There are a series of bad guys in the Book of Mormon,
many of them lawyers, who were described as having “a perfect knowledge of the
language of the people,” or “learned in all the arts and cunning of the people,”
or being “expert” with “much power of speech.” (See Alma 10: 14-15, 26; Alma11:21; Jacob 7:4). This has concerned me, since language, power of using
words, is what I’m trained to do. And I know a lot of lawyers, including my
son, that I don’t believe fit this bad-guy category.
So language skill in itself is not
bad. It’s using it to persuade people to believe what is wrong that is the
problem.
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US Supreme Court Building
screenshot from C-SPAN |
We saw some of these “experts,” these
“much power of speech” types during oral arguments before the Supreme Court on
December 1st, related to the abortion case Dobbs v. Jackson Women’s Health Organization. This is Mississippi’s prohibition of abortions
after 15 weeks.
I’m glad the cast of people in Court Wednesday
included good guys with “much power of speech” as well. The full cast included
the lawyer defending the Mississippi law, Mississippi’s Solicitor General,
Scott Stewart. And there were two lawyers on the side against the law, U.S.
Solicitor General Elizabeth Prelogar, meaning the Biden administration was on
that side; and Julie Rikelman, attorney for the Center for Reproductive Rights,
the plaintiffs claiming the law infringes on their rights. There were also the
nine justices, whose job was to listen to arguments and ask relevant questions.
Lecturing Is Not Asking Relevant
Questions
Almost out of the gate Justice Breyer
spends his time lecturing Mississippi’s Solicitor General—and his fellow
justices, and us listening, on the need to read more thoroughly, as he implies
he has, section 505 U.S. 854 to 869. And then his question is, “What do you say
to that?” The issue he’s getting at has to do with stare decisis; under
what conditions can a prior case be overruled. Because this case has the
possibility of overturning the Roe and Casey cases. But he’s
asking the question in a way that says, “You’d better see it my way or else.”
He’s not open to information.
The justices often give hints about their
upcoming opinions in the questions they ask. They have already read the briefs
from the plaintiffs and defense, plus any amici briefs that may be supporting
either side. But oral arguments are for the presenters to make clarifications to
the Court, not the other way around. Sotomayor does some similar lecturing
later as well.
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The nine Supreme Court Justices
screenshot from C-SPAN |
The defense was, I thought, adequate.
But Scott Stewart was not as smooth and stellar as I would have hoped. Still,
the meat is in the briefs.
The two female lawyers on the other
side were both very sharp, well prepared, calm, and businesslike. And wrong. How
do you know such a person “with a perfect knowledge of the language of the
people,” who is “expert” in doing their lawyering—how do you know such a person
is wrong? You tune in to what you know is truth, and then notice when they
depart from that.
Where in the Constitution?
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Mississippi Solicitor General Scott Stewart
screenshot from C-SPAN |
The key point of the law’s defense is
that Roe and Casey invented a right that does not exist in the
text of the Constitution. They made it up. They did it in such a way as to stop
debate and prevent states from making their laws as they see fit. And now that
we have 50 years of experience and more medical and scientific information
about the life of the unborn, we must take that into consideration. It’s time
to rethink those cases and allow states to make the determination.
Justice Thomas was clearly on that line
of thinking when he asked US Solicitor General Julie Rikelman, “I know your
interest here is in abortion. I understand that. But if I were to ask you what
constitutional right protects the right to abortion, is it privacy? Is it
autonomy? What would it be?”
She doesn’t claim either privacy or
bodily autonomy, as previous abortion cases have done. She says it’s “liberty,”
based on the 14th Amendment. A state can’t deprive a person of
liberty without due process of law. Liberty is a word she’s defining way too
loosely here. It means being free to move about, to not be confined in prison, in
jail, in some institution, or maybe in your home under court order. You don’t lose
your right to liberty without due process. In other words, by being found
guilty in a court of law of a crime for which the punishment is a loss of
liberty. Lockdown orders during the pandemic could qualify as being deprived of
liberty without due process of law, if you want another context.
