Thursday, October 02, 2008

The abortion conundrum

Two topics that I don't generally discuss with the outer-world -- that is, people outside my small network of close friends, family, street corner drunks, Google-stalkers and randomly selected conversation partners in grocery store check-out lines -- are the Middle East and abortion politics. It took me longer than it should have to realize that any "discussion" of these topics quickly turns into an argument, an argument that, in almost every case, was about as satisfying as reading the "Fuck me? No, Fuck You" volleys in the comments section of some celebrity pundit's most recent column. So, after years and years of engaging these topics to no avail, I amended my own personal employment/discussion/arguing manual many years ago to exclude any discussion of these two topics with people I don't know very well. And, I must say, unlike most decisions I make, this one has proved a good one.

An article this past Sunday in the Washington Post Outlook section by Linda Hirshman has, against my better judgment led me, to borrow John McCain's phraseology, to "suspend" my moratorium on discussing abortion politics (my off-limits approach to the Middle East is still off-limits). Hirshman is a lawyer and former professor who writes most often on women-and-work-type issues and is most noted for her view that well-educated, professionally-trained women should not remain home with their children, where their education and skills are wasted on demeaning and unproductive "labor." Rather, women should "choose" to stay in the workplace, where they can enhance their power and prestige and, presumably, get much more out of life than they otherwise would taking their little ones to Gymboree and wiping their runny noses between thrown together lunches of Mac 'n Cheese and sliced fruit. I have never found Hirshman's writings appealing, and the reasons are legion. First, I don't necessarily agree that all women (or men, who are never mentioned in her work, except as villains) have "choices" about whether to work or not. Second, the careers that women are "choosing" to forsake, like their male counterparts, are not all that spectacular. For every one woman torn between what is, in reality, a fetishized life of power and glory in a corner office high above the teeming masses in a tall glass building, thousands more are plugging away in jobs that they'd throw away in a minute if they could (ditto for men). Third, her take on the workplace/life issue assumes that spending more time with your family is somehow "beneath" the well-educated and accomplished mind. Speaking for myself, I would much, much rather spend my time with my family, especially my young children, and, unlike most of my well-educated and affluent friends, I have a job I absolutely love and wouldn't trade for any other -- and I've had my share of chances to take positions that, in the eyes of those who offered them to me, would be considered advancements. But I simply don't care about "advancing" to please others or to convince myself that I have "succeeded." And that will never change. The Linda Hirshmans and Judith Warners of the world will have to agonize about the plight of well-educated white women and their "choices," choices that, in my experience of being the only Dad on the "primary caregiver" circuit during my childrens' pre-school days, were usually being debated at a well-maintained park subsidized by private contributions over Starbucks and a dog-eared copy of Architectural Digest. Their nannies, usually Fillapino or Latina, played with their kids, who weren't allowed to get dirty, lest they mess up their carefully chosen collared shirts with matching plaid shorts.

Hirshman's article in the Sunday Post was not about poor little rich white women and the Congresswoman vs. stay-at-home mom "choice" that so many of them face. Timed perfectly to coincide with the upcoming McCain-Obama debate on domestic policy, Hirshman writes about the post-Roe/Casey/Gonzales world that awaits women should a McCain-appointed justice (or two) vote to overturn those decisions, assuming that Justices Clarence Thomas and Antonin Scalia can put together a majority to abandon Roe/Casey. Chief Justice John Roberts and Justice Sam Alito did not join the Scalia/Thomas concurrence in Gonzales to discard Roe. In fairness, her article was not about which justice would agree to do what. Assuming the Court would take the final leap that liberals have fretted about for the last twenty-five years or so, Hirshman offers a nightmare scenario for women, their doctors and almost everyone involved who believes that the right to abortion should remain as it is. Women will subjected to criminal prosecution, forbidden to travel across state lines to obtain an abortion, be subject to invasive searches to determine if they've had illegal abortions, and more. A parade of horribles, for sure.

Don't forget: the current state of abortion law is dramatically different than the rules the Court created in Roe thirty-five years ago. Technically, it is a misnomer to even describe the abortion debate as one that involves a choice between a pre-or post-Roe landscape. Roe stands in the sense that women cannot be legally blocked from obtaining an elective abortion prior to fetal viability. Everything else about Roe has changed. States can mandate waiting periods, require "informed consent," place restrictions on the right of minors to obtain abortions, compel testing to determine fetal viability and deny public funding even for therapeutic abortions. On the law side, the trimester system upon which Justice Harry Blackmun built Roe was laid to rest in Casey, and states are not required to justify their regulations as related to maternal health. States may, if they choose, prefer "life" and pass laws to promote the state's asserted in interest in protecting that life. They may say, in the preambles to their laws, that life begins at conception without violating the First or Fourteenth Amendments. And, since Gonzales, the Court has said that laws prohibiting abortions after fetal viability no longer require a health as well as "life of the mother" exception, something that previous majorities, even those upholding restrictions on abortion, had never done. Still, the power that Roe has as a symbol of women's equality and reproductive freedom is so great that commentators and politicians discussing abortion law and politics can still use it as shorthand, even though the actual decision is a shell of its former self.

