Moral Outrage and Constitutional Democracy

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Lots of Americans get morally outraged about lots of different things.  There’s 30,000 Christian sects alone, here, after all.  But there’s undoubtedly for a whole lot of us a major and unique “yuck factor” when it comes to “intact Dilation and Evacuation (or Extraction),” aka “Partial-Birth Abortion.”  Nobody dies when men sleep with men or women sleep with women (in her dissent, Justice Ginsburg alluded to the Texas “sodomy” case whose Supreme Court resolution basically ended criminalization of private, non-commercial same-sex intercourse between consenting adults in the United States, absent lethal, incurable sexually-transmitted disease) – except said men and women when those who hate, fear, oppose, make sport of, or seek to “teach them a lesson,” murder them.  Even many people who consider themselves normally “pro-choice” are repulsed by the idea of a kid who almost made it out into the world, only to have his brains sucked out and his skull crushed by his doctor still in his mother’s womb.  (This makes me, and I think Justice Ginsburg, question just what people know about the relatively more common – but still rather rare – abortion technique called “Dilation and Evacuation by Dismemberment,” alluded to by me earlier… the “chicken” bit.  As Neil Diamond put it so well oh so many years ago, “I’m not a man who likes to swear,” but: JESUS CHRIST!  How can a doctor who does that sleep at night?!  Anyway, by the time they’re doing that one, it ain’t “a mass of cells” anymore, but unmistakably, visually human.)  There may even be thought something un-American (Look out!) about seeming to give a kid a chance and then take it away.

“Seeming,” because from what I read, usually we’re not talking about a viable baby in these procedures, a child normally scientifically, medically considered to have fifty percent or greater chance of surviving outside the womb, to begin with.  Usually second trimester, fourth-to-sixth months of pregnancy.  But people naturally identify with the tyke in the versions of this well-known drawing, more than with him a few months earlier when he had a tail, and gender-ambiguous genitalia, and an oblong head, etc etc etc.  In the picture he looks almost-born, denied the chance of life by a slim moment.  Intact D&E seems unnecessarily cruel and crude, and late.

In fact, Justice Ginsburg’s dissent documents pretty succinctly (scroll down to page 58 of this PDF – not as numbered by the document itself, but in the cumulative page numbers in Adobe’s page-number box at the bottom-center of the screen) the cases when intact D&E is alleged to be medically indicated, when we’re talking about abortion at all, when other alleged options are considered more dangerous to the life or health of the mother.  In fact, one gets the sense that intact D&E is on the whole better for the mother, less risky, than dismemberment D&E… even less ‘barbaric.’  Go figure!

One area where her dissent is telling, though, is in her ideological devotion to “reproductive choice.”  Factually I call it ideological because it seems to form the basis of her argument, not the kind of cool, “rational” legal arguing we’d prefer to hear from our judges, “liberal” or “conservative.”  (Though she never “drops the gloves” like Scalia so often does; I have long thought he should be disbarred: Can a disbarred judge continue on the federal bench??)  For Ginsburg, “reproductive choice” doesn’t end until… well, when exactly?  Absent allowed State restrictions in the third trimester, how late could a baby, even a viable one, be aborted?  Day before due-date???  Does the beginning of natural labor perhaps protect him? sometimes they can even stop labor.  And of course under the influence of those drawings, some people might fear that even during natural birth – ‘up to his belly button’ – the baby isn’t safe from a decision to abort him.  And they’re morally outraged: not just Victorians and Puritans and Fundamentalists and Talibans and male chauvinists and Catholics and Muslims and Amish and moralists and ethical hairsplitters and control-freaks and hypocrites and such, but others also.

Another way of looking at it is that “reproductive choice” took place when the choice to have (voluntary) sex without contraception or less-radical surgery than abortion – tubal ligation (female and/or male) – took place… or even to risk it then, since nothing is foolproof except chaste abstinence: the choice to reproduce.  Sex isn’t just “a new way to dial your touchtone phone”:* It’s reproduction, let’s not forget!  Maybe it doesn’t have to be all the time; in fact, it biologically can’t be.  And it certainly has other benefits!!  But when sperm joins ovum and cellular subdivision begins, human reproduction has already taken place.  When a person/couple/family become aware of the pregnancy, the “choice” – if they consider that they have one – is whether to discontinue it, whether to kill “the baby,” to end her/his life, development, growth from a smaller human being into a bigger human being, etc.  (And the late Bob Casey Sr. surely rues the day his name became associated with the phrase “the fetus that may become a child,” from the Supreme Court ruling in the Casey abortion case!  Since the Emancipation of Black Slaves in America, what good law has ever given one person life-or-death power over another innocent person – or potential person if you must – without the explicit consent of the latter?!  What valid legal system says if a woman “wants” the child in her womb at any given point in time, it’ll be considered a “person,” but if another doesn’t want hers at another point in time, he’ll not be considered a “person”?!!  This is the upshot of Ginsburg’s ‘female sovereignty/self-determination/self-development’ ideology: each woman as her own one-person Supreme Court.  IOW, legal chaos, anarchy… by definition, injustice.)

(*–In the ’70s an AM radio disc jockey opened the mike after the song “Do You Wanna Make Love, or Do You Just Wanna Fool Around?” and asked, “Do you wanna make love… or is that just a new way to dial your touchtone phone?!”)

Doubtless there are numerous moral tragedies among the million or more surgical abortions that take place in America every year – situations where people feel faced with no good decision available, for physical, medical reasons, or reasons of familial destitution where there is perceived a total absence of social support systems, or possibly extreme mental illness, or feelings of utter incapacity in the face of anticipated ‘disabilities’ of the expected child, or possibly (actual) rape or incest.**  Ginsburg associates at least some intact D&Es with second-trimester diagnoses of profound deformity or deficiency in the baby.  Be that as it may, is it necessary to push the envelope as far forward in the pregnancy as will be tolerated, and then some?  Human beings have been bearing, and raising, and sometimes seeing die very young, very ‘deformed’ or ‘deficient’ or ‘disabled’ babies, almost as long as there have been human beings.

(**–Although most people don’t realize that the genetic abnormalities commonly associated with incest/inbreeding require several generations of it to manifest; just one won’t do it.)

The thing is, America claims to be a Constitutional Democracy, one whose constitution is even codified in a single document (more or less), not an absolute democracy.  Majoritarianism is qualified by limits on governments and rights of individuals against governments.  But because we also retain a Common Law system of case law (yes, “judge-made law,” it’s older than parliamentary/congressional/legislature-made law!), there’s some give-and-take.  Ginsburg chides the Court majority for slippery moralization, but the fact is there’s plenty of slipperiness to go around in this Carhart case.  Another problem is that there’s a long, intermittent tradition of the Supreme Court being treated as a super-legislature, playing politics and Parties fighting for control of it, all to the detriment of the Rule of Law (ie, Common Law and its -based legislature, executive, and judiciary).  So “moral outrage” must take a procedural second-place to the System itself, unless we are to replace the System itself with another.

And all America needs is more systemic experimentation.  Arguably, it’s such expermentation that’s gotten us here in the first place.