anotherlongshot (anotherlongshot) wrote,

Comedy Night with Justice Scalia

No matter how much I disagree with his opinions, I always look forward to reading Justice Scalia's dissenting opinions on divisive social issues that were argued in the Supreme Court, such as sodomy and abortion, for the sheer comedic value that he provides. He writes his dissents with an unrelenting scathing tone and a liberal use of sarcasm in mocking the parts of the main opinion with which he disagrees. Absolutel lovely stuff, if you ignore the utterly unsavoury nature of the views that he's actually expressing.

Here are some gems from Planned Parenthood v. Casey:

1. The Court's statement that it is 'tempting' to acknowledge the authoritativeness of tradition in order to 'cur[b] the discretion of federal judges' of course rhetoric rather than reality; no government official is 'tempted' to place restraints upon his own freedom of action, which is why Lord Acton did not say 'Power tends to purify.'

2. The arbitrarines of the viability line is confirmed by the Court's inability to offer any justification for it beyond the conclusory assertion that it is only at that point that the unborn child's life "can in reason and all fairness" be thought to override the interests of the mother. Precisely why is it that, at the magical second when machines currently in use...are able to keep an unborn child alive apart from its mother, the creature is suddenly be protected by law, whereas before that magical second it was not? That makes no more sense than according infants legal protection only after the point when they can feed themselves.***

3. The Court's reliance upon stare decisis can best be described as contrived. It insists upon the necessity of adhering not to all of Roe, but only to what it calls the "central holding." It seems to me that stare decisis ought to be applied even to the doctrine of stare decisis, and I confess never to have heard of this new, keep-what-you-want-and-throw-away-the-rest version. (My personal favourite)

4. I am certainly not in a good position to dispute that the Court has saved the "central holding" of Roe, since to do that effectively I would have to know what the Court has saved, which in turn would require me to understand (as I do not) what the "undue burden" test means. (After demolishing the majority's insistence that it upheld the "central holding" of Roe, Scalia went on to list the parts of Roe that the majority departed from.)

5. But to portray Roe as the statemanlike "settlement" of a divisive issue, a jurisprudential Peace of Westphalia that is worth preserving, is nothing less than Orwellian.

(emphasis added)

Despite my disagreeing with what he said about how there's no constitutional right to abortion because the Constitution says nothing about it (this is a flawed method of constitutional interpretation, especially for a Bill of Rights as limited as the American one, for it obviously doesn't list all the fundamental liberties that a citizen is entitled to enjoy without government interference; even a document like the European human rights convention which lists a lot more human rights is not interpreted strictly based on its text. Scalia claims to be an originalist but it cannot be the case that the Constitution doesn't evolve with the times, because it clearly does not provide an exhaustive list of rights and because a Constitution that doesn't safeguard a citizenry's rights is pretty much useless, which surely cannot be the purpose of a Constitution - that is, unless you're in Singapore) and because America has traditionally allowed for the proscribing of abortion (I need not point out how flawed this argument is), I actually agree with what he said in the comment marked ***. Make no mistake that he was merely pointing out the logical flaw in the court's reasoning and he clearly thought that the conclusion was wrong either way; but there is a definite flaw in the court's reasoning, which stemmed from Roe, which I think is contradictory and internally incoherent.

The court in Roe concluded that a foetus is not a "person" within the meaning of the Constitution and therefore is not entitled to constitutional protection, which means that the right to life is not engaged in the issue of whether there is a right to abortion. That made it easy for the court to decide that the woman's right to choose to terminate her pregnancy, ostensibly covered under the right to privacy though it's hard to see how, is more or less unfettered (because the court ruled that any measures taken by states to regulate abortions during this period would be unconstitutional)...until the point when the foetus becomes "viable". At the point of viability, states can constitutionally enact measures to regulate abortions, which include denying abortions to women who are in those late stages of pregnancy. The court justified this by saying that the state has a legitimate interest in protecting potential life.

In Planned Parenthood, the court pretty much affirmed this and said that the point of viability is the point at which the woman's liberty/right to abortion/etc is drawn, because "the state's interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions."

The logical flaw is this. The court in Roe more or less concluded that personhood (i.e. the factual state of being a person; I'm not talking about the philosophical implications of this term) begins with live birth, which implies that the foetus is NOT a person afforded constitutional protection anytime before that - including during the stage of viability. It is also unclear why the state suddenly has an interest in the life of the foetus that is constitutionally adequate after the point of viability; even though the reasoning here seems to be that at this point, the foetus resembles an actual human being because it can exist independently of the mother, this same state interest can arguably be extended to cover the entire pregnancy, including from the time of conception, because the natural progression of a pregnancy is that the foetus will reach the point of viability. In the same vein, even though the foetus now resembles a human being, the fact remains that it is a foetus and, as stated by the court in Roe, it is not afforded constitutional protection until live birth.

I've always accepted it as a given that abortions in the third trimester shouldn't be allowed but I didn't really know why. Now that I know why, I think it's crystal clear that a truly principled and consistent decision and reasoning would be to allow abortions at all stages of the pregnancy. It is unclear why 1) the state's interest in the life of the unborn child is suddenly legitimate at the point of viability, apart from pure sentimental reasons that intuitively - but not rationally - flinch at the thought of killing something that is getting closer to becoming a human being; and 2) accepting that the state's interest at this stage is legitimate, it should outweigh the right of the woman to terminate her pregnancy, given the court's acknowledge and affirmation of the deeply intimate nature of pregnancy and how an unwanted pregnancy without recourse to abortion, effectively forcing the woman to have the child, is an infringement on her liberty.

I don't accept the argument that the woman's right to choose in this context has to be taken hand-in-hand with the fact that an abortion involves the termination of a life. To me, this argument smacks of unfounded sentimentality and I find it utterly ludicrous that anyone would choose to prioritise the plight of an unborn being over that of a real, living, breathing woman. This line of thinking seems to be influenced by the human instinct to protect children because they are one of the most vulnerable classes of society, but it ignores the important fact that a foetus is not a child; it has the POTENTIAL to be a child, but it is not a child. This is an objective fact; but whether or not a woman is capable of going through with an abortion depends on how she views the thing growing inside of her. Some people are capable of having an abortion with no guilty conscience while others (like me) can't do the same - which is exactly why it is so important that the right to choose exists for the pregnant woman. It's therefore quite a shame that the reasoning in the two decisions mentioned in this entry, and especially in Roe, are logically inconsistent. I have no doubt that part of it is out of considerations of political morality, but as a matter of pure logical reasoning, I think it's internally incoherent.

Having said that, I have a feeling that I'm missing something, but it's 3 a.m. and I'm bloody tired so I'm just going to go to bed.
Tags: human rights, llm

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