Sunday, January 06, 2008

On Abortion, And Why Judge Alito's Views On The Subject Are Not The Issue

[Originally posted at on January 11, 2006]

With the start of Judge Sam Alito's confirmation hearings to the position of Associate Supreme Court Justice, the never-extinguished embers left behind by the controversial 1973 Roe v. Wade decision (which legalized abortion in the United States) have been fanned once again. Many people of diverse political conviction, but liberals in particular, fear that Judge Alito's confirmation will bring about a reversal of that landmark case, and see a reason and an opportunity to bring him down. Until now, I have chosen to avoid the subject of abortion, because people have a tendency to lose their minds on this highly controversial subject, and reasoning often seems impossible. But now that liberals have walked, once again, right into the trap laid by Republicans, who love nothing more than when liberals make abortion rights their focal point and lose sight of everything else, I have to throw in my two cents on the subject.

I should open by saying that I am guided by socially progressive ideas and by liberal philosophy. I consider myself a progressive on most social issues. As proof, I offer the following examples:
  • I believe in universal, federally-funded healthcare.
  • I believe that federally-funded social programs aimed at lifting the poor out of their condition should be a moral and budgetary priority, because poor taxpayers should get something back from the system they pay into without having to be rescued by faith-based initiatives that, incidentally, they might not subscribe to.
  • I believe in a publicly-funded education system that gives everyone a shot at being admitted to the best institutions of higher-learning, based on merit rather than lineage.
  • I believe in a government-subsidized public transit system, both as a means of reducing traffic congestion and as an alternative to an unsustainable gas-based system of mobility.
  • I do not consider the death penalty to be a valid deterrent to crime, nor do I consider it an ethical form of punishment, particularly for a society which claims, when it is suitable to do so, to be based on Christian values. (Besides, the death penalty assumes human infallibility, a fallacy that has continuously been disproved through millennia of history.)

I could go on, and on, but you get the idea. Besides the fact that I am an unabashed progressive, you should also know that I am not a religious person, in the sense that I am not a follower of any one religion. No one could accuse me of being a religious zealot, a Christaliban. I was raised a Catholic but I rejected religion at the onset of my teen years, and I never went back. Over the years I have struggled to reconcile the catechism I was imparted in my early years with my terminal disillusionment of organized religion. I have yet to succeed, though I have to say that Christ's teachings of tolerance, acceptance, and love for our brothers seem a good recipe for a better life for everyone.

I hope you will forgive this long preamble. It was necessary to set the stage for this shocking and climactic revelation: I am, though not across the board, against abortion. I am aware that the question of whether life begins at conception or at birth is one that has yet to find universally accepted answers. However, regardless of whether the life form inside a mother's womb does constitute a person, an entity endowed with legal rights, modern medical science has given us sonograms, and what they show, even in the early stages of a pregnancy, is a human being developing inside a mother.

Surprise, surprise: a progressively-minded individual, against abortion! What a rare bird! Well, that would be me. I do not believe that abortion is a human right, let alone a right granted by the Constitution. The legalization of abortion is, to a large extent, the price that modern societies have chosen to pay for sexual revolution. Abortion is the pill's dark side. I support the right to each person's sexual freedom on rational grounds, but I believe that every type of freedom comes with great responsibility. In good conscience, I cannot accept the idea of abortion as another birth-control method. Seems a little late in the game to decide that, oops, I really did not want to be pregnant. Ideally, abortion should be reserved strictly to those cases where a mother's life is at risk, or when the pregnancy is the result of physical violence and abuse. In all other cases, no effort should be spared, within the law, to preserve the life of the unborn child. Abortion as an alternative to missing or failed contraceptive measures represents the failure of mankind to recognize that life has value beyond the appeasement of one's individual self. If fails to promote human progress. (Oh my, I sound just like the Pope! I predict a future of therapy for myself!)

