Texts are tricky things, whether they are scriptural, historical, literary, or constitutional. People who claim to be “textualists,” or even (in constitutional circles) “originalists” often hide behind the rhetorical value of being such a thing without acknowledging the actual difficulty of doing it. Texts are not self-interpreting units of meaning that will yield their secrets with no effort, but only to the pure in heart.
Textual interpretation is a process of asking certain, well-defined questions and then trying to answer them from the words on a page. It has always been more art than science, and the value of the answers ultimately depends on the quality of the questions. The process of asking questions of a text is sometimes called “framing.” The way we frame a textual question controls the kind of answer we get, because it determines the kinds of things we look for.
The Supreme Court’s recent decision in Dobbs v. Jackson is, I believe, an example of really bad textual interpretation. I am not talking about the result here of denying the women of around half the states in the union the opportunity to make their own heath-care decisions, which I also believe is a bad result. I am talking about the questions that the majority was asking to begin with, which were really bad questions. As a result, the Court has empowered state legislatures (and possibly the national Congress as well) to ask another series of bad questions that will produce even worse answers.
What follows are four arguments about framing that, if I ran the world, would be taken into account in both the judicial and the legislative debates about the abortion issue. These are not policy claims, but interpretive arguments about the kinds of questions that should lie beneath our policies. The first two arguments deal with the way that the Supreme Court framed the issue. The last two deal with the ways that various state legislatures have framed, or will frame, the abortion question in the wake of Dobbs v. Jackson. Here they are:
1. The historical right in question is not abortion per se, but bodily autonomy. Justice Alito’s argument in Dobbs v. Jackson goes something like this: “Constitutional rights are either specifically enumerated in the Constitution (the right to free speech) or deeply rooted in the nation’s history and traditions. The right to an abortion is not enumerated in the Constitution, nor is the right to an abortion deeply rooted in the nation’s history and traditions; therefore, there is no Constitutional right to abortion.”
The first framing problem here is that the question is framed far too specifically for the kind of interpretation being proposed. The right to have an abortion is a specific instance of something else, namely, the right to decide what is best for one’s own body, and this right is very deeply rooted in the nation’s tradition. People have, and have always had, a right to bodily autonomy. It would be unthinkable for the Supreme Court to permit a state legislature to forbid people to remove a wart because some religion saw wart-cells as sacred, or to prevent the treatment of cancer because legislators saw cancer as God’s judgment on sinners. People have a right to believe these things; they do not have a right to use those beliefs to determine how other people use their body.
If we simply substitute the term “bodily integrity” for the term “abortion” in Dobbs v. Jackson, it barely even achieves semantic sense, much less ideological coherence. And there are very few rights that can’t be abrogated by looking to the Constitution, or American tradition, for evidence of overly specific application of those rights. We do not limit the right to bear arms to muzzle-loading muskets, nor do we limit the freedom of the press to things actually printed on a hand press. It is no different to argue that bodily integrity is not protected in the Constitution because it nowhere mentions a surgical procedure that did not exist when the Constitution was created.
2. The correct Constitutional question is not “where is the right granted?” but “where is the government power enumerated?” From the originalist perspective, Alito’s reasoning is not merely wrong; it is exactly wrong. The framers of the Constitution did not believe that it only protected the rights that it enumerated. In fact, they argued against including a Bill of Rights in the initial document because they did not want to create an enumerated list of rights that would suggest that other rights are not protected. Hamilton says this clearly and directly in Federalist 84:
I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power.
Hamilton’s argument (and Madison’s too) was that the question Alito asks is precisely the question we should not ask about rights in the Constitution. The correct question is not, “where does the Constitution grant a person the right to do something?”; rather, it is, “where does the Constitution grant the state the power to prevent a person from doing something?” Where, in other words, does the Constitution permit the state to use its coercive apparatus to control an individual’s medical decisions? By the logic of the framers themselves, codified in the Ninth Amendment, we need to ask where the Constitution empowers the state to restrict a right and not just where the Constitution permits a citizen to assert it.
