Pro-Life Means ... Pro-Life
The hypocrisy of the pro-life movement is only matched by the hypocrisy and illegitimacy of the Supreme Court.
I’ll be Zoom Chatting tomorrow, and I’m very excited that lawyer, columnist, and author Jill Filipovic, will be joining me to discuss the repercussions of the Supreme Court potentially overturning Roe v. Wade. Jill has written extensively about women’s health issues and human rights, and I’m looking forward to getting her thoughts on what a post-Roe world might look like. You can check out her latest piece on abortion politics here, and please join me in subscribing to her newsletter. The chat will be at 12:30, and the link to the discussion is here.
A Few More Thoughts on the Potential Demise of Roe
Last night I was reading an interesting article in the Washington Post on the oddly muted response of elected Republicans to the leaked Alito opinion. The party is on the cusp of fulfilling a nearly five-decade policy goal to end Roe, and no one seems to be celebrating. However, I was struck dumb by this sentence: “A new Washington Post-ABC News poll found 54 percent of Americans want the ruling upheld vs. 28 percent wanting it overturned.”
Five members of the Supreme Court could be on the verge of discarding 50 years of settled law, stripping millions of women of the right to control their reproductive freedom … and it has the support of 28 percent of Americans. Any judicial body that would even consider such a radical and unprecedented step — that flies so directly in the face of public opinion — has lost the thread about its role in American society. Yes, there will be moments when the Court must make counter-majoritarian decisions, and yes, the Court can’t make decisions based entirely on public attitudes. But they can’t ignore public opinion either, especially when it comes to taking away a right (an act for which it’s hard to think of any modern precedent).
For years, women have relied on the availability of abortion in making personal and professional decisions (so too have millions of men). It’s a right that while not readily available in dozens of states is still largely taken for granted. Yet, the Court is now prepared to pull the rug out in one fell swoop.
To issue a ruling of such monumental impact with such little underlying popular support — and that will, with little warning or preparation, so dramatically transform American society — is emblematic of a Court that simply doesn’t care about its perceived legitimacy. It’s an institution drunk on power and more than willing to undermine the Supreme Court’s reputation to achieve larger ideological and partisan goals.
There are legal scholars far better equipped than me to explain why the draft opinion leaked earlier this week is wrong on the merits and wrong on the law. But from an institutional and legitimacy perspective, what the conservative bloc appears poised to do is one of the most extreme degradations of the judicial branch of government that we’ve seen in our lifetime. The only comparable case is Bush v. Gore and, not coincidentally, three of the justices about to scrap Roe worked on the plaintiff's side in that case. To be sure, there have been plenty of bad decisions made by the Court in the twenty-two year since conservative justices put their fingers on the scale for the 2000 election, but few will have the ramifications and societal impact of overturning Roe.
A decision to scrap Roe, if it happens, will also fly in the face of judicial precedent and basic judicial norms. The doctrine of stare decisis, which establishes that courts are obliged to make legal decisions based on precedent, is one of the most crucial aspects of the American justice system. In their confirmation hearings, all the conservative judges pledged to adhere to it, perhaps most notably Justice Brett Kavanaugh. So what changed in the past 50 years to justify the Supreme Court now deciding to scrap a five-decade-long legal precedent — and one that American women have come to rely upon? Why is now different than all the other times that the Court has debated abortion restrictions and maintained the principle that abortion is, in fact, a constitutional right.
To upend stare decisis, a court generally needs a good reason. Earlier judicial error or poor reasoning (Alito’s leaked opinion argues Roe was wrongly decided) has generally not been sufficient. Traditionally, the Court has held that “special justification" is needed to overrule past precedent. This could include whether the precedent "‘def[ies] practical workability,’ is subject to special reliance interests, is a mere ‘remnant of abandoned doctrine,’ or is based upon facts that have changed so significantly that the rule is no longer applicable.”
In some cases, the Court has justified overruling a past precedent by pointing to a change in societal attitudes. Has there been a cultural shift against abortion, akin to the evolution in support of gay rights that the Court used to explain its decision overturning an earlier precedent outlawing same-sex sexual activity (Lawrence v. Texas)? As the poll number above suggests, support for abortion remains a majority viewpoint in the United States — and one that has been remarkably consistent for years.
The legitimacy of the Supreme Court has been in freefall for years now, hastened by Bush v. Gore. This decision (if it happens) will be the final nail in the coffin. This Court’s actions will now — and for the foreseeable future — be seen for what they are: political, ideological, and partisan acts dressed up in legal rhetoric.
The Horrible Hypocrisy of the Pro-Life Movement
I tweeted out something yesterday that captures what is perhaps most upsetting about the Court’s likely decision to scrap Roe. “There is something truly malevolent about a party that wants to force women to carry babies to term but at the same time opposes paid maternity/paternity leave and subsidized child care to help parents take care of those babies.”
I get that abortion is a contentious issue. Like many Americans, I have conflicting views about the procedure, even though I am militantly supportive of abortion rights. But if you’re going to take the position that stripping away a woman’s right to control her own body is worth it because of the need to protect life, you can’t also oppose paid leave, subsidized child care, and expanded access to health care. You can’t ask women to sacrifice their bodies to protect life but then not ask Americans to sacrifice via higher taxes and increased spending to help take care of the babies born as a result. You can’t complain about the burden on businesses of requiring them to offer paid maternity leave but then deem it entirely appropriate to put all the burdens on women for taking care of unwanted children.
Quite simply, you can’t say that preserving the unborn is vitally important, but helping the born is not an equally vital priority.
As a friend who defines himself as an abortion moderate said to me yesterday “When abortion is a sliver of your pro-life agenda, it makes a fair amount of sense to me. When it's the beginning and end of the agenda, it's awful.”
The problem, of course, is that opposition to abortion has never really been about protecting life. It’s about social control, the role of women in society, the fetishization of “traditional” mores, and above all, politics.
You have a broad swath of Americans who hold the totemistic beliefs (or have been told) that abortion is bad and government assistance is almost worse. When it comes to protecting both the born and unborn, it is too difficult to square those two views, so many don’t bother. Few seem willing to square these two contradictory views. Opposition to abortion and opposition to “big government” are not well-thought-out positions for many Americans. They are tribal slogans — like support for the Second Amendment, the price of admission in Republican politics.
Obviously, millions of Americans are passionately pro-life and hold that view for genuine and moral reasons. But for millions of others — and in particular two generations of Republican politicians — “pro-life” is merely a platitude and partisan talking point. The veneration of “life” and empathy for babies ends when those children and their mothers need the government’s help. That congressional Republicans will (mutedly) cheer the Supreme Court scrapping Roe while they are blocking legislation that would make it easier for parents to raise children is the ultimate hypocrisy.
What’s Going On
In my latest column for MSNBC, I write that Donald Trump hasn’t simply defined deviancy down … he’s defined it completely out of existence.
J.D. Vance’s victory in the Ohio Senate Republican primary shows that Donald Trump’s control over the Republican Party is stronger than ever.
Jonathan Chait persuasively argues that JD Vance is a budding authoritarian.
David Graham warns that the 2022 midterms could bring a wave of wackadoodles.