Welcome to the bunch of new subscribers who signed up yesterday. It’s nice to have you here.
The Supreme Court ended the historic 2021-22 session with a bang yesterday, with the 6-3 conservative majority ruling in West Virginia vs. EPA to substantially constrain the Federal Government’s ability to implement policy unless specifically empowered by Congress to do so. The key word here is “specifically,” since common-sense standards for managing problems like climate change require giving executive agencies reasonable latitude to account for evolving science and changing conditions in order to implement policy. The problem becomes all the more acute when Congress is gridlocked, with a 60-vote super majority needed to pass legislation. It’s one more example of the increasingly unabashed collusion between Congressional Republicans and the Court majority to remake law and policy. Jessica Levinson explains the case and its implications in more detail here.
I want to make one more comment, for now, about the Dobbs decision. The majority in that case enumerated the “legitimate” interests the state has in banning abortions as the now valid basis for upholding those laws. Those interests include ”respect for and preservation of prenatal life at all stages of development…; the protection of maternal health and safety; the elimination of particularly gruesome or barbaric medical procedures; the preservation of the integrity of the medical profession; the mitigation of fetal pain.”
About the first “legitimate” interest, numerous foundational religious texts, including the Bible, are ambiguous about or do not recognize the proposition that life begins at conception. More broadly, there is profound theological debate over that proposition. And there is no scientific consensus on the matter. But the Court majority has asserted that one very particular religious-cultural perspective about when life begins counts as a legitimate state interest. Concerning fetal pain, the prevailing science of neurological development says the mechanisms necessary to experience pain do not exist before about 24 weeks, i.e. viability. That fact renders disingenuous the state’s supposed interest in avoiding “particularly gruesome or barbaric medical procedures” before viability. Disingenuous because, if there is no evidence of fetal pain before about 24 weeks, then any procedure done prior to that threshold cannot reasonably be distinguished in its barbarity from any other invasive medical procedure that involves blood, cutting or other surgical necessities.
The Court majority’s meaning when discussing “integrity of the medical profession” is barely veiled cover for defending those practitioners who refuse to carry out abortions. At the same time, the Court has ensured that many doctors will face nearly impossible choices about whether to perform abortions when weighing their responsibility to the health of their patients against the increasing probability of criminal prosecution. It’s hard to imagine a more direct threat to the integrity of the medical profession than that. So, once you strip away the highly contested premise that life begins at conception and the scientifically dubious claim that fetuses experience pain before 24 weeks, there is nothing legitimate about almost any of the interests the Court says states have prior to viability. Though the Court did say protecting “maternal health and safety” is a legitimate state interest, it has clearly put its thumbs on the scale in favor of fetuses. That’s because the Court majority cannot shake its core belief, deeply rooted in misogyny, that fetuses are more sacred and more worthy of state protection than the humans who carry them. As a result, the Court has simply punted on trying to meaningfully balance the interests of the latter with those of the former. The laws that are now going into effect make that crystal clear.
Though I know it sounds otherwise, I am not dismissing the idea that the government has a valid interest in protecting “potential human life,” as its previous jurisprudence has recognized and that that *could* mean a threshold other than viability for imposing abortion restrictions. But if the Court is going to argue, for example, that fetal pain matters, it’s the Court majority that has opened the door to the viability threshold, since that is when science believes fetal pain begins. And if it rejects prevailing science on such questions, it is simply ignoring any reality inconsistent with its own ideological predilections.
I realize that, in one sense, none of this matters. The Court has ruled as it has and many states have already followed. But as the issue will continue to be the focus of the most intense debate, it’s still important to be as clear as possible about the debate’s premises as well as the chaos, suffering and further division this ruling will surely engender. Though this phase of the fight is over, the battle will continue.
Happy 4th to all who celebrate!
Thanks, Jonathan. I think we have established that the conservative majority doesn't let science or consistency get in the way. The fact that the first anti-abortion law was only passed in 1821, and that was after "quickening" (around the 13th-14th weeks) should provide sufficient evidence that the Founding Fathers didn't feel the need to assert the right to an abortion because women possessed that right already. And if they opposed abortion, not before 13 weeks. And let's review the conservative "pro-life" stance. They struck down gun protection laws that will lead to more deaths. They struck down abortion, which will lead to more maternal deaths. They kneecapped the EPA, which will lead to more environmentally-caused deaths. They support the death penalty, which leads to more deaths. They oppose the ACA and expanding Medicaid, which leads to more deaths. They oppose "pesky" safety regulations that are a "burden" to big businesses like coal mines, which lead to more deaths. I am really struggling to see what Conservatives do to save lives other than those of fetuses of poor women, who will be the only ones unable to access abortion care and will then be accused of being a burden on society and some of whose kids will be put in the school-to-prison-to-death-row pipeline.