3. The view that life begins at conception is an inherently religious view that should not be used as the basis for law. Not only do the laws currently being passed in state legislatures across the country enshrine a specifically religious view that has never been used as the basis of law in the United States before—the idea that life begins at conception and that a two-celled zygote is entitled to the full protection of state. This is a very recent, poorly formed religious principle that very few actual religions believe.
The Bible is actually just as silent on abortion as the Constitution is, though the one reference to unborn children in the biblical text does not support the current Evangelical doctrine. This reference occurs in Exodus 21:22-23:
If men strive, and hurt a woman with child, so that her fruit depart from her, and yet no mischief follow: he shall be surely punished, according as the woman’s husband will lay upon him; and he shall pay as the judges determine. And if any mischief follow, then thou shalt give life for life.
When we compare the punishment in biblical law for causing a miscarriage (a fine) to the punishment for committing a murder (death) we cannot avoid the conclusion that, for the Ancient Jews at least, a fetus was not considered to be, or protected as, a person. There is not much else we can claim from this. I do not suggest that this means that the Bible permits abortion in all circumstances, but we cannot get to fetal personhood from any other text in the Bible.
No Christian denomination that I am aware of actually treats an unborn child as a human life. Churches that baptize infants do not baptize stillborn children. Churches that preach the need to accept Christ do not preach that two-celled organisms that are spontaneously aborted go to hell. The full theological equation of a zygote and a human being is really not a thing when the question is something other than abortion.
And the American legal and common-law traditions have never accorded personhood, or Constitutional rights, to unborn fetuses. We have never required that missed periods be reported to the authorities or that spontaneous miscarriages during the first few weeks of pregnancy be investigated as possible homicides. We don’t count every fertilized egg in the census or use it to decide congressional representation. And we do not grant jus soli citizenship to every child conceived in the United States. In a hundred ways, membership in the political community begins at birth, and this fact is as deeply rooted in the nation’s history and culture as any fact could be.
There are no simple religious answers to the question, “when does life begin?” This involves complicated questions about souls and afterlives and the intentions of deity that even religious people do not agree about. There is, though, a very clear political answer to the question, which is the only one that we can use as public policy in the absence of established religion: life begins at birth.
4. Women are better able to make difficult moral choices around their own bodies than legislatures are. The terms “pro-life” and “pro-choice” are both bad framings of the abortion debate. Everybody involved in the debate is pro-life; the arguments surround the definition of human life and the relative valuing of different kinds of life. Everybody is also pro-choice. The debates are about who gets to decide.
The specific argument of state legislatures, and the implicit argument of the Supreme Court, is that legislators are better able to decide when abortions are appropriate, and when they are not, then women themselves are. Anyone listening to the statements of state and federal representatives about pregnancy and abortion should know just how dangerous this idea is.
Most of the new state laws make some exceptions to outright abortion bans, such as (in the case of Utah for example) exceptions for rape, incest, and the life or health of the mother. But they try to enforce those exceptions through laws and courts that simply aren’t capable of the kind of moral reasoning that these decisions require. What constitutes rape, for example? Is a woman’s testimony enough, or does there have to be a conviction? What constitutes consent? Must we conduct a full hearing to tease out the extent to which women have been coerced by their partners to have sex? Do we even believe that women can be coerced by their partners? What is a legitimate health issue? What does the chance of the death of a woman have to be before the state considers it a “life of the mother: issue?
These are difficult questions that require nuanced analyses of a lot of different factors. Neither courts nor state legislatures have historically proven to be good at this kind of reasoning. Laws are blunt instruments, and judges, in many cases, are even blunter. And legal processes take more time than women normally have when making decisions about their own reproductive health.
There are a lot of proven ways to reduce the number of abortions in a nation. These include making contraception available, making health care affordable, and making education universal. Criminalizing abortion and punishing women does not generally reduce the number of abortions, but it does endanger the lives of women and prevent them from participating in society as full-fledged citizens trusted to understand their own bodies and make important decisions about their own lives. This rampant mistrust of women and contempt for their choices unfortunately IS deeply rooted in the history and traditions of the nation. But it never should have been, and it never should be again.