So, why do I, as someone who is a long-time supporter of Planned Parenthood, unwaveringly and unapologetically pro-abortion rights and donates to organizations that work to protect legal abortion as well as lobby for comprehensive sex education . . . as someone who do anything to secure an abortion for my daughter if she wanted one, even if that meant breaking the law, fail to get riled up by the "Chicken Little" arguments like the one Hirshman makes? I suppose it is because I subscribe to the "burning building" theory of constitutional law and judicial decision-making. I'll explain . . .

Have you ever been in a conversation where you insisted that you'd go back in a burning building to retrieve your favorite things, rescue your or your children's cat, climb the fire escape to help the kindly old gentleman who lives four doors down from you and always remembers your birthday or to save the wheelchair-bound elderly woman who is always there for you when you need to discuss your personal problems? Of course. We all have. Yet, would we actually go back into the building to save a cat, rescue a person who isn't related to us or retrieve family photos? The only honest answer is that we don't know. Until you are actually faced with a choice that, until that point in time, has only been an abstract point of discussion, you really have no idea what you are doing to do.

As of today, there are only two votes on the Court, Justices Scalia and Thomas, to do away with the constitutional right to abortion. Justice Alito and Chief Justice Roberts haven't indicated as such, and Justice Kennedy's objections to late-term abortion do not extend to pre-viability elective abortions. Do I think that Scalia and Thomas, should the votes fall into place, would pull back from their commitment to deconstitutionalize abortion rights? No. Do I think the same is true for Alito and Roberts? In Alito's case, I'm not sure. In Roberts's case, I don't think he'd do it. Yes, yes, yes . . . we can point to this decision or that one as evidence that one justice or another might vote a certain way. But that's a very limited predictor, as not all cases carry the same weight. To say that a justice is pro-this or anti-that might be true in cases with low stakes. But in cases where the law will shift dramatically, in this case to give states the power to criminalize performing, aiding or obtaining an abortion, a justice might have a greater reason to pull back. Often lost in this highly-charged discussions on abortion rights (or any other contentious civil rights/liberties issue, for that matter) is how justices want to be remembered by the casebooks, articles and opinions that house their work. Does John Roberts, an apple-polisher from the get-go and a Grade A member of the Washington Establishment, the Establishment that "agrees to disagree" about everything from which elite private schools can best serve their children to whether Jackson Hole or Martha's Vineyard should be this year's vacation destination, really want to be remembered as the Chief Justice who presided over what would be the Court's most unpopular decision in modern times? Does Sam Alito want to be remembered by the country's law schools as the justice whose opinion outlined the end of constitutionally protected abortion rights? All this reminds me of Justice Anthony Kennedy's concurring opinion in the 1988 case of Webster v. Reproductive Services. Kennedy excortiated the indecisive "let's limit this decision to today" approach of Justice Sandra Day O'Connor, which led many "legal experts" and those who play them on television to conclude that he would sink Roe if given the chance. Four years later, Kennedy joined with O'Connor and David Souter to preserve what he called the "core" of Roe -- that women, in consultation with their doctors, had a constitutional right to abortion, albeit one that could be heavily regulated, that the state could not prevent.

Rather than viewing Kennedy's decision as one that came through reflection, a sense of his place in history (positive rather than negative) and a realization that moving the law of abortion from an abstract law school seminar to something that would alter the lives of everyone from women seeking abortions to the doctors that performed them to the insurance companies that paid for them, he was lambasted by conservatives, who accused him of intellectual cowardice, the need to protect his reputation on the Washington cocktail circuit or to remain on the good side of Linda Greenhouse, the New York Times long-standing (and now former) Supreme Court correspondent. The stark reality is that no one knows why Kennedy pulled back. Yes, there are law professors and political scientists out there who believe it is a worthwhile use of their time to come up with some "explanation" of the decisions that justices make. I'm not one of them, though, because I don't believe big decisions are that easy to make, much less predict. Could there be a difference between how a "justice" thinks and how a "judge" thinks? A justice, perhaps, can think more abstractly about the relationship between law and society. A judge, on the other hand, must, well, "judge" how to balance the competing interests before him or her in any particular case.

