Wednesday, January 23, 2013

What If Eleanor Roosevelt Could Fly? An Abortion Counter-History

By Mike Dorf

My Verdict column for this week is part 2 of my 2-parter on the 40th anniversary of Roe v. Wade.  (Part 1 and the accompanying blog post appeared on Thursday of last week.)  In Part 2, I consider the claim that Roe went too far, too fast--that a less sweeping decision merely invalidating the Texas law at issue in Roe would have invited a dialogue between the Court and the People, which in turn would have resulted in less contentiousness and roughly the same degree of liberalization of abortion law that Roe decreed.  I argue that these claims are highly speculative at best and probably false.

Most of my argument against the too-far-too-fast hypothesis rests on two factual observations: (1) Its proponents overstate the degree to which state legislatures were in the process of liberalizing abortion law when Roe constitutionalized the subject; and (2) in the two decades since Planned Parenthood v. Casey, we have seen that legislatures given greater regulatory freedom regarding abortion do not typically respond with "dialogue."  Rather, pro-life legislators (quite understandably and predictably) enact laws that make abortion as difficult as possible, going right up to the line of what the courts will uphold or even well over it, on the theory that simply making people go to court to secure abortions is costly.

But in addition to these concrete grounds for objecting to the too-far-too-fast hypothesis, I also raise a general epistemological point: Insofar as the too-far-too-fast hypothesis rests on a claim about what would have happened if we change one piece of history, it is inherently speculative. Anybody who has ever read or seen a time travel book or movie knows that even small changes can set off large and unpredictable chains of causation. I vividly remember as an undergraduate when a fellow student asked a question of one of my favorite teachers, the late political theorist Judith Shklar. The question began "what if . . . ." I don't now recall what followed the "what if" but it was something like "what if the first communist revolution had occurred in a highly industrialized country like Germany or England rather than Russia?"  Shklar's answer has stuck with me pretty close to verbatim: "What is this 'what if'? There are no 'what ifs' in history. The past is determined."

The title of this post refers to a very old (like 1978 old) Saturday Night Live sketch that posed various preoposterous what-if questions, including "what if Eleanor Roosevelt could fly?". Shklar's point was that all such questions--including seemingly serious ones--are preposterous, at least from the perspective of history.

But I never understood Shklar to be making the point that "what if" questions lack all value. I understood her to be making a point about the study of the past. Shklar herself was a political scientist, not a historian, and presumably a good deal of what political science does is to make generalizations that necessarily entail some set of views about "what if" questions. Suppose you agree with Immanuel Kant, Thomas Paine and their modern supporters in thinking that democracies never (or at least rarely) go to war against one another. If so, then you will think you can say something substantive in response to a question like "would England and Argentina have fought a war over the Falklands if Argentina had not been ruled by a military junta at the time?"

Of course, anything you say will be probablistic and will lose force over time, because the path-dependence of the "butterfly effect" is real.  But the whole point of a science of politics is that, at least within broad bounds, history is not simply one damn thing after another.  There are patterns and causal mechanisms, albeit complicated ones.  In retrospect, I realize now that Shklar was a favorite teacher of mine despite her dismissal of "what if" questions, not because of it.

To come back to the too-far-too-fast hypothesis, I want to emphasize that when I say in the column that it is highly speculative, I do not just mean that in the sense that all claims about what might happen in a counterfactual world are necessarily speculative.  I also mean that we have specific reasons to doubt the particular counterfactual narrative that the too-far-too-fast hypothesis assumes.


mike said...

I agree that the best argument against the "too far, too fast" theory is what we've seen from states restricting abortion access.

My follow-up would be this: I think public opinion on abortion would be decidedly in favor of legalization and would have been for decades now because the question before voters would be, "Should abortion be legal?" and not "Is abortion moral?" The reason the former would be the center of debate would be because anti-abortion politicians would have to campaign on real, practical laws banning abortion. I think those laws would be unworkable and unpopular as compared to liberal abortion regimes in other states. The result would be a growing consensus around the inevitable reality that abortion should be illegal.

So in supporting the "too far, too fast" theory, I would point to the public more than I would point to state legislators.

Sam Rickless said...

I agree with you that counterfactuals regarding historical events should not be summarily dismissed. But I wonder whether your argument against the too-far-too-fast hypothesis is as strong as you appear to suggest. You claim that if Roe had not foreclosed dialogue on early abortion restrictions and bans, then pro-life legislators would still have been just as insistent on going right up to the line and possibly beyond what the courts would have upheld. I think this is true. But the counter from Ginsburg et al. might be that if Roe had not foreclosed the relevant sort of dialogue, then the issue of early term abortion restrictions would have been less front-and-center in electoral politics, would have been less of a recruitment tool for the Bachmanns of the world (that's how Bachmann got into politics, and she's not the only one), would not have galvanized more than one generation of Republican activists, and so would have resulted in the election of fewer rabidly anti-abortion politicians. The result is that the legislators interested in pushing the judicial limits would have been marginalized and less powerful, leaving room for the gradual liberalization of abortion policy.