By Common Consent, a Mormon Blog 
Your thesis #2 is faulty in this case, because it’s actually a two-part question, modeled after the 10th Amendment. If regulation of abortion is not a power granted to the federal government (it’s not), and not prohibited to the states (again, it’s not), then it is a power that is delegated to the states, which is exactly what the opinion in Dobbs held.
It also doesn’t help the “right to bodily autonomy” argument that for the past year and a half, we have had people pushing the idea that the government can overrule your bodily autonomy by forcing you to get a vaccine. You can’t let the government override bodily autonomy in one area without weakening it across the board.
The 10th Amendment reads:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
It is, originalistically, an error to read this as granting all powers not granted to the federal government, or prohibited to the states, to the states. The phrase “or to the people” still means something. The question is whether the power to control bodily autonomy lies with the state or with the people. The “limited government” approach, bolstered by the 9th Amendment, would suggest the latter.
I will be much more inclined to accept the 10th Amendment argument if the people advocating it actually stop advocating a national abortion ban AR the same time, and if all current federal regulation of abortion is rescinded.
And the argument about vaccines cuts both ways. Yes, a lot of people who support abortion rights have been advocating mandatory vaccines. But a lot of people who screamed that mandatory vaccines were unconstitutional are now advocating the complete criminalization of abortion. The “not having it both ways” argument goes both ways.
The 10th Amendment is best understood by looking at its parallelism (the key to that is the word “respectively”).
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
If a power is not delegated to the United States, it’s reserved to the States. The exception to this is if a power is prohibited to the States, then it is reserved to the people.
From there, it’s up to the people of each state to limit the powers of their state through their state constitutions. In that way, all power is ultimately retained by the people.
But that doesn’t change the fact that Dobbs simply recognized that abortion is not within the powers granted to the federal government, and it’s not prohibited to the states, and so it returned the matter to the individual states. That was a proper application of the constitutional principles, which still undermines your second thesis.
I don’t find it hypocritical or a double standard, to argue for bodily autonomy for abortion, but not for vaccines, why? Because an individuals vaccination status contributed to herd immunity. Getting vaccinated was less about yourself, and more about others. Abortions aren’t contagious, viruses are.
Michael, there’s an important element in Alito’s opinion that you missed in your point #1.
Until Dobbs, this was the test of whether a substantive right is protected under the Due Process Clause of the Fourteenth Amendment: Is the right fundamental to our system’s scheme of ordered liberty or deeply rooted in the nation’s history and tradition? (Enumeration of the right is not part of the test.) Alito changed that test. Under Dobbs, the “or” is changed to “and.” So, under this new test, any right that is not “deeply rooted in our history and tradition” gets no Due Process protection, regardless of how essential it might be to our liberties.
If you think that seems slippery, you’re right! Alito changes the test by deliberately misstating the precedents, without defending or even acknowledging what he’s doing. It would be an embarrassingly bad omission of logic in any Supreme Court opinion, much less an opinion as consequential as this one.
That said, I think your point about framing the historical right to bodily autonomy is correct, Michael. Characterizing it in this artificially narrow way was the Court’s only path to depriving the people of this right.
“People have, and have always had, a right to bodily autonomy.”
Well, not all people.
In one paragraph you suggest that the question whether to abort a child is no different from deciding whether to remove a wart, in another you assert that the decision whether to abort a child is a “difficult moral choice.”. If you really believed the former proposition, you would hardly consider the question whether to abort a child a “difficult moral choice.”
But the court does not make that moral choice, or any other. The court simply says that there is nothing that grants to the court, nine unelected life-tenured lawyers, the right (to say nothing of the ability) to make those moral choices. It is ironic, especially as we approach the national holiday where we celebrate the proposition that “Governments are instituted among Men, deriving their just powers from the consent of the governed”–that a large portion of the nation’s population appear to have rejected that idea, instead appearing ready, in Lincoln’s words, to “cease[] to be their own rulers, . . . practically resign[ing]their government into the hands of that eminent tribunal.”
