Supreme Court Woes

The AP is reporting that Bush is going to announce his nomination for the Supreme Court tonight. I don't watch TV, so I won't be able to see the press conference, but I am sure I will hear the name on the radio. I am a bit surprised that Bush is ready to make his appointment. I began to think he would wait until the last minute, just before the 109th Congress breaks, to pressure a quick confirmation process. There are several names circulating in the press and blogworld, but it looks like a Conservative female judge named Edith Clement from the court of appeals in New Orleans is a favorite (especially in the Washington Post article).

I am eager to see who we are being dealt here. I spent part of my evening last night debating the abortion issue with some really smart people. One of my guests was raising some compelling points about why the "pro-choice" and "pro-life" debate is so damaging to liberal/democratic politics. My friend pointed out that many of the women who got abortions right after Roe v. Wade passed went on to regret their decision 10 years later when (a) they couldn't easily get pregnant or (b) saw in the face of their children what they "aborted." Certainly, when many women choose to have an abortion, the decision-making process is either emotionally charged or desperate. Moreover, many women live to regret having an abortion--they realize, for example, that they could've supported the child afterall. This regret can lead women, who formerly supported abortion rights, to defect to the pro-life side. In part, this defection is aided by the sympathy they may be more likley to get from the "pro-lifers." This is a problem.

However, I maintained throughout my conversation that when it comes to abortion, we need to separate the moral and the legal arguments. As I have said in other blogs, reasonable, smart and subtle thinkers have very different and opposing moral arguments about abortion. For those who believe that a fetus, or fertilized egg, is a human life, then abortion certainly seems like murder. Of course, those same folks might be willing to see some abortions as "self-defense" (i.e. if the health of the mother is at stake) and therefore allow them in some cases. I think that the ethics of abortion will be with us for a long time and the healthy debates that it generates are important.

Democracy and individual liberty support a marketplace of ideas. And, as JS Mill pointed out, on matters of morality, we should never assume infallibility. We want to have long, healthy debates on issue of morality, and ensure that everyone--no matter how wacky their position is--gets to participate in the debate. Only through a free and unfettered discussion can each of us be exposed to enough information, viewpoints, and arguments to make an informed moral decision.

I think it is important for pro-choice women, who have never had an abortion, to have heartfelt and supportive talks with women who had abortions and regretted it. Seeking out such dialogues seems to me a good idea for anyone embarking on a tough moral decision. I think seeking out advice, listening to peoples stories, and consulting spiritual guides are always a good idea for any tough moral decision: Should I marry this person? Should I become a community health doctor or seek out a more lucrative job to support my family? Should I go to college far away from the support network of my family? Do I support war, this war? The list is endless. And, as "Yehudster" pointed out (in that conversation chez Melancholic Feminista last night) any tough moral decision I make (hell even decisions that are merely practical) will be full of regret, "should've, could've, would've." This is part of what makes us mortal, fallible creatures. And, part of living is learning how to live with regrets.

All of this open moral deliberating should be allowed. If we begin to use the law, however, as a means to make this "moral decision" for people, then we are shutting down an important and healthy debate that needs to happen. Protecting Roe v. Wade is important because we need to have a place that women can go to get a safe and legal abortion if they need to.

Yes, yes, I imagine that those who oppose abortion will remind me that they don't need an abortion. But, whenever people argue that we shouldn't allow legal abortions, they fail to see how this will actually play out. If you take away from women the right to have a safe and legal abortion, then you will be living in a country that does not allow women to (1) make careful and thoughtful decisions about their health, (2) that doesn't give space for healthy debates about what abortion means and whether it is moral, and, (3) that uses the law to legislate the moral views of one particular religious groups views.

Let's first talk about (1). Last blog, I gave you a link to a story written by Martha Mendoza who found out that her 19 week old baby had died in her womb. She had two choices: (a) either induce a birth, which is a mentally and physically exhausting act only to give birth to a dead baby, or (b) get a late term abortion. She couldn't easily access the latter since the federal ban on third trimester abortions! But, consider a less clear cut case, what if a married woman, who already has four children and is suffering from major depression finds out that she is pregnant. She is already having difficulty meeting the needs of her 4 living children, and her own life is in jeopardy since she has recently admitted her doctor that she is suicidal.

Or, better yet, let's consider the general issue of creating an environment where women are empowered and protected by law to make good health decisions in general. Protecting Roe v.Wade helps strengthen an open and respectful dialogue between a female patient and her health provider. Do you want the law to make a decision about when a woman can terminate a pregnancy or do you want a health care provider making that decision? You want to encourage an environment where women learn to feel comfortable asking questions about their body, learn about healthy sexual choices, and what the responsibilities and joys are of pregnancy, giving birth, raising children etc. You cannot encourage this environment where the federal government or some other governmental body says: abortion is immoral you cannot have one. When the state claims that abortion is immoral, it is saying more than "do not terminate pregnancies." It is claiming, sex is immoral unless you want to have children! (Let's face it, many people have sex who do not want to procreate). That sort of environment, where the law is taking a strong moral stance against how people should behave in the bedroom, is one more likely to foster MORE rather than LESS abortions. You are not encouraging young people to feel comfortable about asking questions about the changes in their bodies, their yearnings, and what is appropriate or healty for them. How many of us will ask advice of a tight-fisted, judgmental person telling us from the get go how we should behave?

Now to (2): here my reasoning is similar to above. When the law takes a clear stand on a moral issue, it is saying: no more debate! Legislating morality in this way, especially when there are so many gray areas, nuances, and negative consequences, is not a good way to encourage people to make moral choices. Again, moral actions should come from a place of integrity--we should reflect on what we think is the right choice, action, set of beliefs and then live those choices. Be told what is right, and not asking people to really internalize that is paternalism. You are not treating people as autonomous, respecting their intrinsic ability to make moral choices given the tools to think critically, or given support and compassion. You need to listen to people, give them good reasons to reflect on their beliefs and then let them go. If they make immoral choices, they will either live with the spiritual or practical consequences or, in some situations, they will be punished.

So, this last sentence needs some more thought. A "pro-life" person might say, yes, people who have abortions are immoral and the law should punish them. These folks are "murderers." If a "pro-life" person takes this position, then the logical conclusion is that they believe women who have abortions should be put in jail. That we should criminalize abortion. This position goes much further than overturning Roe v. Wade. And, given my comments above--that it is not clear cut that abortion is immoral--the law should NOT criminalize abortion.

Lastly, (3) all of my above points lead to my firm conviction that the law should not legislate the morality of the "religious right" [I am referring, largely, to the ultra conservative evangelical movement, which has united with Catholics on the issue of gay marriage and abortion]. To do so comes dangerously close to erecting a state religion, which the 1st Amendment protects against. But more importantly, moral questions are complicated and the healthy exchange among a variety of religious/moral positions helps a society move forward. We do not want to become a theocracy--that violates the spirit of a democracy that supports liberty, and affirms the dignity and worth of every citizen!

Now, dammit. I don't want to write about abortion anymore. My commitment to women, to empowering women, to contributing toward the creation of a world that values, respects and embraces women is total. And, there are a great many issues that I need to be paying attention to besides abortion. For example, MY BOOK, which has been languishing for the past few days while I am sitting on pins and needles worrying about the Supreme Court!

As a wise woman said to me: "we have to struggle now just to maintain the status quo for women!"