My view is that Ginsburg is likely right about this, but I disagree with her that the argument should have any bearing on whether Roe was rightly decided. I find pragmatic considerations, especially regarding constitutional questions involving rights, out of place. E.g., it strikes me as completely wrongheaded to look back at a decision like Brown and say that SCOTUS should have been thinking about going more slowly because of a possible political backlash.

The main problem with Roe was that Blackmun used original expectations originalism to dismiss the notion that fetuses are constitutional persons. He should have faced the question of personhood squarely, because it is central to the decision. Of course, that would have required doing some philosophy....

Joe said...

"used original expectations originalism"

First, except perhaps Stewart (by some accounts), the personhood of the embryo or fetus was not a major concern to the justices partially because it was basically assumed they were not constitutional persons.

Second, the opinion doesn't just use originalism arguments. Section IX addresses the constitutional person issue.

First, precedent is cited. Second, a textual argument is made. Next, history as a whole (not just original expectations). And, the statute itself is used to defeat the argument, since the state doesn't act like the embryo is a constitutional person.

Finally, it is a sensitive issue. Dwelling on the issue, making it a central concern & perhaps focusing on how they are not constitutional persons could be controversial.

But, the ruling did address it. They aren't constitutional persons and various reasons suggest as much. From this no justice has yet dissented. It is curious to say this is the "main problem."

Sam Rickless said...

@Joe: We may disagree about this, but I take the main argument of section IX to be the originalist (textual, if you prefer) argument, to the effect that 'person', as used in the Constitution, does not apply pre-natally. But even if you combine this argument with others, the result is not pretty.

Historical arguments are worthless. There was a long history of anti-miscegenation laws before Loving. Who cares?

Precedential arguments are also worthless when it comes to fundamental rights. If a fetus is the kind of being that has rights, then it shouldn't matter what some past instantiation of SCOTUS said.

Yes, it is relevant what the statute says. And Blackmun made some good points there. But saying that this particular anti-abortion statute is unconstitutional is not the same as saying that ALL anti-abortion statutes are unconstitutional. Texas had an inconsistent position on the statute and its justification. But it is easy to imagine a State defending the very same statute without inconsistency.

Finally, yes OF COURSE it is a sensitive issue. But it is the job of the Court not to shy away from sensitive issues. Equal rights for gays is a sensitive issue. Should the court stay away from the issue? Gun control legislation is a sensitive issue. Should the court stay away from that one too? SCOTUS needed to send a clear message about the moral status of fetuses, but Blackmun punted, citing controversy from religious and philosophical sources. What he and the rest of the Roe majority did was to attempt to close off discussion of the fetus's moral and constitutional status with a bunch of spurious arguments, the most important of which was shockingly originalist. In this way, what he did was not much different from what Justice Taney did in Dred Scott.

Eventually SCOTUS is going to have to face the question of the fetus's moral status (think of the "fetal pain" statutes that are being enacted now), and it would have been better if Blackmun and his brethren had acknowledged this instead of pushing the issue under the rug.

The solution involves both philosophy and, potentially, embryology. We need to know what are the necessary and sufficient conditions for personhood, for being the bearer of rights, such as the right to life. This is a philosophical question. Then, assuming (as is likely) that the right answer to the philosophical question is that personhood requires the possession of certain sorts of capacities (such as consciousness and self-consciousness), the question then becomes whether the brain of a fetus is sufficiently developed (at this or that stage of the pregnancy) to sustain these capacities.

The idea that SCOTUS should punt on question of the fetus's moral personhood (via history, precedent, expectations-originalist baloney, or some combination of these) is no better than the idea that SCOTUS should punt on the question whether persons who are the descendants of slaves are moral persons.

I should say that I believe that a careful philosophical and scientific investigation of the question of moral personhood will reproduce something very like the very same results that Blackmun himself endorsed, using the manufactured and morally/constitutionally irrelevant criterion of "viability". Early term and mid term fetuses are pretty clearly not moral persons. Arguably, late term fetuses are persons (or much closer to being persons). This by itself explains why something like the trimester framework is appropriate.

Joe said...

Originalist and textualist is not the same thing. Use of the text and use of original understanding are two separate types of interpretation.

Example. Freedom of speech is absolute. The text says so! Text. Freedom of speech is absolute. It's what the Framers understood. Originalist.

Precedent is a major way to interpret the Constituton. Precedents stick unless there is strong reason to override them. Roe itself stuck in the face of opposition significantly because of precedent. That is a core point of Casey. Precedent has protected fundamental rights repeatedly, including Warren Court precedents sticking around since moderate conservatives were wary of overruling them. History also is a major way to interpret the Constitution. So, sorta have to care about it. It also isn't just used simplistically. So, anti-miscegnation laws eventually were overturned. By totally ignoring history? No -- the history of racism was shown to be behind the laws. Here, history served as a useful understanding of how abortion worked over the years, including how the purposes and justifications of regulations changed. Not worthless.

