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In this edition:
SCOTUS, Reasons Bans, and Dobbs
In the Harvard Law Review, Profs. Melissa Murray and Michael Stokes Paulsen recently reflected, from very different perspectives, on the judicial future of restrictions on “trait-selection abortion.” These are laws that ban or regulate abortions that are performed for a specific class of reasons: to avoid having a child of a specific race or sex or one who has received (e.g.) a fetal diagnosis for a genetic disorder.
According to the Guttmacher Institute, 18 U.S. states have passed at least one such regulation as of July 1st, 2021 (compared, for example, to 26 states that have passed at least one TRAP regulation, 16 states that have passed flat bans on abortion prior to viability, and 27 states that passed at least one regulation pertaining to ultrasounds, all according to Guttmacher).
In recent years, restrictions on trait-selection abortions, or reasons bans, have been favored by some pro-lifers who believe that more expansive bans—such as heartbeat bills—are unlikely to provide good test cases for the Supreme Court. And in 2019, the Court did hear a case involving an Indiana reasons ban, but it declined to rule on the merits of the ban given that an insufficient number of lower courts had considered the issue. (Additional lower court review of these laws now appears to be happening—and in fact there is a certiorari petition currently pending before the Court with respect to an Arkansas law prohibiting abortions performed because the fetus has been diagnosed with Down syndrome).
Though Justice Thomas joined the Court’s decision, he issued a concurring opinion in which he argued that abortion and eugenics have historically been associated with each other, that abortion is “an act rife with the potential for eugenic manipulation,” that “the constitutionality of other laws like Indiana’s thus remains an open question,” and that “the Court cannot avoid [the issues raised by reasons bans] forever.”
Thomas’ concurrence provides the jumping off point for Profs. Murray and Paulsen. In her piece, Murray argued that Justice Thomas’s concurrence lays out a logic that, if taken up, could uphold reasons bans, lead the Court to overturn Roe and Casey, and raise the bar for what counts as racial harm (such that many real racial harms would be considered not quite harmful enough to merit redress). In a response, Paulsen agrees with Murray that reasons bans could be the end of the Court’s current abortion framework, though, unlike Murray, Paulsen welcomes this possibility.
Paulsen gives two related accounts of how reasons bans could challenge current abortion law. One is more broadly moral and philosophical, the other specifically legal. The moral case is that reasons bans bring to the front the human characteristics, and therefore by extension the humanity, of the fetus. “Trait-selection abortion bans, Paulsen writes, “force fair-minded people (including judges) to confront and wrestle with the assumed ‘it’-ness of the human fetus in light of its — his or her — undeniable human characteristics. And that wrestling tends to produce a moral intuition: that the unborn human fetus is part of our common humanity.”
For its part, the legal reasoning, which echoes Justice Thomas’s concurrence, is that (a) eugenic abortions are a form of discrimination, and preventing them qua discrimination could provide a compelling state interest that overrides the right to procure an abortion and (b) the Court has not actually ruled on the specific question of whether abortions may be sought for eugenic reasons. For Paulsen, the Court could decide that “trait-specific abortions do not burden in a relevant way the right to abortion itself, but only the right to trait selection of born children through the means of abortion.” “Roe and Casey,” he writes, “protect the right to choose not to have a child — the right to be (or not to be) a parent — not the right to choose to have a child but not one of a particular race, sex, or disability.”
For Paulsen, if the Court took something like this route, distinguishing between the right to have an abortion as such and the right to be a parent of only specific kinds of children, then this logic could eventually double back on itself to undermine the general right to abortion. “If it’s wrong to kill a girl because she is a girl,” he writes, “isn’t it wrong to kill a girl for some other reason?”
One day we may have a chance to see whether this legal stratagem—sliding reasons bans past Roe and Casey by arguing they don’t touch the right to abortion as such even while intending them, in time and by force of logic, to do exactly that—could actually work at the Court, but a ban of a different kind will come before SCOTUS first, and the results of this case could dramatically reshape the context in which the Court would hear a reasons ban case. The next big abortion case before the Court is Dobbs v. Jackson Women’s Health Organization, which will be heard during the Court’s next term, with a decision expected in spring or summer of 2022.
