We'll start with Instapundit:
UPDATE (FROM GLENN): A friend comments: “Whatever position you may have on the issue, leaking a draft SCOTUS opinion to try to change the outcome of a case is a new level of brinksmanship that speaks to the hyperpoliticization of law schools and an accompanying valorization of ‘activism’ in higher ed.”
Assuming this was leaked by a clerk, the leaker should never work in law again. It’s a betrayal of the highest order. But, of course, professionalism has proven to be weak sauce indeed when it comes to restraining activism.
More thoughts from Josh Blackman. “The Court should issue the Dobbs opinion as soon as possible. Do it tomorrow. Don’t wait till Thursday, or next Monday, or the end of June. The longer this process drags on, the worse the Court will be . . . if any members of the majority changed their vote in response to the leak, that change will be seen as a direct response to this leak.”
Here’s more, including the draft opinion, at the Washington Examiner.
When the backlash hits, I predict that Politico will become sudden First Amendment absolutists.
From the comments: “That can’t be right. I was told the Responsible Gatekeeper Media did not report on or print information that was leaked or hacked.”
Of course, to be fair, though everyone seems to assume the leak came from someone on the left, we don’t know for sure.
Plus: Supreme Court Barricaded After Bombshell Abortion Leak, Leftists Start to Call for Rash Action.
Prediction: The people who accused Trump of “incitement” will have differing standards here.
Plus, from a friend:
Biden could immediately order additional protection for all Supreme Court justices.
Garland could immediately order a criminal investigation into the leak.
Roberts could order the immediate release of the actual Dobbs opinion.
Each of these acts would have the effect of insulating the Court from the intended, potentially violent, political pressure. We’ll see if any of them does any of these things.
We will.
I'm not sure where even to begin. I think we can all agree that a leak of a draft of a decision is unequivocally a bad thing; let's just get that out of the way. Next, I'll say I'm shocked—assuming the leak is true and not some frenzied, random attempt at causing chaos—that the Supreme Court might actually do something I never thought it would do. Even conservative justice Brett Kavanaugh, when asked about his position on Roe v. Wade during his confirmation hearing, affirmed that it was the law of the land. I had long assumed that there was, whatever else might be going on between the left and the right, an understanding that Roe v. Wade would never be touched. Yet I have always heard constant murmurings from the left that the undoing of Roe v. Wade has been a major plank in the rightie agenda. Up to now, I've dismissed such talk as the paranoid grumblings of an oversensitive left, but I'm willing to admit I might have been wrong. Blame my normalcy bias.
Inevitably, in discussing this perennially hot-button issue, I'm going to have to talk about my own position on abortion, which is something I've long hesitated to do on this blog because, frankly, I don't have a clear stance. But first, let's explore the practical aspects of the current, and possibly future, situation.
Currently, Roe v. Wade is the law of the land, and it makes abortion legal in all 50 states. The ruling, made in 1973, basically says that the Constitution does indeed grant a woman the right to choose to have an abortion without excessive government interference. The ruling doesn't mandate abortion, so if you're a pregnant woman, the ruling doesn't empower the state to compel you to abort. Abortion is a choice. Pro-lifers, of course, see the situation differently, mainly for moral reasons, but I'll get to that later. For now, it's enough to know that abortion is a reality, and it's legal. Individual states do, however, have the right to tweak the conditions and availability of abortions within limits, but never to the point of foreclosing abortion as a choice for the mother.
So that's the current reality. What about a possible future in which Roe is overturned? Would that be the tragedy that many on the left think it would be? My opinion is that it would only be a tragedy if the left thinks that most individual states would choose to make abortion illegal. But how likely is that? What reason is there to believe this? For myself, I don't think the undoing of Roe would necessarily be all that tragic because I suspect a lot of states—at least half—would affirm abortion's legality. Plenty of states in the South would likely make abortion illegal, but up North, abortion would still have a home. So if you're a pregnant woman in the South, and Roe has been overturned, and your state has chosen to make abortion illegal, what this means is that you're in for a long drive to have your pregnancy terminated. Other than that, I'm not sure what else changes, practically speaking.
