The recent grilling of Donald Trump by Chris Matthews on whether or not a woman should be punished in any post-Roe scenario has turned our attention once again to a woman's right to choose. The death of Justice Antonin Scalia has given the presidential election a jolt of electricity. One of our two political parties is pledged to overturn Roe v. Wade. Replacing Scalia with a pro-life conservative Justice is the dream of Senate Republicans, who are likely to succeed in preventing President Obama from appointing a replacement for Scalia. What could be more rewarding to the Republican base, which is now in revolt against its own Establishment, than finally delivering on the long-promised death of Roe vs Wade?
There will be at least one more Supreme Court replacement likely for the next president. The advancing age of liberal Supreme Court Justice Ruth Bader Ginsburg (born in 1933) haunts the Supreme Court chamber. Replacing Ruth Bader Ginsburg with a conservative would give the Republicans their biggest victory on abortion rights in a decade, a 6-4 majority to spare willing to kill Roe. Chris Matthews hinted at the ramifications for overturning Roe, but I'd like to spell out more fully and completely what would happen in such a scenario, in ways that are outside the normal box of pro-life and pro-choice arguments.
When I studied and taught constitutional law, the rights of individuals was often the focus of student discussions. Other things have ramifications, too. Ramifications for society's character as a whole. Let's take a hard look at what it would mean, not just to pass a law banning abortion and have it upheld by a conservative courts, but what it would take to enforce such a law.
In the 1965 case of Griswold vs Connecticut, the Supreme Court ruled for the first time that no state could outlaw the use of birth control products within the confines of married couples making personal decisions about their family planning. In 1972, Eisenstadt vs Baird extended this protection to married couples. From these two cases come precedents used by the Court in Roe. While Justices wrote about a right to privacy, there is something underpinning that right, and it is this: what kind of intrusive government regime would be required if the government actually enforced laws against contraceptive devices? Or abortions?
It's one thing to close down a Planned Parenthood Clinic, which the State of Connecticut did in 1963, but there are other ways to get contraceptives. Person to person, for example. What would be required to enforce a law against contraception when condoms, and later the birth control pill, could be passed from person to person? Would neighbors suspect their neighbors if they remained childless? If someone mentioned in a conversation that they didn't want any more children, would that lead to a knock on the door at midnight, and a police search of the bedroom, or the medicine cabinet? Would doctors be required to report their married female patients who remained childless?
I suspect this was one reason that laws against contraception remained on the books but were not enforced. In Connecticut, which was, in 1963, one of the most Catholic states in the nation, the state was actually willing to try and enforce their anti-birth control statute (the 1879 Comstock Act). Planned Parenthood wanted a test case, and they got it. Planned Parenthood wanted to establish a principle in the law, a principle that said the government had no place in anybody's bedroom. The government had no place telling couples what they could and could not do with their bodies, that these are the most personal choices you will ever make, and that government has no place enforcing such laws.
Technology, specifically the rapid rise of the birth control pill, made anti-birth control measures obsolete over night. This was an unstoppable revolution. Even though the Catholic church still protested that all birth control methods were immoral, and that it was the job of government to enforce morality, the argument against contraception lost steam, even among American Catholics. The Catholic Church was losing its war against sex.
But abortions could be framed another way. They could be framed, especially if you could get people to imagine that abortions are all late-term abortions, as baby-killing. Murder. And although sexual morality couldn't be enforced by outlawing the pill, abortion could be outlawed as baby-killing. And indeed, killing babies is murder. Still. Always has been, always will be. But the removal of a pre-term fetus the size of half the palm of your hand is not the same thing, says the Court. As the fetus approaches full term, it gains rights under Roe, until in the last trimester it is permissible to outlaw the procedure entirely, with exceptions only to save the life and health of the mother. But most abortions remain legal under Roe.
Now, fast forward to 2016. A vast right-wing movement has been making the case since 1973 that all abortions are baby-killing. Murder. If you believe abortion is murder, says Chris Matthews, than what should be the legal punishment? That's where Donald Trump stepped in it, and said out loud what is logically true. If somebody breaks the law against murder, well, that has to require a punishment. Here, Chris Matthews moved in for the, excuse the expression, kill.
If abortion is just immoral according to some religions but not others, then the punishment is up to God. If Catholics are against abortion, they shouldn't have abortions. If some Protestants think abortion is murder, then they should not have abortions either. There are many actions considered immoral in many, many religions, but the force of the government is not tied up in enforcing those beliefs. Eat meat on Friday during Lent if you're Catholic? Eat shellfish if you're a Jew? Government turns a blind eye, unless you are living under Sharia law! In those few places where Sharia is interpreted with an iron fist, you can find yourself lashed with a whip for saying something against the Prophet Mohammed. But those governments don't have our history of protecting the rights, and the privacy rights, of individuals. They use Morality Police to patrol for women who are less than modestly dressed, for men and women holding hands in public.
So let's go to a post-Roe scenario. Imagine it is 2018. The Republicans got their two Supreme Court Justices, and now the Court is 6-4 to overturn Roe. Imagine you are a 17-year-old girl, and you have a reputation around your high school for being sexually active. You gain some weight. Go up a dress size. Then you go on a diet. Somebody who hates you suggests you were pregnant, and must have had an abortion. She turns you in to the police. How do the police determine whether or not the charge is true? Do they examine you vaginally?
What is reasonable "search and seizure" here for law enforcement? Let's contemplate that for a moment, shall we?
How will the police know if anyone breaks the anti-abortion law? It's not an obvious crime. It's not like stealing a car. And it's not like real murder, where there is a live victim, whose death would be felt immediately, whose relatives would file a missing person's report, whose employers would be alarmed when she or he didn't show up for work. How would suspicion of abortion be aroused, how would it be proved?
As abortion becomes an underground activity, women of childbearing age could be placed under scrutiny. Examined. Questioned. In China, they line women up for examination to enforce the one-child (or one-child plus if the first born is a girl!) policy. If your right wing relatives heard you openly support a woman's right to choose, might they not scrutinize your behavior, and your waist-size, looking for clues to turn you in?
When was your last period? How could you prove it?
Perhaps none of these things would happen. Because not many Americans actually believe that abortion, especially most abortions, which take place in the early part of a pregnancy, are actual baby-killing. Doesn't that put a spot light on the lack of logic in the so-called pro-life position?
If it's killing a baby, then of course, as Trump blurted out, a woman who gets an abortion is guilty of a crime. And that crime is murder. So you don't just give someone a slap on the wrist for murder, do you? And if you hire somebody to be the murderer, as a woman who hires an abortion provider does under this scenario, why would just the one committing the actual "murder" be guilty? The woman, in this scenario, is at least an accessory to murder. And that is not something to be taken lightly in the law. That is not something that can be wiped away with a small fine.
Framing the argument has made all the difference here. Framing the argument as pro-life and pro-choice still misses the heart of it. Do we want a government enforcing something that is only called "murder" by some religions and not others, never mind the rights of atheists and agnostics? Do we want Sharia? Do we want the Morality Police?
When the Court ruled there was a right to privacy, this is what they meant; that our constitution enshrined individual liberty to such a degree that personal choice, even if some call that choice immoral, and especially if that choice entails the most private things women and men do with their bodies, must be protected from the strong enforcing arm of the government. It's time to shine a light on what a post-Roe world might be like, what kind of police state it might entail to catch these newly made criminals. So much for small government Republicanism. A party that stitches these things into a small-government cloth may not be able to last much longer, because it is either pretending to be the party of small government, or it is pretending to be the party that is serious about outlawing abortion. And we can thank Donald Trump's one moment of logical consistency for kicking off this debate yet again.