Sunday, February 12, 2017

Can a Conservative Court Reject Anti-Abortion Laws

These days supporters of abortion rights have a nagging concern that the next Supreme Court appointment by Mr. Trump would create an opportunity for the majority "conservative" members to reverse the 1973 Roe vs. Wade (RvW) ruling. This reversal presumably could lay the groundwork for states to completely ban abortion or restrict it so severely that it would not be accessible anymore.

Actually Roe vs. Wade is a weak ruling. It ignores and undermines the "individual" rights of a woman. Individual rights are much more fundamental than the right to privacy that the Roe vs. Wade is based on. The right to privacy is a derivative of the individual right. The right to privacy loses its meaning without the fundamental individual right: The right to "Life, Liberty and the pursuit of Happiness".

This ruling, RvW, a very important step for a woman's right to control her own body, has serious flaws in it. The first flaw is the perception of this ruling. Now for more than four decades the defense of this ruling has been the all consuming aspect of the "right to choose" movement. The defense of this achievement has created a bunker mentality among women’s rights groups by trying to dig a moat around the RvW ruling to defend it against attacks. This moat mainly consisted of assuring that the balance of the U.S. Supreme Court would not tilt to the "conservative" side. As all moats go, every moat attracts its own "barbarians" and RvW is no exception. Any fortification has its weaknesses and the lesson from time immemorial is that any fortress can be brought down. And that is what the opponents of the "Woman’s right to choose" have done. They began slowly nibbling away at the RvW ruling by finding its weaknesses and kept chiseling and hammering at it.

The RvW ruling gave women some limited control over their reproductive process, but at the same time kept the state's foot inside a woman's body. And this is the internal weakness of the ruling. The RvW recognized that the state has a "legitimate interest in preserving and protecting the health of the pregnant woman". Where does this "legitimate interest" come from? The state does not have a "legitimate interest in preserving and protecting" the spleen of a woman. This particular interest is actually there to bolster this other part of the RvW. The state "has still another important and legitimate interest in protecting the potentiality of human life". The opponents of RvW have called themselves "Right to Life". This name seems to come directly from the ruling and they have pushed for the recognition of the fetus as an "unborn baby", a "person". They are basically using RvW against RvW to undermine its legitimacy and have created a climate where the majority of people yet believe that the state has a "right" to protect the fetus, at least at a certain stage of its development, when its "life" is "viable".

At the same time some of the conservative members of the court are of the opinion that RvW is some sort of legislation from the bench. Among them Justice Clarence Thomas is and the late Justice Antonin Scalia was, of the opinion that for over 200 years abortion has been restricted and it is not the job of the Supreme Court to lift the restrictions and this issue should be left to the legislative bodies.

In my opinion the fundamental laws of the U.S. provide the legal basis for the court to declare any restrictions to a woman’s right to choose the terms of her pregnancy as unconstitutional. A woman's right to carry through with her pregnancy or abort the pregnancy is part of her individual right, and actually the RvW ruling has clouded this right. The right to personhood of a woman has always been there as far as the fundamental laws of the U.S. are concerned. The right to personhood of a woman has been violated since the inception of the United States, because of customs, social habits and ideological premonitions. And the RvW ruling actually validates some of these habits under the guise of the "state interest". The individual right of a woman has always been there as the fundamental law of the land.

It is time for women’s organizations and their interest groups to come out of their bunkers and leave the RvW moat and confront the anti abortion forces head on and demand the expansion of RvW whereby the law recognizes a woman as an individual. Under Roe vs. Wade a woman is not an individual. As long as the state has an interest in the reproductive organs of a woman and its processes, then she is not yet recognized as a whole person.

Here is the thrust of the argument I am putting forward: The right to "Life, Liberty and …" is not about individuals who will never have a conflict, it is about our societies where individuals will have running conflicts. The right of an individual finds its true meaning at the boundaries of those conflicts. Robinson Crusoe does not have any need for those rights secluded on his island. Many of my liberties end at the fence of my neighbor. There are all kinds of fences in our daily lives. Some fences are physical and some are not, like the speed limit on the highway. Our right to "Life, Liberty" in "pursuit of Happiness" finds its meaning when we stay within our boundaries. While we are navigating, we are bound to come into conflict with other interests. In all these conflicts the state’s role is to define or redefine where the boundaries have been crossed and keep the individuals within their boundaries. If two individuals’ financial deal goes sour, the state can intervene and determine each individual’s interest and apportion it. The state can draw a line within the conflicted interests and keep the individuals separate from each other in peace while the dispute is resolved. The state cannot enslave one directly or enslave one at the service of another to resolve the conflict. In all these cases where the boundaries have been crossed, the first responsibility of the state is to keep the individuals apart without physically subjecting one individual to another or to itself.