In Dobbs, the Court will be reviewing the question of whether “all pre-viability prohibitions on elective abortions are unconstitutional,” with specific reference to a 2018 Mississippi law that would make abortions after 15 weeks illegal (with certain exceptions). Seen as the biggest abortion case since Planned Parenthood v. Casey in 1992, Dobbs will focus on the question of whether fetal viability, usually pegged at 23-24 weeks, should be used as a hard legal standard for distinguishing between abortions which the state cannot prohibit (those before viability) and those which it can (after viability). Unlike Paulsen’s legal case for reasons bans, which partly tries to “work them into” the current legal framework, Dobbs presents a much more direct challenge to Roe, which originally put forward the viability standard.
Remarkably, as David French notes, the Court decided to hear Dobbs despite the fact that there were no differing lower court decisions to judge between—a typical precondition for granting certiorari. It would, in fact, be unlikely for lower courts to disagree on a law like the Mississippi one, precisely because it so clearly violates the Court’s current abortion framework. For the Court to hear the case under those circumstances suggests that at least some of the justices are open to the possibility of a more substantial revision to current law than would be implied by the Court’s taking up a more ambiguous or edge case that lower courts differed about.
In the New York Times Leah Libresco Sargeant outlined a case for why the Court should jettison the viability standard when ruling on Dobbs, while in a podcast episode, French laid out three possibilities for the case’s outcome:
One is the Court overrules Roe and Casey. I’m saying not impossible...I’m not saying likely, but possible. If it overrules Roe and Casey, two things will happen. One, that’s gonna toss all abortion law back to the states. And number two, it’s going to create a political storm in the United States of America with unpredictable effects for the midterms, which would then have unpredictable effects for things like Court packing. If you want to hear a lot of talk about Court packing, overturn Roe.
Number two is it upholds the Mississippi restriction and then in the next months or year or two, it rejects the heartbeat bills [which prohibit abortions after a fetal heartbeat is detected, which can early as early as six weeks, in contrast the 15-week line drawn by the Mississippi law]. Well then you have a new reality where essentially the legal framework around abortion in the United States of America becomes very much like Europe. In Europe abortion is pretty freely available in the first trimester, often heavily restricted or not available after the first trimester. So American abortion law in pro-life states would start to look a lot like Europe in my prediction. I think that that might be most likely.
The third is that, surprise, surprise, the Court strikes down the Mississippi law, at which point you have a different stasis, a stasis that’s essentially the status quo. And you would have a whole different layer of fury, and that fury would come from the right after “are you freaking kidding me, we have a 6-3 Court and this is what we get.”
How this will all shake out at the Court—whether the Court will pick one of French’s three options in Dobbs, whether reasons bans come fully before the Court after being adjudicated further in lower courts—is one set of questions. How these different possibilities would play out in public opinion is another.
Though public opinion surveys, of course, depend on the precise wording of questions, and though different surveys can yield different results, some surveys suggest that bans like the one that will be considered in Dobbs are a better entry point into public opinion than reasons bans. (This point is, of course, distinguishable from what kinds of bans should be legislatively foregrounded because of their intrinsic importance regardless of public opinion.)
In a 2018 Gallup survey, for example, 56% of respondents said that abortions performed because the child “would be born mentally disabled” should be allowed in the first trimester. By contrast, only 45% said that abortions in which “the woman does not want the child for any reason” should be allowed in the first trimester. People were more willing to allow first trimester abortions undertaken for one kind of eugenic reason than abortions undertaken for non-eugenic reasons.
Relatedly, a recent AP-NORC poll found that 74 percent of respondents thought a woman should be allowed to obtain a legal abortion if the child would be born with a life-threatening illness as compared to 49 percent who said that a woman who does not want to be pregnant for “any reason” should be able to obtain a legal abortion. (A “life-threatening illness” is, of course, different from a genetic disorder that it is possible to live with. However an impulse that would excuse the former could also spill over into the latter, as the Gallup survey suggests).