Yes, Michael, I have to agree with John C. above, and not just in regards to America’s history with slavery and coverture laws (which is, I suspect, what he was alluding to). I would argue that bodily autonomy is a relatively new concept in both law and social philosophy; obviously rooted in long-standing common law presumptions, but also not articulated in any kind of individualistic way until the past century, or maybe much less than that. That is not to say it is a bad concept (I think it is–mostly, if not entirely–a very good one), just that your suggestion that abortion really isn’t about abortion, but rather about bodily autonomy generally, is a rhetorical shift that makes (mostly) perfect sense today, but also maybe doesn’t stand up to historical scrutiny. (This was actually central to the Kansas state supreme court decision protecting abortion rights which is being challenged in an upcoming amendment vote. If you live in Kansas, vote no on August 2!)
Russell,
“Obviously rooted in longstanding common law presumptions” is actually the entire question that is at issue in the Dobbs decision. That is what Alito means by “deeply rooted in the nation’s history and culture.” I didn’t say that abortion is not about abortion. I said that looking in the national common law tradition for a right to abortion, rather than a right to bodily autonomy, is applying the decisions own logic incorrectly. If a right to bodily autonomy exists in the common law tradition, than a right to a specific instance of bodily autonomy can also be derived from the same source. If my rental agreement allows dogs, then my landlord can’t evict me for having a golden retriever.
I guess I’ll be the first to point out that Michael did not say that the decision to abort a child is no different from the decision to remove a wart. First, he literally did not say that. Second, that’s not how analogies work. And third, in Michael’s analogy, there is a hypothetical religion that does regard wart removal akin to abortion. I guess if I were a follower of that religion, I would regard life-saving wart removal as a difficult moral choice. But I wouldn’t expect the legislature to make that choice for anyone else.
” People have, and have always had, a right to bodily autonomy.”
If we’re playing “cite the Bible” here, 1 Corinthians 6 sure takes a different view on the entire thrust of your arguments in this post.
Also, Michael, in your view, what is the “like unto it” referenced in D&C 59:6? Is it a reference to the immediately preceding clause, or does it apply to actions listed in the entire sentence?
tubes,
I can’t speak for Michael, but whoever wrote the LDS footnote for “like unto it” there definitely wasn’t attaching that clause to murder. They went in some other, fairly offensive, direction.
Your #3 is absolutely incorrect and is blatant science denialism (or ignorance). The life of any mammal begins at fertilization (when the sperm fertilizes the egg and they become a single-cell embryo). “When life begins” is answered by science, and not religion. You, as a pro-abortionist, may hide behind vague religious ideas about when a spirit enters a body to argue about when life begins, but from a scientific standpoint, there is no uncertainty.
Aren’t you just trading your loaded questions for Alito’s?
From a scientific standpoint, life originated some 4 billion years ago, and has existed continuously ever since. The individual gametes are just as alive as the zygote. The haploid (gametophyte) generation of a plant is just as alive as the diploid (sporophyte) generation and neither one represents the beginning of life, just as meiosis or fertilization doesn’t represent the beginning of life in an animal.
Danyl, I quite specifically framed the question of when life begins as a political question rather than a scientific or a religious question, because the political definition is what concerns us in this debate. Of course a fertilized egg is “life” from a scientific viewpoint. But this tells us nothing about when the political rights enshrined in the Constitution attach to an organism, which is the question we are trying to answer. And when I say that those rights do not attach to an organism until birth, I am not making an argument about what should be. I am just stating how the Constitution and its various rights-guaranteeing amendments were understood by their original public audiences at the time of their ratification.
This is why framing the issue is so important. If we use a religious or a scientific lens to frame the political question, we will almost certainly end up with the wrong answer.
jader3rd, if you are going to claim that vaccination can override bodily autonomy because it affects other people, then the same argument can be used for abortion. After all, it impacts (more directly than vaccination/herd immunity does, in fact) another person* by ending their life.
* Assuming, as many pro-life people do, that a fetus is a person in some form.
Observer, I think that the government can get involved with determining bodily autonomy for members of the society. So the bodily autonomy is still for the woman. I don’t think that some fertilized cells have bodily autonomy because they’re entirely dependent upon another body. They’re not autonomous at all.
