I am not an American – as in citizen of the United States of America. [Of course, I am an American in the sense that I was, as were my parents and their parents before them, born in the Americas.] Still the recent decision of the US Supreme Court in Dobbs v. Jackson Women’s Health Organization overturning Roe v. Wade is disturbing – seriously.
There are a number of reasons. First, I support choice. I believe that women have the right, once impregnated by a man, to choose whether or not to carry that child to term. This is a right of the pregnant woman.
Second, I believe that women have this right even though I do not believe in rights. Quite simply, as the recent decision shows, rights are as Jeremy Betham once noted, ‘nonsense on stilts’. Reading the Supreme Court majority in Dobbs, it is clear that any freedom based on some 20th Century idea about rights is really only as real as a group of well-paid guys think it should be. However, the rights can also be seen as respect for the dignity and humanity of others. Respect for others exists when all people are recognized and treated with kindness and care. With respect, people would accept that when a woman choosing to have sex with a man is not choosing to bring a child into the world any more than a man choosing to have sex with a woman is doing so. And, with respect, in an intimate relationship when a child is conceived, the decision to keep or abort the fetus is the woman’s to make, because it is her body and her life which allows the process, the miracle of birth, to happen. To call this decision a ‘right’, in some respects, diminishes what is being asked of the woman. A right becomes property, an aspect of ownership. The right to choose is more than a woman’s property like her clothes or her car – her stuff that she can use, abuse, or even sell depending on whim. It is about her life – her dignity, conatus. The decision to have a child is more than a right. At the same time, I accept that rights are the way we talk about such things.
Third, while removing women’s right to choose is disturbing, the decision threatens the Rule of Law. EP Thompson controversially characterized the Rule of Law as an amazing cultural achievement. The fact that rights have come to dominate much of legal discourse since WW2 does not diminish the importance of the law in ensuring economic and social stability – while at the same time as enhancing individual freedom. I could warble on about this as it is hard to understate the role of law. Simply stated, this role depends on the law as being seen as legitimate. The legitimacy of the Supreme Court of the United States, a court at the pinnacle the judicial hierarchy in that country, has been under serious threat since the installation of George W. Bush as President in 2001. A recent poll of Americans indicated that only one in four Americans now hold the Supreme Court in great respect. If the Court’s legitimacy rests on the justices being ‘above politics’, being men and women of personal integrity whose decisions are based not on personal or religious belief but on an interpretation of the law, the decision in Dobbs v Jackson does the Court’s reputation serious harm Worse, three members of the court who ruled to overturn Roe v Wade mislead the Senate during their confirmation hearings. During those hearing three justices, when asked about their position on Roe v. Wade spoke about the importance of stare decisions, the role of precedent. Even when directly asked they did not state they would overturn Roe v. Wade at the first opportunity to do so. Rather they stated that they would respect established law. It is now quite clear that such answers misrepresented their views. The answers they gave when asked about Roe v. Wade now can be appreciated as skillful dissimulation. The three justice spoke with the intention to mislead and, in fact, did mislead a number of Senators into believing that they would not overturn Roe v. Wade. It makes no difference that a number of Senators did not, at the time of the hearings believe the nominees. What matters is that several Senators did believe that they would not overturn Roe v. Wade and that if they had been honest, they would likely not have been appointed to the Supreme Court. It now seems clear that they lied. Under oath. Before a committee of the Senate and on national tv. The problem now is summed up by Nietzche when he noted (paraphrasing) – I am not angry that you lied so much as I am upset that I will never be able to trust you again. So what else are these Justices lying about? Whose interests are they serving?
The decision in Dobbs v. Jackson Women’s Health is disturbing. It reveals that women in the US are second class citizens, that the Supreme Court of the US lacks respect bordering on misogyny, and that a majority of that Court doesn’t have a clue about how the legal system is supposed to work. Given the states where abortion will remain legal, many women will have access to abortion for now. Of course, the poor living in deep red states will suffer. And the Supreme Court’s gang of five are not done yet. But as with things like prohibition, where a majority of the people dislike the law, it proves difficult to enforce. Religious bigotry can only go so far.
Nadine McDonnell: I arrived in New Zealand from Vancouver in the 1980’s. Legally trained, I have been an enduring student of politics – and philosophy. Over the years I have come to appreciate the importance of ideas – and the ability to talk about them.