The state immediately runs into a fundamental problem as soon as it defines the fetus as a "person" or recognizes it as having an interest independent of the woman. To recognize the legitimacy of a fetus the state has to define the woman who bears that "fetus-person" or entity as less of a person, subjugating the woman to the fetus. When a woman decides on terminating her pregnancy the state does not have the ability to begin with a physical boundary or demarcation between the two, the woman, who is a person, and the fetus "person" or entity. It is simply impossible, as it is possible in any other legal case. Any perceived state's line of demarcation runs right through a woman's physicality. The end result is that the state would be subjecting the woman, in appearance, to the fetus "person" or entity and in reality she is being subjected to the state. This violates a woman's right to "Life, Liberty and the pursuit of Happiness".

Population decline might be a case for state's interest in the women’s capacity to "potentiality of life" as a pseudonym for policies to increase the populace. In such a situation the state could be prompted to take some steps and find remedies but the state cannot violate a woman's right as an individual. It has to resolve that issue, decline in population, either through immigration or incentives to women who are interested in childbearing. The state cannot claim a woman's body as the sanctuary for its perceived "fetus-person" or state's "interest" in the "potentiality of life". This is true for any stage of fetus development. The security of the fetus is wholly within the realm of a woman's natural instincts. Neither the state nor moral prejudices of other individuals are the ward of the fetus. When the needs of a woman override these instincts and abortion is the only choice for her, any violation of that choice only undermines the individual right of the woman. This is the most fundamental right that makes us all equal citizens.

The state’s inability to draw a line of demarcation between a fetus and the woman bearing the fetus is a clear and fundamental indication that the fetus does not have any independent identity, as is the case with any other law which regulates the relationship between the individuals or legal entities. Assumption of any legal entity for a fetus is merely an extralegal fabrication.

We have to turn the problem right back at the "Right to Lifers" not as an affirmation of RvW but by the rejection of the weaknesses in that ruling. Personhood, "unborn baby" or any independent identity attached to a fetus is merely a fabrication, devoid of any real constitutional basis. The weaknesses embedded in the Roe vs. Wade ruling overlook the fundamental individual right of a woman. A woman's individual rights need to be recognized specifically. The state has no right in possessing or subjecting a woman's body to the ideological whims of any group. We should not be incessantly fighting for a combination of Supreme Court judges who will keep Roe vs. Wade intact. We need to move beyond Roe vs. Wade. RvW in reality is a tacit rejection of the personhood of a woman and that is unconstitutional. The court needs to recognize the personhood of a woman by affirming a woman's right to choose her terms for a pregnancy. The right to abortion is part of her terms of pregnancy.

"Conservatives" in the court tend to see themselves as judges who have extreme fidelity to the text of our fundamental laws of the land. In their deliberation they always want to start from what the legal "text" says. I think the text is clear. The right to "Life, Liberty and the pursuit of Happiness" while is not part of the text of the constitution, it is the foundation of our society and our laws. I think the text is shouting out that finally we need to declare that a woman is an individual equal to any other man, whereby her body cannot be violated even by the state under the guise of a "fetus-person" or state's "interest" in the "potentiality of life". The woman's body cannot be subjected to customs, habits or any ideological group regardless of the age of these habits and customs or how "abhorrent" a woman's decision feels. If "conservative" judges are true to their method of interpreting the constitution, their ruling should be unequivocal. It has to be for the recognition of a woman's right as a whole person that no law could violate and the test of it is the right of the woman to her reproductive processes without any state interference. There is a clear discrepancy between the implementation of the anti-abortion laws and any other law. The fact that anti-abortion laws cannot clearly delineate the contending individuals that the anti-abortion laws seems to want to protect, one the woman is clearly an individual and the other the fetus is clearly not an individual invalidates the anti-abortion laws.

The recent demonstrations and the support that has been generated are clear indications of women's social position today. This position is consolidated enough to warrant a bold stand, to challenge the anti abortion laws, demanding the court to move beyond the Roe v. Wade ruling. It seems to me that legal arguments could be developed that even a conservative court would want to move beyond Roe v. Wade instead of weakening or overruling it. Could this be the case? I like to pursue it and find out.

If you can, bring this argument to the attention of legal experts that you have access to and please let me know of any contrary arguments.

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