“When does life begin?” is a philosophical question and maybe also a religious question. “What marks the beginning of an individual human organism?” is a scientific question for which there is a relatively easy answer: fertilization (and in some cases, splitting of the zygote). “To whom do we grant the rights of personhood?” is a political question. The notion that banning abortion imposes a religious belief on the populace is, to be perfectly honest, one of the laziest arguments that I see regularly thrown around.
To answer the political question with an appeal to history is, again, lazy. It would be a solid point to make if someone were making the case that the Constitution protects the unborn; the fact that fetuses have not traditionally been treated as persons is a strong indication that the Constitution does not, on its own, protect the unborn. But that’s not the question we’re currently grappling with. I find it hard to imagine that Michael would oppose expanding rights through legislation to other groups not traditionally protected.
Michael completely ignores centuries of precedent hold that states possess the police power, and that they have extremely broad powers except for specific constitutional carveouts or limitations imposed by their own constitutions.
We also don’t tolerate telling parents that they know best in other circumstances where the parent believes that what’s best for the child will result in injury or death to the child. That argument sounds appealing until you think about its application in literally any other context.
Michael,
I appreciate your comments.
Abortion has become a political football. Our politics are so broken a political solution seems unlikely.
I believe the Proclamation on the Family sets God’s standard. It would be wonderful if every child were born in the bonds of matrimony to parents who love and wanted them. However, what are we to do with the many for whom this standard is unrealistic given their current circumstances?
Adoption is a beautiful choice for some but it is not without its challenges.
Hilary Clinton advocated for legal, safe and rare abortion.
Perhaps we could shoot for making abortions rare….?
What if we provided accurate sex education and affordable resources for family planning? What if we eliminate the shame around unwanted pregnancy? What if we provided economic supports to women who might be in precarious financial situations and enforce child support payments on the part of father’s?
I don’t know what the answers are but the anger on both sides of the issue seems counterproductive to me?
I think it is perfectly acceptable and noble to want to protect unborn life. However, if we sentence children to a life of deprivation or neglect that isn’t much of a win. Abortion simply for the sake of convenience doesn’t sit right with me. (I don’t think this is the kind of abortion that most people support anyways). Perhaps we should make abortion a little inconvenient… but just how much more inconvenient I don’t know.
For those who are pregnant through trauma such as rape we need to be as supportive and accommodating as we can be.
Is there a happy medium?
Any thoughts…
Wow. Kinda depressing how much smarter you are than Alito. Not being sarcastic here. That decision was so obviously an outcome in search of a reason and so poorly framed.
The bodily autonomy piece is so important. Of course we recognize bodily autonomy! Perhaps the very obviousness of this is why it’s NOT in the Bill of Rights.
So I guess my question is how can we fix this? So depressing.
To commenters saying this decision is simply about letting the states instead of 9 unelected judges decide:
The whole point of rights is to protect the minority from the majority when it comes to core rights.
Women historically have been and remain poorly represented in literally every level of government. That’s why we need rights that state legislatures can’t take away.
My ability to lead a healthy life (and not have my body commandeered by the state to carry and birth a child, by c-section by the way for me) should not depend on whether I live in a red state or a blue state. My doctor shouldn’t have to worry about whether a specific exception applies if I am in need of urgent medical attention. No legislature will be able to write legislation adequate to address this because it’s an individualized issue that should remain with the individual.
Telling a woman “your rights didn’t get taken away they just got restored to their rightful place in the (75% male and mostly Mormon, in Utah at least) legislature” is not comforting because I am not represented there and not one single person in the legislature has experienced or understands every possible abortion scenario.
Re: Elisa. On a post regarding framing, it’s unfortunate to frame a comment that the six justices you disagree with must be mentally deficient. The world can’t be divided up into people who you agree with and stupid people.
And “how can we fix this?” We fix this in the same way 20 states did before Roe–by use of the democratic process. Persuade, vote, advocate, and compromise where possible. All the while assuming the good faith in others while demanding it from them. That’s the backbone of our democracy–or at least it used be before both parties started playing the high-stakes game of looking to 9 lawyers to tell them who was right all the time.
