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Five years ago David Brooks wrote about abortion for the New York Times. Without a doubt, his column has become a key argument for overturning Roe vs Wade, returning women’s reproductive rights back to the states and men, whether they are bishops or legislators. The column is widely quoted on the Internet.
Justice Harry Blackmun did more inadvertent damage to U.S. democracy than any other 20th-century American. When he and his Supreme Court colleagues issued the Roe vs. Wade decision, they set off a cycle of political viciousness and counter-viciousness that has poisoned public life ever since, and now threatens to destroy the Senate as we know it.
When Blackmun wrote the Roe decision, it took the abortion issue out of the legislatures and put it into the courts. If it had remained in the legislatures, we would have seen a series of state-by-state compromises reflecting the views of the centrist majority that’s always existed on this issue. These legislative compromises wouldn’t have pleased everyone, but would have been regarded as legitimate.
Instead, Blackmun and his concurring colleagues invented a right to abortion, and imposed a solution more extreme than the policies of just about any other comparable nation.
Anne: I totally reject this last statement. In compiling the list of nations in which abortion was legal at the time of Roe vs Wade, I note that the Indian Parliament under the Prime Ministership of a lady Prime Minister Indira Gandhi, passes Medical Termination of Pregnancy Act 1971 (more commonly referred to as simply MTP Act 1971).
Once again, India was ahead of the United States in expanding womens rights. Shortly, India will guarantee 1/3 of their national government seats to women at a time when America is sliding backwards — compared to other nations — in its numbers of female legislators.
In matters of legislative governance, America is close to being a patriarchy. We rank 61 globally in having gender equity in political representation.
David Brooks doesn’t inform readers that abortion was legal and practiced in the United States at the time the Constitution was written.
American law regarding abortion was governed by English common law, saying that abortion was legal until the moment of quickening. Ads for abortions were openly advertised in America when the Constitution was written but the practice was not discussed because of strict laws against unmarried sexual activity.
Because hospitals and modern medical advances didn’t exist, most abortions were carried out by midwives. We will continue with a discussion of the medical history of abortion and the medicalization of maternity in another post coming shortly. We will also discuss the impact of immigration on women’s reproductive rights.
In rejecting Republican Supreme Court Justices Harry Blackmun, William J. Brennen, Potter Stewart, Lewis Powell and Chief Justice Republican Warren Burgers conclusion that a woman has the right to choose motherhood until the quickening, Brooks implicitly rejects her right to contraception, which was also governed by state laws, until the Supreme Court overruled them as unconstitutional.
The Supreme Court ruled 7-2 in Griswold v Connecticut that the state had no right to make laws — in this case making contraception illegal — because it invaded the “right to marital privacy”.
In writing Griswold v. Connecticut, the court said:
We deal with a right of privacy older than the Bill of Rights — older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.
The court likened the invasion of marital privacy by the states wanting to regulate contraception to breaking through the doors of one’s home.
The Griswold court didn’t mention any rights of single women to purchase contraceptives. In Eisenstadt v. Baird (1972), single people won the right to purchase and use contraceptives. Justice William J. Brennan, a concurring justice in Griswold, delivered the majority opinion:
If under Griswold the distribution of contraceptives to married persons cannot be prohibited, a ban on distribution to unmarried persons would be equally impermissible. It is true that in Griswold the right of privacy in question inhered in the marital relationship. Yet the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.
David Brooks is correct when he says that the Constitution doesn’t guarantee a woman the right to an abortion, even though abortion was practiced when the Constitution was written. None of us have a specific right to privacy either, outlined in the Constitution, although we frequently speak of our right to privacy.
Privacy rights were included in the Bill of Rights which said, for example, that citizens retain a right to the privacy of beliefs (1st Amendment) or privacy against using our homes to house soldiers (3rd Amendment).
Having established that women had rights as individuals, and not only as spouses, not to have the government reaching into their bedrooms, the Supreme Court defended women’s right to choose motherhood as a right belonging to her, not to her husband, to her church or to the government of the state in which she was living at the time of her pregnancy. Brooks rejects that women have any such rights to privacy.
Building on these two cases, the Supreme Court prepared to rule in Roe vs Wade. In rejecting the legal arguments of Roe vs Wade, Brooks by definition rejects the same rights to contraception and other rights as well.
Luckily women’s right to vote in America, which took 70 years to pass, is granted by the 19th amendment to the US Constitution. To the best of my knowledge, it would be difficult to return this right to the states, and it is safe for women.
The majority opinion of the U.S. Supreme Court in Roe stated that a federally enforceable right to privacy, “whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”
Writing for the seven-member majority, Justice Harry Blackmun argued that the state’s legitimate concern for the protection of prenatal life increased as a pregnancy advanced. While allowing that the state might forbid abortions during a pregnancy’s third trimester, he held that a woman was entitled to obtain an abortion freely, after medical consultation, during the first trimester and in an authorized clinic during the second trimester.
Even I was surprised to learn that it was five Republican men and two Democrats who determined that an American woman does have privacy rights that include her decision to choose motherhood and her independence of men in making the decision.
The men justices were primarily Eisenhower and Nixon appointees — hardly liberals. Not ruling for women’s rights in Roe vs Wade not only threatened to roll back contraceptive laws, but it opened the door to challenges against a host of other right to privacy laws that smart women would have brought back before the court, in a demand for consistency and equal treatment before the court.
David Brooks says that women are not guaranteed reproductive freedom in the American constitution. I repeat that abortion was legal and women had few rights anyway. As John Adams, America’s second president, wrote to his wife Abigail:
We know better than to repeal our Masculine systems. Altho they are in Full force, you know they are little more than Theory. We dare not exert our Power in its full Latitude. We are obliged to go fair, and softly, and in Practice you know We are the subjects. We have only the Name of Masters, and rather than give up this, which would completely subject Us to the Despotism of the petticoat, I hope General Washington, and all our brave Heroes would fight….
This is the familiar ‘trust me’ argument that David Brooks returns women to, with his states rights message.
There is absolutely no proscription against abortion in the Bible either. Abortion was permitted in Rome at the time of Christ and the word does not appear in the Bible. Rather, the subordination of women to the laws of religion was men’s interpretation of what God meant to say but didn’t.
No woman is under any pressure to get an abortion in America. The question is whether her most fundamental ones are determined by men, or any set of inalienable rights that belong to her, rather than being dished out to her at the whims of politics and the patriarchy, or the”Masculine systems” as John Adams described the power of men over women, at the founding of America.
Seriously, David. Women didn’t have the right to vote when the country was founded. Why would you think the Constitution would include a right to choose motherhood or not? Anne