Rikelman says, “The Court has defined
liberty as autonomy, including the right to end a pre-viability pregnancy.” She
doesn’t explain why the Court defined liberty that way.
She is saying that pregnancy equals a
loss of liberty. And that the requiring of a pregnant woman to continue carrying
a pregnancy for additional weeks is depriving her of liberty. So, is pregnancy
equivalent to a jail sentence? Is it punishment, as Obama once called it? And,
if you’re warped enough to say yes, is it a punishment inflicted on the woman
by the government rather than by her own actions, and therefore something the
government ought to be responsible for alleviating her from suffering?
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Plaintiff's Attorney Julie Rikelman
screenshot from C-SPAN |
The loss of liberty, Rikelman
explains to us, is the limit of being able to work or do other things one would
do—if one were, say, a man, who doesn’t get pregnant.
So, this argument for abortion is
saying that living life as a woman is inferior to living life as a man, because
of the things that are uniquely feminine but that may limit pursuing things
like a career or education (although, if you look at Justice Amy Coney-Barrett,
you might wonder at the assumption of limitation). And we as a society are
required to compensate women somehow for being women. And the required
compensation they’re asking for is the right to kill their offspring—after they’ve
engaged in the sexual act that brought about the pregnancy.
Whatever court decided women were
disadvantaged by being women—not by how they were treated in hiring practices,
or in human interactions, but by simply being women—ought to explain that misogyny.
Since they can’t explain it, their
rulings are ripe for overturning.
Overturning
In the discussion, Kavanaugh seemed
to imply that the Court has often overturned previous opinions, and he listed
several. He seemed to think returning the Court to neutral might be a goal. Following this line of thinking about when/if a case could be overturned, Alito
had a satisfying moment when he put the US Solicitor General Prelogar in the
uncomfortable position of defending Plessy v. Ferguson, a case that sustained
racism. Alito asks:
Alito: Suppose Plessy v. Ferguson
was reargued in 1897, so nothing had changed, would it not be sufficient to
say, that was an egregiously wrong decision on the day it was handed down and
now it should be overruled?
Prelogar: It certainly was
egregiously wrong on the day it was handed down, Plessy. But what the Court
said in analyzing Plessy to Brown and Casey is that what
had become clear is this idea that segregation didn't create a badge of
inferiority had been entirely mistaken—
Alito: Is it your answer that we
needed all the experience between 1896 to 1954 to realize that Plessy was
wrongly decided? Can you answer my question? Had it come before the court in
1897, should it have been overruled or not?
She tried to claim that it was wrong
from the start, but it was not to be overruled for being wrong, but for being
unworkable. But Alito points out that,
Alito: The south built up a whole
society based on the idea of white supremacy. So there was a lot of reliance.
It was improper reliance. It was reliance on an egregiously wrong, on what
legal protection means. Your answer—I still don't have your answer clearly. Can
a decision be overruled simply because it was erroneously wrong, even if
nothing has changed between the time of that decision and the time when the
court is called upon to consider whether it should be overruled, yes or no? Can
you give me a yes-or-no answer on that?
Prelogar: This court, no, has never
overruled in this situation based on a decision that it was wrong.
I think she loses on this point but
was panicky enough about the possibility of the badly ruled Roe being
overturned that she had to claim the Court couldn’t notice that it had
previously ruled wrongly.
Undue Burden
One of the arguments was about
whether the Mississippi law might cause an undue burden on women without enough
money: “Not everybody can afford contraceptives, contrary to the—your
adversary's brief. In fact, 19% of the women in Mississippi are uninsured, so
they don't have money to pay for contraceptives.” This was Justice Sotomayor
not actually asking a question but inappropriately offering up an argument for
her pro-abortion side to use.
In his rebuttal at the end, Scott Stewart points out that, contrary to Sotomayor's belief, lack of
insurance does not necessarily mean no contraceptives. Insurance can cost hundreds
of dollars a month. I did a search online (hoping I don’t get tracked and then
bombarded with ads), and contraceptive pills are easily available for about $25—hard
to tell whether that was a 1-month or 3-month supply. Or condoms are readily available
at any drug store, or Walmart, or gas station convenience store. The cost of an
abortion, on the other hand, is at least $600 at Jackson Women's Health, plus loss of some days of work,
plus any travel, if necessary. So, to say that abortion is the choice when you
can’t afford contraceptives would be laughable—if it weren’t so grim.