So, for the sake of argument, if we can't really predict with any degree of scientific certainty what a "justice" or "judge" -- presuming we view their roles as slightly different -- will do when the stakes are raised, do we really know what states will do on abortion? A handful of states do have "trigger" laws on the books (laws ready to go into effect in the event the Court abolishes constitutionally protected abortion rights) but their power lies in their symbolism, since they are legally impotent. Will state legislators show no mercy on women who will undoubtedly seek abortions? What about their boyfriends, girlfriends, husbands, uncles or grandparents who drive them to an illegal abortion provider? Are they now accessories to a crime, no different than someone who drives the stick-up man to the bank or agrees to wait in the car while his partner walks into a convenience store, robs it, and shoots the clerk? And what about doctors? Will their first obligation be to the Hippocratic Oath or a newly reconstituted set of laws that prevents them from performing a procedure that had been legal for over 35 years? On more than one occasion, I've heard "pro-life" politicians hem on this question, claiming that their interest is not putting anyone in jail or punishing women, but to promote the "culture of life." That's all well and good. But when you criminalize something, someone has to get fined or sent to jail. Otherwise, why write laws?

Take it up another level. Does a moderate Republican governor like Charlie Gilchrist of Florida want to stake his career on putting women in jail who had an illegal abortion? That assumes, of course, that reasonable governors with national political aspirations would even sign laws like these. Does the United States want to project an image around the world as a place where teen-aged girls raped by their stepfathers must bear that child, one that was "created" by a dehumanizing and degrading act that has no equal? And what about the doctors who perform abortions? Are we now going to send them to jail as well? And what kind of jail -- a minimum security facility where they can "think" about their crimes while learning a trade or a hard-ass lock down facility where a woman who was raped by her stepfather is viewed as fair game for sexually abusive prisoners and those who guard them.

I have never heard a politician calling for the end of constitutionally protected abortion in the United States answer those questions in any meaningful or satisfactory way. There's a good reason for that -- it isn't necessary. As long as the abortion debate remains abstract, a "pro-life" politician can please his or her constituents by demanding an end to the practice without having to account for any real-world consequences. Take John McCain. He knows full well that if he put the abortion issue front and center in his campaign he scares away a lot more voters than he would attract. He'll say the right things and offer reassurances to his "pro-life" supporters; but the reality is that he wants this issue as far down on the totem pole as possible. See how he responds if one the moderators in the upcoming presidential debates asks him if he believes states should send women to jail for obtaining abortions, doctors for performing them, expend resources for law enforcement to police emergency rooms and other facilities to nab women who have attempted to perform abortions on themselves or, worse, made up a story about a miscarriage. Let's see how Mr. Straight Talk handles that one. Really. Just someone, anyone, ask him. Ask the same question to Sarah Palin tonight.

So where am I on all this, a few thousand words later? There are lots of reasons I don't want to see John McCain or Sarah Palin appointing anyone to the lower federal courts or the Supreme Court. But concern for the Court's precedents on abortion, surprisingly, is not one of them. So much has to happen for a committed pro-life justice to get to the Court. He or she would have to make it through a Senate confirmation process that would be, justifiably, contentious and partisan -- and may well center on abortion rights. Yes, yes . . . I can hear you now . . . "concern for the process," . . . "politicizing the judiciary," and so on. But if presidents can choose people for ideological reasons, then the Senate can oppose them for the very same reason. That doesn't bother me a bit, and I'd feel the same way if an Obama Administration found itself swimming upstream on a judicial nomination. I think debate and discussion is good for politics, especially when any potential decision involves a lifetime appointment. Once on the Court, new justices don't typically attempt to stake out new ground or make controversial decisions in their first few years, although, as in the cases of Scalia and Thomas, there are exceptions. Then that same justice, faced with the very real possibility of forever altering the course not just of constitutional law, but the lives of women, doctors, families, insurers, law enforcement and public health organizations. And then there's the rest of the world, which might find the idea of American "moral leadership" (always more of a fantasy than a reality, but that's another topic . . .) little more than self-parody as it marches the victims of nonconsensual pregnancies off to jail for not wanting to have their rapist's child. By the way, has anyone thought about who gets custody of a child that no one wants? Is John McCain prepared to tell a woman that she must keep and shoulder the cost of raising a child that resulted from a nonconsensual act?

No, the "burning building" theory of constitutional law and judicial decision-making doesn't have the elegance of some (almost always inaccurate) mathematical model that purports to "explain" how the Court works. But admitting that we sometimes don't know what we would do when confronted with the real over the abstract, we might end up with a better and sometimes calmer perspective on a issue that tilts too often towards hysteria and not enough towards understanding the world as it actually works.

1 comment:

Gabe said...

I thought your post started out with some fairly straight forward commentary. I wonder why you ended with the nonsense about dragging incest victims to jail etc. You must not know enough pro-life people feel it necessary to bring that kind of unhelpful accusation up.

The point about there needing to be more ideas forthcoming from politicians of pro-life persuasion on dealing with the reality of outlawed abortion in a responsible way I agree with. The incest and jail commentary seemed to go beyond your other points?

For most abortion minded women I think the answer would be to buck-up. I refer to types found in this pro-choice video:

For the more difficult and rarer (rape/incest) decisions I think it would be good to require those who operate PRCs to help with taking care of those children because they are the ones who declare that they should be saved.

Just a few of my knee-jerk thoughts after reading your article.