The pro-life camp isn't content to leave things as they currently are, but while I know a lot of people in that camp openly want Roe overturned, I may have underestimated just how many people on the right feel this way—and how strongly they feel. For most pro-lifers, the issue is one of rights and personhood. A fetus is considered a human life in full from the moment of conception, and it takes only a few days for the fetus to start forming the distinct traits that are the mark of a fully human body. Being a fully human being, the fetus is, according to this point of view, imbued with all the rights of a person in full, so the termination of a pregnancy is the termination of a person, i.e., murder. No "just a clump of cells" argument from the pro-choicers will impress a pro-lifer who believes the above. Dr. Vallicella is a good source for a long list of philosophical arguments affirming the humanity of the fetus, and he has made efforts to couch his arguments in non-religious language so as to speak to pro-choicers on their own terms (because, after all, you can't persuade an atheist by waving the Bible around). Here, in fact, is one of Dr. Vallicella's core arguments:
1) Infanticide is morally wrong.
2) There is no morally relevant difference between (late-term) abortion and infanticide.
Therefore
3) (Late-term) abortion is morally wrong.
At a guess, something like this argument lies at the heart of every pro-lifer's anti-abortion stance. The pro-choice side claims, by contrast, that the fetus, being part of the mother, falls under the mother's right to do with her own body whatever she wishes. The pro-life side counters that the fetus is in the mother's body, is nurtured by it, but is not part of her body in the sense intended—rather, the fetus is its own life. The fetus is not the mother and therefore not part of the mother.
For me, all of this remains an open question, and despite having chewed over this issue for a very long time, I honestly don't know what to think. I wish I had the clarity of either side of this debate so I could affirm that, yes, abortion is clearly murder, or yes, abortion is clearly the mother's choice.
On the pro-choice side, I've pondered the question of cloning. Here's a thought experiment with a reductio ad absurdum: let's say we reach the point where a fully functioning human clone can be made from any healthy human cell. Once we reach that period of history, then that means that any and all of my healthy cells can be used to make a clone. Does this mean that, whenever I bleed and wipe away my blood, I'm killing millions of potential Kevins?* Would that also be true every time I spit or otherwise lose healthy cells? I should think this line of thinking would be absurd for most people so, if we go back to that early stage of a woman's pregnancy, here and now in the 21st century, couldn't the "clump of cells" argument be seen as valid, at least for the first few days of a pregnancy?
I can hear the answer in my head: most women don't even know they're pregnant just a few days after conception, so the question is moot. Still, I think the reductio is worth pondering.
And what about the question of children conceived through rape, or children who will be born massively deformed and in extreme pain? Should a woman have no recourse to abortion in such cases? It seems rather cold and merciless to ask a woman to bear a child she never wanted to have. First forced into a sexual situation through rape, then forced to carry her inadvertent child to term—this strikes me as doubly cruel and deeply immoral. I lean toward the idea that abortion should at least be available as an option in such instances. I know some pro-lifers will argue strenuously for adoption, i.e., even a child of rape is, in this situation, an innocent victim, undeserving of termination, and that's true as well for a child who is horribly deformed or otherwise physically miserable. Such children deserve a chance at life, the pro-lifers will say. Is that true? Is it really that simple?
And now that I think about it, maybe it comes down to the moral question of whether a parent actually does have the power of life and death over his or her children. Bill Cosby, on his old sitcom, once joked to his son, saying, "I brought you in this world, and I'll take you out!" What if that's not a joke? What exactly are a parent's obligations to his or her children? To love, feed, and nurture them until they're ready to leave the nest? To do everything possible to promote their flourishing? What about to kill them to prevent them from being taken and defiled by an invading enemy? What about a milder example, like that of a parent who, perhaps out of anger, withholds nurture, sending his or her offspring out into the cold world ("Think you're big enough to run your own life? Well, go ahead and leave, then!")? What if kicking the kid out of the house isn't tough love but is, instead, a function of a lack of care? Can it ever be morally right for a parent to stop caring for a child? Obviously, kicking a kid out of the house isn't the same as aborting a fetus, but both actions demonstrate the great power a parent has over a child's life.