@JimBob, Alito’s reasoning was bad, for reasons outlined in this post and others. So I’ll gladly stand by my comments.
Color me not-relieved that now my right to bodily autonomy and the ability to make personal medical decisions about my physical and mental health is at the mercy of my state legislature — which is currently 93% white, 86% Mormon, 78% Republican, and 76% male–and in a state that by various measures ranks either 49th or 50th in the country for women’s equality. How is that representative of me?
The whole purpose of fundamental rights is that there are certain rights that are so fundamental that they can’t be subject to the whims of the legislature, even in a “democracy”. They can’t be abrogated by the will of a majority that could oppress and subjugate a minority. For my entire life, my fundamental right to bodily autonomy–my right not to have my body and medical decisions commandeered by a bunch of guys in Salt Lake who think their job is to enact Church policy as Utah law–has been recognized. That changed last week, and I don’t take any comfort in 20 states recognizing that.
So no, “democracy” is not a comfort to me when it means that a group of people who will never understand or live my life and who are not medical doctors or experts on reproductive health (by ANY STRETCH) of the imagination gets to make my medical decisions for me. That’s not something a legislature should be involved in. It should be off-limits. That is the entire point of rights. But somehow, we live in a hellscape where a man has nearly-unfettered access to a literal killing machine (that he can use to murder his pregnant partner–homicide is the LEADING CAUSE OF DEATH for pregnant women) because he has a fundamental right to that, but a woman doesn’t have a fundamental right to her own damn body.
Pro-Tip: If you have women in your life that are upset about this decision, let them be.
It sounds like you and I agree, Elisa: democracy is much harder than just finding 5 like-minded judges. It forces us to shelve our righteous indignation and work across the political spectrum to find common ground and compromise. Otherwise, we’re all just going to websites and groups mostly populated by people with similar views to our own; congratulating ourselves on our own superior intelligence; giving out pedantic pro-tips to those we don’t; and changing no minds whatsoever. And then wondering why things won’t change.
No, Jimbob, there’s no compromising on fundamental rights. That’s the point. There’s no tit for tat when it comes to women’s health & self-determination.
I don’t know about you, but I actually have looked at all sides on abortion and, in fact, my views have changed significantly as a result of new information and experience. I know many people for whom that’s the case. Can you name a major political issue on which your opinion has ever changed? Is there anything that anyone could tell you that would change your mind on abortion?
I enjoyed the article, Michael, but I have a question about your point #2. I cannot think of any time when people argued “where does the Constitution grant the state the power to prevent X?” I’m sure there have been such times, and I would appreciate people discussing that. But in general my impression is that people assume that a legislature can pass laws about anything that isn’t expressly forbidden, rather than that it can only pass laws about things that are explicitly allowed.
Bryan, one of the tricky things about abortion is that you are always talking about two things: preventing a procedure and compelling a pregnancy. We miss a lot when we miss the fact that, when you outlaw abortion, you are at the same time using the coercive power of the state to compel someone to carry a pregnancy to full term. That is an enormous exercise of state power against an individual, and (I believe) there needs to be a Constitutional warrant for it.
I entirely agree with that very important point.
But it doesn’t address my question about your framing question #2. In general, I don’t think that legislatures, or the people in general, think that laws can only be passed on types of issues that are explicitly allowed; instead, they think that they can pass laws about anything that is not explicitly forbidden. But I guess you are not arguing in general, but about the explicit issue of forcing pregnancy.
Michael,
You can argue that any number of things required by state law “compel” something. Education is compulsory. Any kind of specific performance is compulsory. You are compelled to rescue persons that you put in danger or with whom you have a special relationship (both of which apply to abortion). The state can compel all kinds of actions, so it is up to people making the pro-choice argument that, even to the extent that prohibition of abortion “compels” pregnancy (it doesn’t; we all know how to prevent pregnancy), this is the kind of thing the state is prohibited from compelling.
