Privacy and Autonomy
Roe vs. Wade determined that women had a zone of privacy and bodily autonomy protected by the Constitution.
"Roe was egregiously wrong from the start. Its reasoning was exceptionally weak. . .."
Justice Samuel Alito, in the draft abortion decision
Big problem for Republicans.
Democrats who supported COVID vaccine and mask mandates got a surprise in 2020 and 2021. They got a phrase thrown back at them, along with unanticipated resistance to their public health mandates: "My body, my choice."
There was a pandemic of the unvaccinated, but that wasn't the point. The politics and principle were the points. The "other side" wasn't going to tell us what to do. A significant number of people felt that a vaccination invaded their personal space, and they wouldn't stand for it.
As in Sunday's blog post, I again describe the peril for the GOP of achieving its stated political goals. The GOP celebrates Elon Musk buying Twitter and returning unfiltered Trump to the platform. They will regret that. And now the leak of the draft Supreme Court decision suggests the GOP will be able to satisfy the wishes and prayers of its anti-abortion constituents. The dog that catches the bus and bites the rolling tire gets an ugly surprise.
Samuel Alito's leaked draft goes way beyond what was necessary to ban the least popular late-stage abortions. One can imagine a Supreme Court ruling that preserved Roe and the legal architecture of privacy that surrounds it and other cases relating to contraception and LGBT rights. A decision could have made the argument that improvements in medicine regarding viability rendered Roe's timetable obsolete. Viability was now earlier, so the premise of exactly when a woman acted on her own needed to be updated. To give a clear margin of error to the fetus, the Mississippi law banning abortion after 15 weeks might be sustained. That ruling would never achieve unanimity, but it might have found grudging acceptance among a persuadable middle ground of people who agreed with the right of personal autonomy, but were uncomfortable with late-term abortions. Alito's draft rejects that approach.
His draft says there is no right of a woman to have an abortion founded in a right of privacy. Abortion, Alito noted, was not specifically mentioned in the Constitution, nor in the Bill of Rights, nor when the 14th Amendment was adopted in 1868. Of course, nor was there mention of birth control bills or IUDs or any other form of contraception in those documents, nor was their use commonplace and accepted. Nor were homosexual acts. Nor was same-sex marriage. If privacy doesn't exist for abortion, it doesn't exist for contraception or LGBT either.
The draft decision of the Supreme Court challenges widely-held notions of privacy and personal autonomy. The "My body, my choice" was a taunt, pointing out Democratic hypocrisy. It also reflects the changed mores of our society. On both left and right, we have come to think that people have increased right of bodily integrity and privacy. Bathrooms stalls have doors. People can watch pornography. People can buy sex toys. We have HIPAA and Protected Health Information.
Democrats learned, to their electoral peril, that even when addressing a communicable disease, a great many people demanded their autonomy, even at risk of their own lives, their jobs, and the health of their families, friends, and co-workers. Democrats do not need to worry about how to position and frame this issue to maximum political benefit to themselves. Republicans are doing it for them. They are filing and passing trigger laws to outlaw all abortions. They are absolutists, with no exceptions. In Idaho the family members of rapists can sue the mother for money damages if she aborts. They are already leaping on this leaked draft opinion to increase the pace of abortion bans. Republicans have the bus in their sight and the elusive tire is right there at last.
Alito's draft opinion says it is about democratic choice, not heavy-handed patriarchy attempting to dominate women. He wrote,
Women are not without electoral or political power. The percentage of women who register to vote and cast ballots is consistently higher than the percentage of men who do so.
This won't matter. Even if a significant number of women vote to support abortion bans, the fact remains that government majorities will be telling people what they can't do. The principle isn't patriarchy. It is autonomy and privacy. Women lost a right.
A Republican Congress and White House would now have the authority to end abortion, gay marriage, and LGBT rights nationally, not just state-by-state. These hot-button issues have been perfect wedge issues for Republicans running for president. Republicans and Fox could bark about the bus and rouse up support, but the bus was forever out of reach. Now it is in reach.