Reading the reasoning of a lawyer, Norman Finkelstein, on Roe v Wade, which half a century ago established federal protection of a woman's right to choose abortion for an unwanted pregnancy, and on the leaked Alito decision that could end it, I was struck by the bloodless sacrality at the heart of it.
The landmark US Supreme Court decision upholding a woman’s (qualified) right to abortion, Roe v. Wade (1973), pretended to avoid the enigma of when life begins: “We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.” But the Court was being disingenuous. First, except by artifice, it seems impossible to decide the legality of abortion without engaging this irreducible question. Second, even if only by indirection, the Court did stake out a position on when life begins. The problem, alas, was that its position was wholly unpersuasive and wholly political.
... However much the Court denied it, viability was ... the point at which it determined life began. It made sense politically as the Court reached for the broad center in public opinion. But its own determination was as capricious (or rational) as the others. It grounded the right to abortion during the first stage of pregnancy in the Fourteenth Amendment right to liberty, and it grounded the State’s right to intervene during the later stage of pregnancy in its obligation to protect prenatal life. The Court presents this resolution of the abortion enigma as a compromise between the extreme pro-choice and pro-life positions. But it’s only a balanced decision if life begins at viability. If, however, life begins at conception, then, by the Court’s own reasoning, a woman’s right to liberty would in general be trumped by the fetus’s right to life, while if life begins at birth, then State intervention prior to birth would in general violate the woman’s right to liberty.
Truth be told, the whole of the Court’s jurisprudence is absurd as it is premised on the belief that an insoluble moral enigma—when does life begin?—can be resolved by a clever turn of phrase or, less charitably, verbal subterfuge. The intractable fact is that, for all anyone knows, the so-called rigid pro-life position might be vindicated by History. Indeed, if the jury is still out, and it’s human life that’s at stake, then isn’t the categorical imperative to err on the side of caution: if it might be life, then act as if it is life?
Are we just raising questions with this approach, or are we begging them? Finkelstein's reading of the decision seems to be fixated (perhaps appropriately for all I know) on how closely it adheres to the matter of what is legally correct in this instance. His admonition in light of what he appears to acknowledge is the present unsettleablility of the question of when life begins and should be protected is to err on the side of caution for the fetus which cannot speak for itself. On the matter of whether a fetus has life that the state is bound to protect, Finkelstein acknowledges the unanswerability; but on the question of whether a fetus declared to have life has the right to be born, this controversy Finkelstein appears to take as a given.* In light of the insolubility of both questions, as I read the reasoning behind Justice Blackmun's majority opinion on Roe v. Wade, I am impressed by the pragmatic judiciousness of it.
Speaking as a person with perhaps the least legal, least reverential mind that anyone ought to dare to bring to bear upon such a topic, I find the notion in this day and age, when an intrauterine device can silently, unobtrusively and definitively intervene as intended in a way that merely certifies the futility of a sperm's already doomed mission of fertilizing an egg, when a pill can artificially induce infertility or reverse a fertilization within hours of it happening, when the termination of an unplanned, unwanted or forced pregnancy can be done in a way that does not add to whatever trauma occasioned it, I can outdo Finkelstein's bloodlessness. If a fetus might be life: what's it to you? Abortion exists in nature. It will always be with us. A fetus cannot have an opinion. The woman carrying it is alive and among us. Her fetus is none of your business. The opinion of the man, who frequently is not even around afterward to be polled on the matter, is only relevant it seems to me when it supports the reality the woman is faced with.
Life doesn't happen every day, even for the living. "Potential" life is thwarted at every turn-- by abortion, by miscarriage, by contraception, by abstention, by menstruation, by infertility, by mood, by alcohol, by having a work deadline pop into your head just when it was getting good. My wife and I were recently contemplating how differently our lives would have gone if we had not been rejected as a young impoverished couple for a mortgage on a beautiful old house we had let ourselves unrealistically dream about owning in the small provincial city in the nation's heartland we were living in at the time. Of all the differences it would have made in the trajectory of our lives to have gotten that mortgage instead, the most devastating was the absence from it of our daughter-- because surely the sperm and the egg that made her could only have met that particular moment in the very different circumstances of the lives we were then able to make for ourselves many miles, many changes and many years later.
This is not a case for the sanctity of life, but for the virtual impossibility of any single life, even against the inexorable onslaught of life constantly trying to happen. The minutely infinitely particular circumstances in which any one life must have started-- especially compared to the overwhelming finality of those uncountable multitudes that fail to happen-- to my mind weakens the notion that human life could be considered sacred before it is born into this world. If the fertilization of a single egg by an individual sperm is so unlikely that it could have been easily undone without any intention, how could it be sacred? If every life that makes it to birth is pre-determined in its quality and its duration, do choice, will and sacredness have any meaning? If every pregnancy must by statute be brought to term, that's not holiness, that's an algorithm. Who is anyone to decide that a woman must not take advantage of readily available technology to improve the circumstances under which she might bring forth a child into the world? Birth is demonstrably not a right for every fetus even by cosmic justice. How differently might we treat it if we recognized it as a privilege?
It seems to me that Alito's decision on the undecidable question at the heart of the Mississippi case that apparently will undo Roe v Wade nearly 50 years after it became established law, and that potentially threatens to undo protections of so many other intimate individual choices and behaviors that required nearly 200 years of social development for the all-male until 1981 Supreme Court to recognize is, just as you would imagine it to be, just as arbitrary as Blackmun's but on the side of the meddling state of Mississippi and against the women whose lives and autonomy it interferes with.
In pinpointing the state's interest in the sacredness of a human life at viability, Blackmun might have been overplaying the government's hand, but his argument strikes me as a genuinely valid compromise that in any case has proven for nearly 50 years to adequately protect the right of a woman to choose for herself whether to continue or to terminate the circumstance of an actual pregnancy actually confronting her. The rescinding of this rare instance of governmental decency in a matter of individual freedom would be not merely tragic but barbaric.
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* If I am following Finkelstein's legal argument, judicial protection of a woman's choice at the Federal level is overreach, but local legislative or democratically chosen protection of the right of a fetus to be born should bind the woman pregnant with it.
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Postscript: Several years later, I realize I misread Finkelstein's argument about Casey, the 1992 decision that introduced viability as the arbitrary point at which the court determined life begins as a way of limiting the freedom of a woman to choose abortion to terminate an unwanted pregnancy. As Finkelstein says, by arbitrarily and unconvincingly setting viability as the boundary between legality and illegality of abortion, it was the court that created the vulnerability in Roe. In that event my argument is with Casey and Dobbs, not necessarily with Finkelstein on this point.
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