Viability
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US Solicitor General Elizabeth Prelogar
screenshot from C-SPAN |
US Solicitor General Prelogar tried
to argue that viability is the only hard and fast line we can use. Anything
else leads to a slippery slope. She says, “Immediately states with six-week
bans, eight-week bans and so on would seek to enforce those with no continued
guidance on what the liberty interest is going forward.”
So a woman, she claims, has a liberty
right not to carry a baby to term from 15 weeks on. But from viability on she
doesn’t have that right? She gets asked this question. And, let’s be clear; we saw
in the news a baby born at 17 weeks that is progressing and living life—having celebrated
his first birthday. Viability used to be considered the third trimester, 26 weeks, but even 39
years ago, when I lost a premature baby born at just under 24 weeks, doctors had
said there was a 1 in 8 chance of survival. And I have known babies born that
early not long after that year who survived with no lasting problems.
So her argument about viability rings
false for two reasons: one is that we don’t know when viability is, but we know
it’s getting earlier and earlier as neonatal medical care advances; and another
is that a woman doesn’t have a "right" at 15 weeks of pregnancy that she loses a
few weeks later at some nebulous “viability” moment.
This viability question came up
earlier, during Rikelman’s segment. Justice Alito asks:
On the other side, the fetus has an
interest in having a life. And that doesn't change, does it, from the point
before viability to the point after viability?
Rikelman ignores the interest of the fetus entirely and answers that by saying it is
the line the Court decided on when balancing the state’s interest in the fetus
and the woman’s interest in her right to liberty. Alito asks her to explain why
viability is the chosen line:
Alito: What is the philosophical
argument, the secular philosophical argument for saying that is the appropriate
line? There are those who say the rights to personhood should be considered to
have taken hold at a point when the fetus acquires certain independent
characteristics. But viability is dependent on medical technology and medical
practice. It has changed. It may continue to change.
Rikelman: No, your honor, it is
principled, because in ordering the interests at stake the Court had to set a
line between conception and birth, and it logically looked at the fetus's
ability to survive separately as a lean line because it's subjectively
verifiable and doesn't require the Court to resolve the philosophical issues at
stake.
She’s wrong. It does change. It has
changed, which was clear in Alito’s question.
Historical Argument
Earlier, during Rikelman’s testimony,
she tries to make the case that there’s a long and glorious tradition of
abortion historically:
Rikelman: There was a tradition under the common law for centuries
of women being able to end their pregnancies. In addition, when it comes to
decisions related to family, marriage, and childbearing the Court has done the
analysis at a higher level of generality, and that makes sense because
otherwise the Constitution would reinforce the historical discrimination
against women.
She and Alito have an exchange over
this. He wants to explore the history. She wants to gloss over that and
concentrate on the Court’s overcoming historical discrimination against women.
Alito: You just mentioned the Common Law. Let me ask you a
couple of questions about history. Did any state constitutional provision
recognize that abortion was a right, liberty, or immunity in 1868 when the
shareholder 14th Amendment was adopted?
Rikelman: No, your honor, but it had been allowed under the Common
Law for many years.
Alito: Does any judicial decision at that time or shortly or
immediately after 1868 recognize that abortion was a right, liberty, or
immunity?
Rikelman: There were state high court decisions shortly
before then, your honor, talking about the ability of women to end a pregnancy
before quickening.
Alito: What's your best case?
Rikelman: For the right to end a pregnancy, your honor?
Alito: Mm-hmm.
Rikelman: Allowing a state to take control of a woman's body
and force her to undergo the physical demands, risks, and life-altering
consequences of pregnancy is a fundamental deprivation of her liberty. And once
the court recognizes that that liberty interest deserves heightened protection,
it does need to draw a workable line. And viability is a line that logically
balances the interests at stake.