Here is where the framing comes in:
If you ask 1,000 people whether or not the state has the right to protect unborn life, you will get a large % of people saying yes,.
If you ask them whether or not the state has the power to force a woman to carry a pregnancy to term, you will get about the same % of people saying no.
And I think that this would be true of almost any legislation that limits people’s freedoms. We saw this when some state agencies (including state universities) were requiring vaccines. These were extremely unpopular, and many legislatures pushed back and forbade local governments from passing such mandates. Same with mask mandates, or compulsory education laws, or concealed carry permits. When an issue involves state power over personal autonomy, most people frame the question as whether or not the government (at any level) has the power to invade personal choices, rather than whether the power lies with the state or the federal government. People tend to argue the federalism angle only when it supports the position they want to arrive at.
This is the essence of the quote from Federalist 84. Hamilton did not want to clarify the individual rights that the government could not invade, because he didn’t want to create the impression that, as long as a right was not specifically enumerated in the Constitution, the state could abrogate that right. Rather, he argued, people retained personal liberty over all areas that were not specifically articulated in the Constitution through the enumerated powers. This is the function of the current 9th amendment.
Dobbs presents Roe v Wade as a huge federal power grab by saying the federal government seized power from the states to regulate abortion. This is one way to frame the issue. Another way is to say that Roe determine that no level of government–federal or state–had the Constitutional power to invade someone’s right to make their own medical decisions. In this framing, Roe was a small-government solution to the problem by curbing the power of government at any level to interfere with a personal liberty that (in the opinion of the Roe majority) the Constitution lodged with the people. I think that this framing matters.
DSC
“Education is compulsory.” No it isn’t. The home school movement has won that battle in every state. Students cannot be compelled to attend school against their parents’ wishes.
“You are compelled to rescue persons that you put in danger or with whom you have a special relationship”: Not to the extent that you suggest. The state cannot compel me to give blood. Even to my own child. Even if I caused the accident that requires my child to need blood. This would be considered an illegal intrusion into my bodily integrity. Abortion prohibitions create a claim on bodily integrity on behalf of unborn organisms that does not exist for born organisms. There is no other example in which a state can compel the use of one person’s body to support another person’s life.
“we all know how to prevent pregnancy” Do we? Many states are passing legislation that prohibits abortion in the cases of rape and incest. There is no requirement in Dobbs that a woman consent to sexual activity before being compelled by the power of the state to carry a pregnancy to full term. There is not even a requirement that an abortion be permitted if the pregnancy will kill the woman.
If by “we all know how to prevent pregnancy” you mean, “don’t be born a woman,” than you are probably right. But that is not the country I want to live in.
Michael,
Yes, education is compulsory. It can be done through homeschooling, but you still have to meet state standards. You can’t simply not educate your child.
Please provide a citation to a case that determined that a state cannot compel you to give blood to your own child if you caused the accident. I hear this claim all the time, but I’ve never seen the case. The closest I’ve seen was a private party (not the state) sue a cousin (not a parent) to compel a bone marrow donation (for a condition the cousin did not cause). There is no other example of a similar requirement because pregnancy is unlike any other circumstance because there is literally only one person who can sustain the child.
“Many states”? How many Michael? How many states prohibit abortion from conception without a rape exception? Two? Three? And I guarantee political opposition will force those few to provide an exception.
“There is not even a requirement that an abortion be permitted if the pregnancy will kill the woman.” This is dishonest and you know it. Literally not a single state prohibits abortion where the pregnancy will kill the woman. Not a single one.
We all know how to prevent pregnancy. You know exactly what I mean by that, and your pretending you don’t is dishonest.
Federalist 84 makes the argument with respect to the federal constitution. Hamilton argued that the federal government is a government of enumerated powers, and so there is no point in carving exceptions out of powers that weren’t granted in the first place. That argument is not applicable to the states. The framing is either naive or dishonest.
