Thursday, May 19, 2022

More Screeds About Babies and Birth

The common law arose out of lived experience. And when it got too far removed into abstraction, equity from the church courts provided a new measure of fairness and justice. The final leg of the triad was Parliament, which provided laws for the common good based on representation. Each part sought the same telos from different perspectives.

And each part is equally at risk of losing contact with lived experiences. That’s the most fundamental flaw of the Dobbs analysis: all that matters is a proper interpretation of the law. It is not even a proper interpretation, but it adheres to that standard as a shield people with preferences and power can hide behind. They hide behind it because that makes it easier to deny the humanity of others and affirm only theirs.

Human beings will be affected by the repeal of Roe. How fundamental that opinion is now is that it still sets the terms of the discussion. Trimester, viability, weeks of the pregnancy. Roe didn’t invent these terms, but we still assess abortion on its terms. Any discussion that is not about an absolute ban (life beginning, inviolate when sperm enters egg), is predicated on the structure of Roe.  Even Texas' abortion law, commonly known as SB8, is written with the terms of Roe in mind; not just to provoke a court review of Roe, but because any discussion of "something" (v. no possibility of choice at all) is done in terms of weeks of pregnancy.  Which is the framework established by Roe.

The argument returns to the terms of Roe, over and over again. Who is in charge? The woman? Or society?  Whose interest must the served?  The woman's? Or society's?  When is the fetus "human"?  At conception?  Heartbeat?  Quickening? Viability outside the womb?  We haven't changed the importance of any of those terms, crucial to Roe as well; and we haven't really moved viability down below the threshold Roe recognized.  Even then, it's a question of technology and access:  a woman in Houston has far greater access to neonatal care that can establish true viability, than a woman in rural Arkansas or New Mexico; or much of Texas west of San Antonio and east of El Paso, for that matter.  "Viability" is not the absolute term some want it to be.  So much depends, not on a red wheelbarrow, but on a trained medical staff, the medical facilities, and, yes, insurance or the ability to pay.

We do not impose any of this on men. We do not mandate they reproduce, or get vasectomies. We don’t sterilize women (anymore), either. But we will demand they reproduce if they find themselves pregnant?

What is the legal basis for that?

The only legal argument presented in Dobbs is that we can't stop it, so we might as well enforce it.  You can't force a person to perform the terms of an employment contract, but you can force any pregnant woman to carry the pregnancy to term?  Perhaps even prosecute her if there is a spontaneous abortion?  Do you think the states that want to declare life present at "conception" won't do that?  The legal reasoning in Dobbs (such as it is), is a conclusion searching for foundation, and it finds that foundation in the idea that "privacy" is not a word used in the Constitution, so we cannot extend the idea from the 4th amendment to even privacy in our telephone calls.  Oh, wait, we can, because such calls involve any and all members of society.  But extending "privacy" to a woman's decision to carry a pregnancy to term?  No, that was not contemplated by the "Founding Fathers," or they'd have made sure the word was in the Constitution (or in the Bill of Rights, which actually amended that Constitution shortly after it was ratified.  But some amendments are more "embedded" than others, and the 14th is still johnny-come-lately enough we can refuse to find the concept of privacy a matter of equal protection or due process.  Because tradition, donchaknow?  And "Founding Fathers."  And women, who really should be subject to men.  I mean, that's traditional, too, right?  So it must be more legal than Roe.)

It all comes down to a matter of control. It is always a matter of imposing the will of those with the power on members of society who, because of simply their biology, are deemed subject to society’s will. Conceptually it is literally no different than slavery. We cannot force people to work against their will, even if they are paid to do so. You can’t enforce an employment contract by specific performance. Even if you pay for the labor under the terms of the contract, a court order that you provide that labor is an order imposing slavery. The courts will not do that, but will allow laws to force women to bear a pregnancy to term? Even to criminalize pregnancy that ends prematurely? It will even enforce those laws?

What justice is that? What equity is that? How is that in any way in keeping with the best traditions of the common law? How is that cruelty, that intrusion into the lives of people based solely (as American slavery was) on biology, in the best interests of society?

Especially when those "interests" are defined by these people:
"You may call me 'Doctor.' Rep. Asshole." You'd have paid good money for that show, huh? Dan Bishop thinks he's clever. The point he's trying to make seems to me that women should be subject to a law that would otherwise constitute slavery under the 13th Amendment. Because "women," right? Because states' rights, that's why! And we DID NOT fight a war for/against slavery on that principal! Well, not according to people who think the wrong side won that war.... None of those rights exist unless the Supreme Court says they do. Aye, there's the rub; the Court giveth, and the Court taketh away. And yet the Court wants us to all say "Blessed be the name of the Court." Fat chance.
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