Post-Dobbs Abortion Law:
Be Warned of Sauce For The Goose[1]
In my recent book, The “Living Constitution” and the Right to Die,” I wrote that the 1908 Supreme Court of the United States case of Muller v. Oregon was a unanimous decision, one that today’s feminists, progressives, socialists, and such others should take no comfort from. To quote the Court:
That woman’s physical structure and the performance of maternal functions places her at a disadvantage in the struggle for subsistence is obvious. This is especially true when the burdens of motherhood are upon her. Even when they are not . . . continuance for a long time on her feet at work . . . tends to injurious effects upon the body, and, as healthy mothers are essential to vigorous offspring, the physical well-being of women becomes an object of public interest and care in order to preserve the strength and vigor of the race. [My emphasis.]
This patronizing view of American working women was not all the Court had to say about the weakness of women and their relationship and sacrificial duty to a paternalistic state.
Still again, history discloses the fact that woman has always been dependent upon man. He established his control at the outset by superior physical strength, and this control in various forms . . . has continued to the present. * * * It is still true that in the struggle for subsistence she is not an equal competitor with her brother [meaning, any man]. Though limitations upon personal and contractual rights may be removed by legislation, there is that in her disposition and habits of life which will operate against a full assertion of those rights. [My emphasis.]
It was bad enough that in upholding the statute the United States Supreme Court, which allegedly was concerned about “subsistence,” was limiting the working hours of those trying to subsist. Much worse was the Court’s view of working women as weak, timid, and dependent, even cowardly, in being unable or unwilling to assert their “rights.” Lest there be any doubt about what the unanimous Court was saying:
[Woman] is so constituted that she will rest upon and look to [man] for protection; that her physical structure and a proper discharge of her maternal functions—having in view not merely her own health, but the well-being of the race—justify legislation to protect her from the greed as well as the passion of man. The limitations which this statute places upon her contractual powers, upon her right to agree with her employer as to the time she shall labor, are not imposed solely for her benefit, but for the benefit of all. [My emphasis.]
This is altruism-collectivism-statism run amok.
That said, however, as I have written in The “Living Constitution” and the Right to Die,” few realized at the time that Roe v. Wade had opened a Pandora’s box.
By adopting the essence of Muller v. Oregon, in Roe the Supreme Court cavalierly legitimized an altruist-collectivist “state interest” in pregnant women and their unborn babies. Although in Roe anti-abortion laws were struck down to the loud applause of “pro-choice” zealots, they should not have rejoiced.
Not only because of the barbaric consequences of that decision, but also because of its horrendous implications.
Yes, in 1973, Roe discovered a theretofore hidden federal constitutional “right” to abortion, thankfully undiscovered recently by SCOTUS’ decision in Dobbs v. Jackson.
But what about next time? What if the altruist-collectivist “state interest” was a governmental Malthusian[2] need to compel abortions?
Compel abortions?
In the United States of America?
Kill babies in the womb, despite non-consenting parents? For the altruist-collectivist-statist “common good?”
Absurd.
Un-American.
Science fiction.
Unthinkable.
Ridiculous.
Impossible.
Not if we accept the inescapable, ultimate logic of Muller v. Oregon and Roe v. Wade, as seen from the perspective of a 1977 case in the Supreme Court of the United States.
The states, in the wake of Roe v. Wade, were obliged to revise not only their abortion laws but also a considerable number of related laws directly and indirectly affected by that decision. One example was Medicaid, which prior to Roe had funded certain childbearing expenses.
Connecticut Welfare Department regulations, which paid for childbirth expenses, limited State Medicaid benefits for first trimester abortions to those that were “medically necessary.”
In a 1977 case, Maher v. Roe, (a different Roe), the Supreme Court was asked to decide “whether the Constitution requires a . . . State to pay for . . . [non-medically necessary] abortions when it pays for childbirth.” [My emphasis.]
In other words, did Connecticut have a constitutional right to have a Medicaid funding policy that financially treated birth and abortion differently?
Before answering that question, the Court felt obliged to point out what Roe v. Wade had not held. According to the 1977 Maher v. Roe decision,
Roe did not declare an unqualified constitutional right to an abortion. . . . * * * [The decision] implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion, and to implement that judgment by the allocation of public [Medicaid] funds.
In other words, under, or despite, Roe, state governments could make “value judgments”— i.e., pass laws—limiting abortions. Spending your money and mine to “encourage childbirth over abortion.”
All well and good. But pro-life people should not have applauded.
If the State could favor childbirth over abortion, why could it not favor abortion over childbirth? Like China, or India in the bad old days.
Compelled abortion!
Absurd?
Think again.
Following the 6–3 majority’s statement in Maher that “[t]he State unquestionably has a ‘strong and legitimate interest in encouraging normal childbirth’ . . . an interest honored over the centuries,” there appeared a footnote not by some dissenting rogue dissenter, but by the Roe majority. A footnote as astonishing as it was ominous:
In addition to the direct interest in protecting the fetus, a [altruist-collectivist] State may have legitimate demographic concerns about its rate of population growth [or food, or pharmaceutical supplies, or whatever?].
Such concerns are basic to the future of the State and in some circumstances could constitute a substantial reason for departure from a position of neutrality between abortion and childbirth. [My emphasis in italics and bracketed material.]
If government is not “neutral,” it necessarily tilts to one side or the other. And even if it tilts for childbirth and against abortion, under the rationales of Muller, Poe, Griswold, Roe, Maher and other Supreme Court decisions, it can as quickly and easily tilt against childbirth and for abortion—not unlike democratic India, whose “demographic concerns about its rate of population growth” some years ago prompted it to depart “from a position of neutrality between abortion and childbirth” by instituting a program of forced sterilization. And, again, let us not forget Communist China, whose perceived need for male infants has for generations resulted in state-ordered and state-sanctioned female infanticide.
Bad, right?
This frightening American Supreme Court story gets worse.
Associate Justices Brennan, Marshall and Blackmun (principal author of Roe v. Wade) dissented in the Maher case.
Good, right?
One might have expected a ringing denunciation of the majority’s ominous assertion that, should population grow too large (or food become too scarce, or a rogue pharmaceutical cause in-womb deformities), “society” could forcibly rid itself of the unborn.
Remember, it is the SCOTUS’ liberal justices I’m talking about.
There was no denunciation.
Not one word from any of the three liberals.
Why?
Because in the end, albeit regarding different issues and in different degrees, too many judges and too many other Americans are at their core altruists, collectivists, and statists, the only difference being what government conduct they value or disvalue at any given moment.
No one won in Roe v. Wade. Not Texas, Roe herself, the Court, nor constitutional law. Certainly, during the last fifty-years not the literally countless aborted unborn who have died because the Living Constitution is alive and well, even with a six justice "conservative" Court. And, like killer viruses, the Living Constitution grows, certainly in academia.
And because sauce for the goose is sauce for the gander.
[1] The expression “Sauce for the goose is sauce for the gander,” is popularly understood to mean that if something is good, acceptable, or beneficial for one person, it is or should be equally so for another person(s) as well.
[2] Malthusian theory is the doctrine proposed by British economist Thomas Malthus (1766–1834) that exponential increases in population growth would surpass arithmetical increases in food supply with dire consequences, unless population growth was arrested by such means as famine, war, or the control of reproduction.
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