Yes, Hamilton was referring to the federal Constitution only. States at the time were not bound by the Bill of Rights. They could establish a religion, shut down a press, or allow people to own other people, put them in chains, and violate their bodily integrity in any way imaginable. The 14th Amendment changed all that, though, and now the courts (until last week) recognized that states had to follow the same rules that the federal government has to follow when it comes to invading people’s personal rights. You are saying “naive or dishonest” when what you mean is “recognizes the impact of the words:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Why appeal to Hamilton when you could have simply appealed to the Privileges or Immunities Clause? The answer is that you are making a dishonest argument. You are citing Hamilton to argue that states are akin to the federal government before the bill of rights in that they have to justify their regulatory power. But they don’t, and your citing the 14th amendment proves it. The 14th amendment incorporates the Bill of Rights, something that Hamilton argued wasn’t necessary. So Federalist 84 is completely irrelevant to the discussion.
So rather than convert states into entities that have only the powers delegated to them, the 14th amendment merely further carves out their powers. The burden is then on the person asserting a right to prove that the right is among those Privileges or Immunities of citizens of the United States. And it is impossible to make that argument with respect to either abortion or the more broadly defined right to bodily autonomy.
The answer to, “How many states ban abortion in cases of rape or incest?” is 11: Alabama, Arkansas, Florida, Kentucky, Louisiana, Missouri, Oklahoma, Ohio, South Dakota, Tennessee and Texas.
The life of the mother question is more difficult. Since the Supreme Court decision does not make any requirement, states can do what they want. Every state has some wording, but it remains up to the state to decide how life threatening a pregnancy has to be, and we are already seeing doctors being afraid of being prosecuted for life saving abortions:
https://fivethirtyeight.com/features/even-exceptions-to-abortion-bans-pit-a-mothers-life-against-doctors-fears/
As for the blood transfusion question, you are framing it incorrectly too. If you think that a state CAN compel a parent to submit to a blood transfusion, you have the burden of proof to show a law that allows this kind of coercion. This is because there is a default assumption in our legal system–one that the Supreme Court simply pretended did not exist–that people’s bodies belong to them–and that no state entity at any level can direct how people make decisions about their blood and internal organs. If you have evidence that this is not true, then show me the law.
And, just a pro-tip: I would be careful hanging too much on the federalism argument because the current Republican party does not interpret the Supreme Court ruling as a remand to the states. They are actively advocating a national abortion ban:
https://edition.cnn.com/2022/06/24/politics/republican-reaction-abortion-congress/index.html
I hope that you will at least follow the logic of the convictions you have expressed in this and other threads and denounce this effort on behalf of rogue legislators to federalize abortion legislation that began just an hour or so after the Supreme Court allegedly declared that it was a state issue. That way, we can come to at least one area of agreement before the discussion tapers off and other things occupy our attention.
“Why appeal to Hamilton when you could have simply appealed to the Privileges or Immunities Clause?”
Do you really not understand the relevance here? I find that amazing, since it is not a particularly difficult point, and it has been fairly standard among both historians and jurists for the last hundred years or so: Hamilton and the other authors of the federalist papers articulated a vision of government power at a time when a majority of states permitted slavery, an absolute abrogation of bodily autonomy. The only rights they could create were federal, because most of the states recognized no rights at all as universal. However, when the Civil War Amendments effectively applied the Bill of Rights to the States, then the states were held to the same standards that Hamilton held the federal government to. The Federalist papers are not legal documents. They do not constrain anybody’s interpretation of the Constitution before bords no entirely irrelevant.
“And it is impossible to make that argument with respect to either abortion or the more broadly defined right to bodily autonomy.”
Um, no. It is not impossible to make that argument. This argument was the law of the land for 50 years under Roe v. Wade. While you may not agree with the argument that bodily autonomy is among the privileges and immunities protected by the 14th Amendment, it is not an impossible argument to make. The give-away here is that a whole lot of people have made and continue to make it. The evidence for a common-law presumption of bodily autonomy is actually fairly strong. If I were in some kind of neutral historical debate on the topic, I would much rather be defending this case than opposing it. It is no accident that It took 50 years and 15 Republican Supreme Court appointments to find 6 judges willing to ignore both the historical evidence for this presumption and the judicial precedent in its favor.
Saying that this is an “impossible argument to make” is just silly.