“Now, if Congress is right, there will be no such case, so it’s no problem. But if Congress is wrong, then the doctor will be able to perform the procedure and Congress couldn’t object.”
With those words, Justice Breyer made clear the hypocrisy of Congressional and Judicial attempts to intervene in private medical decisions of pregnant women. On the one hand, anti-choice advocates in and out of Congress suggest there is never a need for doctors to perform late term abortions to preserve the health of the mother. On the other hand, they want to prevent the supposedly unnecessary procedure. Yet more evidence that social conservative ideology, not medical judgment, has manipulated Congress and the Judiciary to score political points.
On top of that, as Linda Greenhouse wrote in her lead in the New York Times, "the proceedings seemed more like a medical school seminar than an appellate argument." An indication, perhaps, that when it comes to the health and life of a pregnant woman, medicine, not ideology and politics, is the proper profession to be making those consultations and decisions.
As we saw in this week's elections, it is amazing how
quickly and utterly one decision, macro or micro, can change things. In the cases before the court, this decision about the constitutional rights assured with respect to the health of pregnant women, is just that kind of decision.
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Outside the court, I wanted to talk to different people on both sides, wondering if the election results that seemed to be a resounding shift to the middle had any impact on people's views on abortion.
The Rev. Patrick Mahoney of the Christian Defense Coalition, vowed that "people of faith would not be bowed by their defeat in South Dakota," without acknowledging that people of faith differ on these issues. When asked what the biggest difference was between these cases and the very similar cases six years ago, without hesitation he replied "Sandra Day O'Connor. Kennedy makes us very hopeful."
He claimed that this issue was similar to segregation. "Was there a middle ground with Bull Connor? When African Americans were denied service at lunch counters or denied seats on a bus? I just don't believe in segregation." But what about the segregation of women's health, subjecting them to a politicized decision by a court and far-right politicians? He had no reply.
When pressed about finding a middle ground on these issues, he said, "we may never agree on what is or is not extreme on these issues, but perhaps we could agree to work together where we can, reducing unintended pregnancies," citing the 95-10 proposal from Democrats for Life and legislation modeled on it offered by Congressional Democrats.
When pressed further about living in a pluralistic democracy where the law should be neutral and allow for individuals to make choices in accordance with their beliefs, he reverted to the segregation argument, without replying how the federal abortion ban would not equate to segregating women's private health decisions.
He added, "I've been in DC 14 years and there will never be a middle ground on this issue because both sides are too invested in using it to raise money and perpetuate their organizations." There is certainly truth in that statement, but only one side is actively creating political and legal efforts to restrict what most Americans agree is not only settled law, but an essential part of our free society, choice. Progressives have long been working on policies not to ban, but to prevent.
That fairly civil conversation took place amidst a small but vocal, and amplified, group of pro-lifers. Judy McClean of Generations for Life shouted into a megaphone, "Young people are sick and tired of the killing of our generation. Pro-life women are having babies and pro-choice women are not having babies. Your side is losing," ignoring the fact that many mothers work in the pro-choice movement because they understand the importance of reproductive health and being able to make decisions with their doctors about their health and life.
Other issues brought up by speakers from Generations for Life included "empty meaningless sex, addictions, and depression" of pro-choice people. At one moment a woman from the crowd shouted above pro-choice protesters chanting about exemptions for rape and incest, "some of us were born of rape." The cacophony of anger and emotion from pro-lifers (and two pro-choicers) was as startling as the reality of the child of rape's experience.
I stood back and, as objectively as possible given my pro-choice views, listened to the anger, fear, regret, and remorse that poured out of many of the pro-life protesters.
These emotional observations were very different from what is portrayed by some pro-lifers like Leslee Unruh, who in the South Dakota campaign tried to put a better public face on the anger of anti-choice activists. It was, it seemed, the very thing the speaker from Generations for Life ascribed to the pro-choice side, people lost in meaningless, depressed and possibly addicted periods of their life who made decisions they later regretted.
But they had the right to make those decisions for themselves. The comfort and community they find amidst pro-lifers is understandable, but should not be the foundation for public policy.
We are constantly reminded in life of the importance of responsibility and accountability, and it's fascinating that the only thing the pro-life side wants to talk about is an outright prohibition of abortion, thereby limiting responsible and accountable lives of free will to lives of policy dictated from one narrow perspective.
That this happens on the steps of the Supreme Court, while the US Government is inside actively trying to deny women's private health decisions, should give any freedom loving person cause for concern. That it happens the day after an election that reminded us all, regardless of perspective, about the blessing our democracy is, is troubling.
An African-American pro-life preacher advocated that we "return to the principles of our Founding Fathers – that was when we were a strong nation. Women, if you don't want to have children don't do what it takes to have children." He and his wife have six he told the small crowd of about 30 pro-lifers, and he did not acknowledge that in some families, women don't have those choices, or that other families might want to choose fewer children.
I take a back seat to no one in my admiration for the Founders, but they got a couple things wrong, especially when it comes to women and African-Americans, and as a nation we've been trying correct those issues ever since. Here, on the steps of the Supreme Court, an African-American preacher argued for segregating, to borrow Rev. Mahoney's analogy, women's health decisions in 2006.
Another speaker from Generations for Life screamed into the megaphone "just look at all the young people here, rebelling against their parents who were pro-choice and then look at all the old people here standing up for death. Old pro death people are dying away because they did not have love."
Obviously shouted with deeply felt emotions, the lack of logic seemed not the least bit troubling to the speaker. The larger group of 40-50 young people from the National Organization of Women, marching in a circle and chanting, "our bodies, our choice" just twenty yards away also escaped her.
I did find one person standing in line to get into the court who seemed to occupy the middle ground on this issue. She had come from Germantown, Maryland, to see the Supreme Court in action, and was pleased it was such a momentous case. "I'm interested in hearing how both sides represent themselves. The middle ground on this issue remains under-represented. I especially have concerns about the health of women, not just the life of the mother, the health. It will be interesting to see how the justices weigh those important realities and find balance. Kennedy is clearly the swing man, though we really haven't seen Alito much yet," said Janet Koons.
Tuesday, voters like Janet Koons, reminded politicians of the blessings of our democracy, and the checks and balances our politics provides the people.
The abortion debate has contributed to the polarization of our politics more than any other, arguably, and pro-lifers need to take responsibility for the fact that their single-minded focus on prohibition, emotion, fear and anger, has derailed this country from improving reproductive health and reducing unintended pregnancies.
Progressives continue to work to promote comprehensive sexuality education, contraception and sexual and reproductive health and rights because we have faith in individual liberty, privacy and civil rights. It is time that the pro-life side of the debate, increasingly splintered but no less able to derail government, catches up with the rest of America.