Note that she doesn’t answer the question; she turns back to
one of her talking points. Evasion doesn’t work on Alito.
Alito: The brief for the American Historical Association says
that abortion was not legal before quickening in 26 out of 37 states at the
time when the 14th Amendment was adopted. Is that correct?
Rikelman: That is correct, because some of the states had
started to discard the Common Law at that point because of a discriminatory
view that a woman's proper role was as a wife and mother, a view that the Constitution
now rejects. That's why it's now appropriate to do it at a higher level of
generality. Again, at the founding women were able to end their pregnancy under
the Common Law and in fact this Court in Glucksberg described Casey
as based on tradition and at note 19 called out and relied on Roe's
conclusion that tell of the founding and well into the 1800s, women had the ability
to end a pregnancy.
This version of history strikes me as revisionist. I’ve lived long
enough to know that the original Hippocratic Oath includes the phrase, “I will
give no sort of medicine to any pregnant woman, with a view to destroy the
child.” That’s been an understanding for doctors since ancient Greek times. The phrase
wasn’t removed until around 1964. The 19th-Century novel Adam
Bede, by female British author George Eliot, has a character who finds
herself unwed and pregnant. In her effort to find the soldier who impregnated
her and ask for help, she gives birth in the snow and barely gets herself to a
house, where someone helps her recover; she had intended to return for the
baby, but it is found dead before she recovers enough to do so. While there is
some sympathy for her, she is nevertheless executed for causing the death of
her baby. This was related to English Common Law, and the baby, while
premature, was born alive, but the unwed pregnancy wasn’t even considered
something to be lawfully terminated. But in John Steinbeck’s 1952 novel East
of Eden, a cruel and wicked character causes herself an abortion; there is nothing
but repugnance for the character in the book, and this is just another of the
horrors she commits.
In other words, I don’t believe the founders or those living in most
of the first two centuries since then—up until the 1960s—saw abortion as
anything but savage. They were not seeking for ways to make it legal. They
certainly weren’t looking to return to any previous “right” to abortion, as Rikelman
implies.
So I did a fairly simple search. Abortion was illegal in all 13 colonies at the time of the founding. According
to J. Dellapenna in the article “The History of Abortion: Technology, Morality,
and Law,” written in 1979 in the University of Pittsburgh Law Review,
the colonies all referred to English Common Law, which they kept for an
additional century. English Common Law forbade abortion, as you might guess. It
had a two-level punishment: abortion prior to quickening was a misdemeanor, and
after quickening was a felony. However, in the early 1800s, human biological science
had progressed to understand that human life began not at quickening, but at
fertilization. Based on this new knowledge, in 1869 the British Parliament passed
the “Offenses Against the Persons Act,” which made any abortion after
fertilization a felony. Based on that early 1800s science, each of the United
States adjusted its law, removing the misdemeanor part, so that by 1860 the
vast majority had new laws making abortion at any point after fertilization a
felony.
So when Rikelman was saying the states were letting go of Common
Law, that may be true, but only to clarify and firm the laws they saw fit to
keep. When asked, she couldn’t remember the historical references used in Roe.
What Will Happen?
I don’t know what the Court will do. And I don’t know what sort of
frenzy the pro-abortionists will carry out between now and then—with the help
of a lying media. Overturning Roe v. Wade and Casey will not
outlaw abortion; it will return the decision to the individual states. Several
states, including Texas where I live, have a trigger law, meaning that at a
point when Roe is ever overturned, that state outlaws abortion. States may
differ in how they handle life/health of the mother or rape. But all of these
states are next to or near enough to states that will likely go the other
extreme—allowing abortion up to birth—so any woman who wants an abortion could
travel to get one. Glenn Beck and Stu Burguiere discussed this and noted that
the longest distance would be a 12-hour drive from southern Florida to North
Carolina—or a two-hour plane trip costing less than the abortion itself. And
pro-abortion “charities” will fund such trips.
So what seems clear is that any woman determined to get an
abortion will still get one. The only way to get rid of abortion is to change
people’s hearts. That’s what is most needed. And it might help to have much power of speech, the honest and true kind, on our side as well.