The time has come for another, even more shocking revelation: while I stand steadfast by my conviction that abortion is ethically wrong, a nasty byproduct of the prevailing egocentricity of society, and a terminal and careless remedy to a succession of selfish acts, I still do not think that Roe v. Wade should be overturned. I hold this opinion for a series of practical (and also ethical) reasons. First of all, while I believe abortion to be an unethical act, I recognize that many do not share my view. Many of my best friends would disagree with me. The current moral climate is not conducive to a change in the law. Abortions would continue to be a (sad) fact of human life, because there will always be those who will seek an abortion, and those who will provide it, whether it is legal or not. That has always been the case with anything that the government seeks to outlaw, be it alcohol, drugs, medical procedures, etc. Abortion would be no different, particularly in a hedonistic society like ours. Secondly, reversing Roe v. Wade would not outlaw abortion. It would only allow individual states to introduce bans on abortion, with the result that economic factors would play a major role in a woman's ability to get an abortion. Kansas might want to introduce a ban on abortion, but it is highly unlikely that more progressive states would do so. Wealthier women would simply skip across state-lines to get their abortions, while poorer women would either be forced to carry unwanted pregnancies to term or to resort to unsafe abortion procedures that would endanger their lives in the process. Thirdly, letting states outlaw abortions would address only one side of the moral equation, i.e. protecting the life of the unborn child. It would do nothing to protect the life of the same child once he or she has come into the world. Without comprehensive social policies intended to defend life AFTER birth, bringing more children into the world, particularly those born against a parent's (or both parents') desires is not a particularly moral thing to do. Given the lack of political will to help children that have already been begotten, often by the very wing of the Republican party that most adamantly opposes Roe v. Wade, forcing the birth of unwanted beings seems "cruel and unusual" (to use words that do appear in the Amendments to the Constitution of the United States.) Finally, much as I strongly feel that abortion is an inhumane and unethical remedy under most circumstances, it would be impossible in the current societal climate to ban it, given that it is still widely regarded as belonging to the private moral sphere. Legislating morality is a line that I just do not want to cross, absent an incontrovertible rationale for the common good.

Now back to the issue of Judge Alito's confirmation. In spite of the widespread outcry, the view that the Constitution does not grant an inalienable right to abortion, which Judge Alito has expressed in 1985, is neither scandalous nor untenable. In fact, the ruling on Roe v. Wade rests largely on a very broad interpretation of the XIV Amendment, one that has been called into question by many constitutional experts and scholars of disparate convictions and political backgrounds, like Yale Law School Professor John Hart Ely or current Supreme Court Justice Ruth Bader Ginsburg. Why the XIV Amendment's wording that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws" should be interpreted to support the right to abortion but not, for example, the right to own and use marijuana or to request to be euthanized is a legal mystery that I am not equipped to unravel. However, because the abortion issue has been so highly politicized and artfully polarized, many people fail to recognize that the U.S. Constitution no more grants women a right to abortion than it grants a right to the "pursuit of happiness." That right, often misquoted as being stated in the Constitution, is in fact a part of the Declaration of Independence.

When it comes to abortion, reason often flies out the window, on both sides of the political spectrum. In the real world, abortion is a very complex topic, and reasonable people have often irreconcilable views of abortion. Not all progressives are pro-choice, and not all conservatives are pro-life. Many supporters of the death penalty are anti-abortion, and many supporters of abortion are against the death penalty. There are too many individual components in each person's decision to support or oppose abortion. In Washington, however, abortion is used merely as a tool to divide and conquer. I know many otherwise reasonable people who been co-opted as "single-issue" voters because of abortion, and who are willing to vote against every other ethical fiber in their bodies in order to further their singular view on abortion.

Knowing what we already know about Judge Alito, it seems to me that liberals who are looking for reasons not to confirm him as an Associate Supreme Court Justice would do well to look beyond his views on abortion. Watching him defend some of his past statements during the confirmation hearings, I have formed the opinion that his propensity to side with his past employers, his refusal to answer some very simple questions (in particular the one on whether it was appropriate for the Supreme Court to take on the Bush v. Gore case in 2000), and the logic of some of his past rulings are worrying and somewhat frightening. They are particularly worrying considering that the person who picked him, President Bush, has a clear anti-democratic agenda and a history of rewarding loyalty over competence, obedience over independence of thought.

With his long history of rulings, consults, and legal advice, there should be no scarcity of evidence that Judge Alito may be a bad choice as Supreme Court Judge. His support of the right of an administration to eavesdrop on private communication without a warrant offers a good opportunity to call his judgment into question, particularly in these times. Why, Democrats might even find some unlikely allies across the great Republican divide, given how frayed the public's nerves are on this particular subject. Also, his defense of the strip-search of a ten-year old girl during a drug bust, even though she was not mentioned in the search warrant that was used by the police, is a point on which Judge Alito's judgment and his wisdom can be attacked on. But his position on Roe v. Wade is hard to argue against, since it is founded on a strict interpretation of the Constitution. Controversial, maybe. Unreasonable, it is not.

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