Scalia (Once Again) Undermines His Own Institution

Antonin Scalia would like to think that he is the lone defender of the United States Constitution, and the stalwart member of the Supreme Court. He talks (and talks) about how the "liberal" members of the Court and the promoters of a "homosexual agenda" (a phrase he actually used in an earlier dissent) are usurping the rights of the majority to pronounce homosexuality immoral.

Antonin Scalia is wrong. No one is more responsible for the disintegration of political discourse in this country than he is. His repeated ad hominem attacks on his colleagues, his insistence on emotional, irrational and irresponsible statements in dissenting opinions, he refusal to accept the necessity of stepping out of the limelight in order to maintain at least an appearance of impartiality, help undercut the very rule of law hos purports to defend.

His latest rant, after the Court struck laws that did not accept gay marriages from other states, makes hi look like a fool, and the Supreme Court like a dysfunctional group of political hacks. If he opposes gay marriage on personal religious grounds, that's his right. I think such beliefs are selfish, myopic and out of touch, but OK. If he believes that the Court reached incorrect conclusions, it's his job to dissent. But to ignore the dignity of the Court and launch a campaign against it is unprofessional and harmful.

In my opinion, he is coming quite close to impeachable offenses.

A Real Lawsuit and ... No

Since Congress prefers not to do its own job -- which consists of passing legislation designed to help govern the country -- it has decided to pursue a silly and frivolous lawsuit against President Obama for attempting to do his. This act is nothing more than inconsequential political theater, contrived because the Republican House already tried impeachment twenty years ago and it did not go well. Attacking Obamacare like this is dumb.

Another suit actually conforms to the rules for "cases in law and equity" designed by the Constitution. I don't agree with the plaintiffs, because I can't see why Obamacare is the abhorrent infringement on liberty they do. At least it's not stupid.

The Affordable Care Act is not Big Government, it's not an intrusion into anyone's life, but it is a big deal, and the courts may be one necessary venue for working it out. I do grow a little tired of the steady drum beat, though.

Once Again, the "Conservatives" of the Supreme Court Go Wild

Samuel Alito likes to call himself a conservative, as does Antonin Scalia. Once again, however, both these men jumped the rails in the majority opinion in Hobby Lobby v. Sebelius. Essentially, they announced that Congress should have chosen a different way to accomplish their goals. The corporation of Hobby Lobby, they said, had First Amendment rights to exercise religious beliefs (a novel interpretation that no true judicial conservative would endorse, even if social conservatives love it), and Congress chose a method of regulating health care that interfered too much with those rights. They did not assert that Congress had no power to legislate as they did, but they did propose an alternative way of going about it they liked better.

I don't like the decision for a number of reasons, not the least of which being that I find the claim that birth control is tantamount to abortion to be absurd. I'm especially annoyed, however, with the hypocrisy of Alito, Scalia and Thomas and the damage it is doing to our system.

Why (Most) Abortions are Not Immoral

The most compelling moral argument against abortion centers on the right of the unborn fetus  to be protected by the wider society against its mother in the case that it mother seeks to kill it.* Helpless or innocent people, especially, deserve our attention to their rights because they can not always defend themselves, so this position carries enormous weight.

This argument is at least diminished, if not negated, of course, in cases in which women were raped or molested, resulting in pregnancy.** It seems to be completely defeated in cases in which the life of the mother is at risk.

At bottom of my position is the assumption that adult women have the same right to make medical decisions about their bodies that adult men have. No one should object, that is, if a woman has her appendix removed.

So what makes a fetus different from an appendix?

It's not "humanity." The appendix has the same claim to being "human" that a fetus does -- all the DNA, all discernible objective material.

It must be that the fetus is a "person." So what makes a person?

In every decision we make in life, we must weigh priorities. Many such choices entail taking one thing more seriously than another. We cross the median line on the road in order to avoid hitting a pedestrian because we take our obligation to avoid harm to the pedestrian more seriously than our legal obligation to stay on our side of the street.

One way to "measure" personhood, though inexact, is to ask what priority we would give the life in question. Analogies are always risky, but take this one: if you were driving down the road and had to choose between colliding with a human walking across it or colliding with a chicken walking across it, you might choose the chicken. Why? Because you believe that the walking human has moral priority over the walking chicken. The human is more of a person. She has some quality or set of qualities that distinguish her from the chicken. Maybe it's because she is sentient, or has emotions, or can anticipate pain. Maybe it's just because she is more like us. All of these standards are problematic at some level, but in the end they are what we have.

Abortions require prioritization. The woman choosing an abortion must decide that the potential person in her body is less important than something else. The fetus, in almost every way, is more like the chicken than the woman herself. They both are human, but the fetus is not sentient or emotional or capable of anticipation. Furthermore, at the moment of the decision, it is attached to the woman and no less part of her body than the woman's appendix.

So the question is this: who should be allowed to set the priorities in such a case. The burden seems to be on those who want to dictate to the woman. Why should anyone be allowed to decide what medical procedures she can consider for her safety or even her comfort? Those who want to abolish abortions entirely must defend a deep and wide intrusion into the woman's life, and therefore must explain why the fetus is more of a person than the woman.

In some cases, I suppose such an argument could be made, but certainly not in all, and definitely not in a case in which the life or health of the mother is at stake. As far as I can see, therefore, allowing abortions is the moral things to do.


* I have no use whatsoever for arguments against contraception, or for the rights of the father, for example. In other contexts, those positions may have some merit, but they fall so short in the question of most abortions that they are not interesting to me in the least.
** I have even less use for the argument that a woman who was raped or molested is somehow responsible for her pregnancy. Anyone making that case loses the privilege of taking a stand on behalf of the fetus solely on the grounds of complete incoherence, if not dishonesty.

Why Abortion Ought to be Legal

Setting aside for now the very difficult question of abortion rights, to which I will return later, it should be obvious by to everyone that abortion cannot be abolished as a practical matter. Women have been ending unwanted pregnancies for as long as they have had pregnancies, and they will continue to do so. One can no more end this practice than end unprotected sex in all its forms.

As Eyal Press writes in the most recent edition of The New Yorker, the consequences of this fact are dire if the state suppresses women's access to safe abortion procedures. When skilled, respected doctors are driven from the field by violent protests or tight government restrictions, they resort to unskilled, un-respected practitioners. These people may be unscrupulous or they may just be bad at their jobs, but either way they create hazards for women -- and therefore for children and families, and therefore for all of us -- that would not exist if abortions were treated as ordinary medical treatment. More, not fewer, late-term abortions occur when governments make it difficult for women to get this help.

Stephen Brigham, the incompetent doctor profiled by Press, should not be in business. But the market exists for him because their are not enough better options.This fundamental fact ought to be the government's focus, no matter whether you approve of abortion rights or not.