decisions of past Supreme Courts:  Roe v. Wade (1973) and Planned Parenthood v. Casey (1992).  Alito's argument, in contradiction to earlier Supreme Court decisions, can be boiled down to:

  1. "The Constitution makes no reference to abortion [. . . .]"
  2. Abortion is not equivalent to any of the various rights and freedoms that are claimed as implicit under the constitution.  
  3. "Liberty of the person" does not include the right to an abortion because of the moral issue and debate concerning the rights of the fetus as a "living person."
  4. In the absence of implicit or explicit coverage in the constitution, the Court must turn to US history, custom, tradition and precedent to determine its judgment.  Alito asserts, in contradiction to the Court in 1973, that US history shows no openness to granting abortion rights.

Alito's conclusion:

We therefore hold that the Constitution does not confer a right to abortion.   Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives.

Are Women's rights human rights?

 Reading Alito's conclusion I am reminded of  the refrain in Hilary Clinton's address to the United Nations Fourth World Conference on Women held in Beijing:  "Women's rights are human rights."  Now we know the response:  "Not in the USA."

Imagine that the Supreme Court ruled that whether or not a man could get a vasectomy would be determined by "elected representatives."  Unimaginable . . . which is exactly the point.

Women Don't have rights because, in the eyes of the law, women don't exist

There is a slippery, slight-of-hand argument running throughout Alito's opinion.  Alito claims that removing the right to decide the termination of a pregnancy does not discriminate against women.  Citing early court cases, Alito argues there are precedents which establish that women are not a group being discriminated against.  The dividing line created by an earlier court case is between  "two groups -- pregnant women and nonpregnant persons. While the first group is exclusively female, the second includes members of both sexes."  In this perspective, since women do not exist as group, it is not possible to claim that restricting abortions discriminates against them.   Therefore, state laws prohibiting abortions would only discriminate against "pregnant women," and it would be left to individual states to balance the rights of pregnant women and those of "unborn living persons."  In this latter case, curtailing the rights of pregnant women would be justified if state legislators believe that a fetus is a living person with equal rights.  What this slippery argument willfully ignores is that what is being taken away is not just the right of some women to a medical procedure; what is being taken away from all women is the right to decide.

 So What!?

The Supreme Court decision will be a victory for evangelicals, 80% of whom voted for Donald Trump knowing he would appoint conservative justices and predicting that this day would come.  Justice Alito is obviously right that US history does not provide precedents for allowing individual women to decide what happens to their own bodies for the obvious reason that American history is a history of discrimination against women.  Arguing that the future must be a continuation of the past is, more or less, a definition of "being conservative."

In practical terms, the new laws will force some woman (in southern states) to face the cost and inconvenience of traveling out of state to terminate a pregnancy.  Consequently, the greatest burden will be borne by the poorest of women.  In the abstract, women's rights and sovereignty over their own bodies will revert to 1970. We might hope that since the majority of Americans support a woman's right to decide, they will elect representatives who will legislate this right.  But, somehow, despite the promises of democracy, the will of the majority rarely succeeds against the power of lobbies and interest groups.

What about Canada?

Could the same happen in Canada?  The mechanisms are exactly the same.  Supreme Court Justices are appointed by the government.  Five of the nine current members of the Supreme Court were appointed by the Conservative government.  These days, various Conservative politicians promise that they will not introduce abortion legislation.  Such promises are irrelevant.  If someone brings a case to the Supreme Court tomorrow, the Court could overrule R. v. Morgentaler (1988) and abortion law would revert to 1969.  Abortion would become illegal in Canada unless a committee of doctors decide it was necessary to save a woman's life or health.

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