Roe v. Wade was about Texas' statute, so the ruling would logically judge what is says and how it was applied. But, Roe didn't actually just cite Texas on that point. See, e.g., its reference to United States v. Vuitch -- its broad use of "health" there would be suspect if the embryo/fetus is a person, since if it is a person, constitutional avoidance would warrant a more careful application. The opinion as a whole spent a lot of time on how abortion law was carried out & the history section shows each state used the law in a similar way. They did not act like they considered the unborn as constitutional persons. It was simply an outlier argument, if one possible in theory.

I didn't say they should avoid sensitive issues. But, they didn't avoid it. Making it more of an issue than necessary, however, would be ill advised partially for that reason.

Blackmun also didn't avoid philosophy and science. The opinion examined the various aspects of the question and the complicated and conflicting understandings in place. There was no one right answer to many of the questions posed. This is why -- since "constitutional person" by text and history and precedent didn't apply pre-natally -- it is mostly left to the woman, for the reasons offerred in the opinion -- the right to privacy and the specific burdens she suffers. Some expansively philosophical conclusions best left to philosphers was not advisable no more than deem philosophical analysises are not in cases like Lawrence or Brown. The "moral" personhood is the very issue Roe leaves to individuals. The opinon covers a lot of ground, so I'm sure we can point to a few things where later cases could be used to clarify. For instance, Casey underlines that this is a matter of conscience. The "moral" personhood of an embryo or fetus is a moral and religious question greatly debated. As Roe notes, it is not a question the USSC can settle very much.

The opinion explains why viability was chosen. It was not "manufactured" out of thin air. When interpreting the Constitution, especially when the text isn't clear, the USSC repeatedly looks at history and practice, and he explains how viability had developed -- he cited philosophers, medical analysts, laws and the Constitution for this. The ruling was just the beginning though. A full fledged analysis of such deep issues, especially when most abortions occur long before the line in question, often comes later. But, when constitutional personhood was never actually the law and no justice then or now made that the reason for rejecting abortion rights, the apparent necessity of this question in Roe is really unclear.

But, my main concern remains is that you don't even respect what the opinion actually did.

Sam Rickless said...

@Joe: Textualism is a branch of originalism. It is often called "original public meaning originalism", as opposed to "expectations originalism". The point I was trying to make, and that you are missing, is that it should make absolutely no difference whatever whether it is a presupposition of every use of "person" in the Constitution that its application is post-natal. Taney made the same sort of argument about the descendants of slaves in Dred Scott, and it is completely bogus.

I didn't say that precedent never matters. I said that it doesn't matter *when it comes to fundamental rights*. The point of precedent is to secure the stability of law. This is a rule of law value. But basic rights trump rule of law values. Every time. So, if the descendants of slaves are persons, then SCOTUS should overrule past SCOTUS decisions to the contrary. Similarly for fetuses. Though, of course, I think there are good reasons for thinking that fetuses are NOT persons.

The moral status of the fetus is not a religious question. This is a common mistake. You are making it, and so did Blackmun. The moral status of the fetus, like the moral status of a neonate, is a moral question.

Blackmun writes in Section IX: "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." There are several problems with this. First, the relevant question is not when "life" begins. The relevant question is when and if the fetus acquires the sort of moral status that would make it a legitimate object of state protection. The concept of life is biological. The concept of person is moral. Second, theology is irrelevant. Only philosophy and medicine are relevant, though in different ways, not clearly articulated by Blackmun. Philosophy tells us what the criteria of personhood are. Medicine tells us whether this or that living being satisfies the criteria. It's true that there was controversy about the philosophical (and some of the medical) questions at the time Blackmun was writing. But if you really want to solve the problem, then read more philosophy and embryology. Don't punt.

Viability is a bogus, made-up criterion unconnected to the moral facts. To see this, just imagine that we acquire the ability 100 years from now to grow human embryos in test tubes starting a few days after conception. So the embryo is now viable a few days after conception. Does this mean that the state should be able to ban abortion one week after conception? Surely not. Or imagine that, for complicated reasons, because of some genetic disorder, we lose the ability to keep fetuses alive when they are removed from the womb prematurely. Are we to suppose that it follows that the state should not be legally permitted to place any restrictions on late term abortions? Viability is morally irrelevant. Perhaps Blackmun didn't realize this, but he should have.

My hypothesis is that Blackmun realized that late term abortion is morally problematic and that early term abortion is not. He had removed any argument for this conclusion based on the fetus's moral status. So he chose viability because it looked like an objective bright line that was (surprise, surprise) roughly six months into pregnancy.

My problem is not with the opinion's *conclusion*. My problem is with the *reasoning* for the conclusion.

Cicy said...

I should say that I believe that a careful philosophical and scientific investigation of the question of moral personhood will reproduce something very like the very same results that Blackmun himself endorsed, using the manufactured and morally/constitutionally irrelevant criterion of "viability". Early term and mid term fetuses are pretty clearly not moral persons. Arguably, late term fetuses are persons (or much closer to being persons). This by itself explains why something like the trimester framework is appropriate.

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