On the pro-life side, there's the question of cutting off the development of a potential life. Even if a fetus is merely a clump of cells, it will one day be—assuming no disturbances—a baby that's viable outside the womb, and thence it will become a fully fledged child, youth, teen, and adult. All of that potential is nipped in the bud when you end a pregnancy, along with all the opportunities that come with parenthood. With an abortion, lives that could have been changed now won't be. The tree of future possibilities is pruned, and that, too, can be seen as immoral—the unilateral amputation of someone else's potential.
Over the years, I've sat on the fence and pondered the above arguments along with many others. By this point, everything that can be said about the morality of abortion has been said. I think both sides of the debate can agree that abortion isn't a pleasant thing: even a woman who gets an abortion doesn't go skipping gaily into the abortion clinic and come skipping out of it when the procedure's done—not unless she's a psychopath. A lot of women, post-abortion, report feeling some version of "What have I done?", not, "Boy, I'm glad that's over!" The pro-lifers can at least compassionately respect the fact that an abortion tends to weigh on the mother's conscience even if they don't respect the abortion itself. The pro-choice side can at least respect the idea that the fetus is indeed fully human and, even if it's only a clump of cells, is going to develop into something much more, given time.
I expect I'll be pounded by both sides for my lack of clarity on this issue. One thing I do believe is that too many men run away in fear when they discover their lover is pregnant, abandoning her to make hard choices alone, and that abandonment is immoral, too. In a better world, the man would be there alongside his woman and would have a say in the matter of the fetus's future to show he's a responsible father—at least for as long as the fetus is alive.
Maybe, someday, the question will be made irrelevant once scientists develop a fully functioning artificial uterus (like in James Morrow's Only Begotten Daughter) in which a fetus may gestate to term: just remove the fetus from the mother, let it develop in the artificial womb, and allow a loving couple to adopt the child. In the meantime, I leave you, Dear Reader, with your clarity, while I continue to wallow in my own lack of surety. If nothing else, I respect the complexity of this issue, even if you don't see it as complex.
Consider the above post something like a first draft. It's not completely coherent; as I reread it, I can tell it's disjointed and needs work, and maybe I'll get back to it. In all honesty, this is not a topic I like touching on mainly because my thoughts on it remain so murky. Maybe one day, I'll find some clarity. For now, though, clarity eludes me.
__________
*And is there a further implication that, with all those potential Kevins, I'm now morally obliged to have millions of new Kevin-clones created for as long as I have healthy, clone-able cells—to explode myself into millions of clones? And what about my clones? Are they under the same moral obligation? Where does it end?
Here's Matt Walsh taking down pro-choice arguments:
Strangely enough, it was easier to find pro-life videos on ostensibly left-leaning YouTube than pro-choice ones. I think I found one of the latter, though:
Does a man have the right to have an opinion on this subject or only birthing people?
ReplyDeleteI've always been in the camp of not wanting the government to dictate what a person does with their own body. That's why I had to laugh at all the "pro-choice" folks who suddenly thought it appropriate to mandate vaccines. That said, we are talking about a human life growing inside another human--where do one's rights begin and the other's end?
For me, it is when the fetus is viable outside the mother's body. This shit about allowing abortion up to the day of delivery is insane to me and is indeed infanticide. But having the abortion during the first 90 days doesn't strike me as being morally wrong--I agree at that point it's a cluster of cells. In that sense, early-stage abortion is like having a cancerous tumor removed.
In my view, this solves all the moral dilemmas about rape victims and the like. Give the woman a right to choose for three months, after that it's a baby with rights of its own.