Month: December 2021

The three dissenters will be writing both for the general public and for posterity. My guess is that there will be three separate opinions. The key questions for them are:

1. HOW FAR SHOULD WE TAKE THE POLITICAL HACK ARGUMENT? I will predict that Sotomayor will pull no punches. The others will be more circumspect, not wishing to burn their bridges with the “conservatives” or inflict damage on the Court.
2. DO WE RELY ON THE ROE ANALYSIS OR THE GINSBURG EQUAL PROTECTION ARGUMENT? The former is the current law; the latter has more popular appeal and may be more compelling. The problem with equal protection, however, is that it logically leads one to the conclusion that the state has no right to regulate abortion at any stage of gestation. That won’t fly with a public that mostly wants some sort of reasonable compromise on the issue.

I think we will see more equal protection than right of privacy in the dissents, although there will be some of both.

Think of the Dobbs case as a cascading series of legal questions, starting with the most general and provocative to the most limited:

1. Is a fetus a “person” entitled to protection under the Fourteenth Amendment?
2. Is there a right to privacy, as held in Roe and Griswold?
3. If so, does it include the right to an abortion, as held in Roe?
4. Is that right unqualified during the first trimester?
5. If Roe was improperly decided, should the Mississippi law still be overturned on the basis of societal reliance?

The majority will decide as follows, taking the questions in reverse order:

1. All six “conservative” (only Roberts is a real conservative; the rest are reactionaries) justices will find that reliance is not an adequate basis to continue to follow Roe. Expect lots of references to Plessy v. Ferguson, the fact that Roe was controversial from the beginning, and the joys of federalism in the opinion. The last of these will be an embarrassment to reactionaries when they try to prohibit abortion on a national level. In footnotes and at the conclusion of the opinion, the Court addresses the political hack argument, to the satisfaction of no one.
2. The six “conservatives” will all find that states can regulate abortion very strictly in the first trimester. On this point, expect arguments that both society and medicine have changed since Roe, thus justifying a different outcome. There will also be mention of the fact that most abortions occur before 15 weeks.
3. Roberts breaks from his right-wing colleagues on this point; he tries to hold the decision to its facts and keep a shadow of Casey in place. The majority relies on history and constitutional text to hold that there is no federal constitutional right to an abortion–period. Roe is completely extinguished.
4. Sensing the political dangers involved in overturning Griswold, the Court does not say that there is no right of privacy, although some of the concurring opinions suggest as much.
5. The majority opinion says nothing about the personhood argument. Thomas and Alito reference it approvingly in passing in their concurring opinions.

My guess is that Barrett writes the majority opinion. What do the dissents say? Tune in tomorrow.

A fertilized egg has no heart. Nor does it have a brain, or limbs, or any other organs. It can’t think, feel, communicate, propel itself, or feed itself. It in no way resembles a complete human being. And yet, Ross Douthat argues that, because it is a living thing in the process of becoming a fully functional human, it must be treated as a person. Is he right?

No. Douthat bases his argument on the condition of the extremely sick and old, who at some point are likely to lose, either temporarily or permanently, some of the functions that most of us associate with humanity. I just don’t accept that someone who has all of the organs necessary to be human, who have used them for many years, who still have use of some of them at all times, and who may recover the use of the rest of them after a short interlude, should be treated the same way as something which only potentially has any of the attributes of humanity. It’s not the same thing.

What Douthat really believes is that the soul is created at conception. Since that is a religious argument with little appeal for NYT readers, and which has obvious First Amendment implications, he avoids it. But it is what it is. There is no point in pretending otherwise.

The right loves to complain about the values supposedly promoted by Hollywood. The fact is, however, that making movies is about the green, not the red or the blue. Hollywood’s principal interest is in reaching mass audiences with spectacle; offending half your potential customers is hardly a smart business practice. Most of the money in Hollywood is consequently spent on expensive superhero movies which have no ideological content, and can even be enjoyed by Chinese audiences.

In light of that, does it make sense for the right to expend any energy trying to censor movies? Probably not. The internet, the MSM, and the universities are more promising targets. Just boycott the movies you don’t like. The executives and the money men will get the message.

Michelle Goldberg made the case for abortion rights in yesterday’s NYT. In a nutshell, she argues that the right believes fervently in the sovereignty of the individual human body in all cases except those in which regulatory burdens fall exclusively on women. Abortion rights are thus a matter of freedom and equality for women. This line of reasoning follows an argument made by Justice Ginsberg, not the majority in Roe.

Ross Douthat, in a lengthy column published the same day, acknowledges the equality argument, but makes two points in response. The first is that it should be possible for society to redistribute the legal and practical burdens of unwanted parenthood in a reasonable and fair way without resorting to abortion; the second is that the recent relevant past shows that women can make progress in economic and civic life without relying on abortion, so abortion rights are not a necessary element of equality. Is he correct?

There are two serious shortcomings in the first argument–one conceptual, and one practical. The conceptual problem is that, even if one created an ideal society in which unlimited additional resources were provided to women who are compelled to give birth against their will, there is no possible way to eliminate the pain and danger associated with carrying a child, or to redistribute that burden to society as a whole. Requiring fathers to pay child support and writing the criminal law to exempt mothers from liability for abortions just doesn’t do the trick. Second, the argument is made in bad faith, because Douthat, regardless of his personal sympathies, is perfectly aware that his party has absolutely no interest in raising taxes to improve the lot of mothers of unwanted children, or of the children themselves. To the GOP, as I’ve said many times before, the misery associated with most unwanted pregnancies is a necessary deterrent to inappropriate sexual activity. The misery is the point, not just unfortunate collateral damage.

As to the second argument, the correlation between the slow social advancement of women and declining abortion rates proves nothing, because there is no control on the experiment. We cannot know what the overall impact to women would have been if abortion had been more readily available.

Douthat also contends that fertilized eggs are unquestionably individual human beings in his column. I will address that argument in a separate post tomorrow.

The numbers don’t lie–the internet (particularly Facebook) is essentially a playground for the extreme right. Left to his own devices, Mark Zuckerberg would keep it that way, because it makes him money. However, pressures from his employees, and the body politic in general, have forced him to become a censor. The right is outraged, but doesn’t know what to do about it; the threats from Trump and others to repeal Section 230 would only help the left by destroying Facebook’s business model and making right-wing nut jobs more legally accountable for their speech.

What reactionaries want is censorship of the left, not just freedom for themselves. How can they get there? By combining with left-leaning critics of the social media companies, and with Facebook itself, to create a new body of law that transfers internet censorship from the private to the public domain. This is consistent with what is happening in other countries all over the world and is consequently easy to justify. The legislation needs to be broad enough to contemplate a fairly rigorous degree of public interference, with minimal standards on what is unacceptable speech. Then, all they have to do is win an election and pack the new regulatory body with their own kind. At that point, they will have won; woke and socialist thought will disappear from the internet, the Great American Firewall will rise, and Real Americans will have their ideas unquestioned.

Naturally, there will be litigation, but the Supreme Court is dominated by the right. The new regulations will be upheld, and we will have our own updated version of the Alien and Sedition Act.

Once again, the moral of this story for liberals is to be careful what you ask for, because you might get it.