Historically, as well, the highly publicized case of Sherri Finkbine, who sought an abortion in the 1960s because she had unknowingly taken a substance (thalidomide) that caused fetal deformity, was a key moment in a shift towards increased liberalization of abortion laws. “Finkbine’s case,” noted historian Daniel K. Williams in his book Defenders of the Unborn, “divided the nation and accelerated the demand for liberalized abortion laws.” Granted, abortions performed for these kinds of reasons are different from abortions performed for the other kinds of eugenic reasons that might be included in a reasons ban (i.e. because the fetus is a woman or a racial minority) and thinking through public opinion on those latter cases would require additional analysis.
Though I agree with Paulsen that reasons bans should “force fair-minded people (including judges) to confront and wrestle with the assumed ‘it’-ness of the human fetus in light of its — his or her — undeniable human characteristics,” the public’s intuitions may point in a different direction.
The 2018 Gallup found something else, however. For every reason polled—including “when the woman’s life is in danger,” “when the child would be born mentally disabled,” and “for any reason,” among others—respondents were less willing for abortions to be performed for that same reason in the third trimester than in the first trimester. For example, while 56% of respondents said that first trimester abortions procured because the child would be born mentally disabled should be allowed, only 35% said third trimester abortions procured for that same reason should be allowed. While 83% said that abortions performed in the first trimester because "the woman’s life is endangered” should be legal, 75% said that abortions performed in the third trimester for that same reason should be legal.
Likewise in the AP-NORC poll, 61% of respondents said that abortion “should be legal in all or most cases” in the first trimester, while 34% said the same for the second trimester, and 19% for the third. In general it seems that it is the gestational age of the fetus, rather than the reasons that abortions are performed, that makes people uncomfortable.
When it comes to public opinion, then, starting with people’s intuitions about abortions performed later in pregnancy and working from there (as the Mississippi bill attempts to do) may be easier than starting with people’s intuitions about abortions performed for specifically eugenic reasons equally across all trimesters.
Quick Items and Links:
The other big legislative-judicial news on abortion recently is a a heartbeat bill passed in Texas. Heartbeat bills aren’t new, but this one has attempted an enforcement mechanism novel in abortion law: state officials are barred by the law itself from enforcing it, with private individuals empowered instead to sue abortion providers for violating the law (plaintiffs who won their suit would also be awarded at least $10,000, per the new law). This mechanism is widely seen as an attempt to make it difficult to block the law in Court, since state officials cannot be sued as they would normally be for their envisioned role in enforcement. Nevertheless, a lawsuit has been filled that attempts to circumvent the law’s circumvention. More on this in another edition.
“Dr. Meyer felt an acute attachment to the embryos, calling each ‘a spark of life.’ She would drive out of her way to pass by the hospital, stopping in the parking lot to sing lullabies to them while in her car. ‘We were always coming back for our embryos,’ she said. ‘That was always the plan.’” More (h/t Leah Libresco Sargeant)
Last week, the House Appropriations Committee passed a budget for the 2022 fiscal year that does not contain either the Hyde Amendment, which prohibits federal money (e.g. Medicaid) from being spent on abortions except in limited cases, or the companion Weldon Amendment, which “prohibits federal funds from going to any state or local government that discriminates against health-care entities that refuse to provide or refer patients for abortions.” Right now, with Democratic Sen. Joe Manchin having recently pledged support for Hyde (among other factors), it seems likely that this attempt to strip out Hyde will end in the Senate, but given the historic willingness of Democrats to support the amendment, it’s a sign of the times nonetheless. “In every poll,” Will Saletan summed it up in 2019, “a plurality of Americans opposes public funding of abortions. In every poll but one, that plurality is a majority.” Both pro-life and pro-choice organizations have estimated that the Hyde Amendment reduces abortions.
Charlie Camosy has a new book out this month called Losing Our Dignity: How Secularized Medicine is Undermining Fundamental Human Equality, which argues that, “as medicine (which operates at the threshold of life and death) secularized we lost the basis for saying human beings are equal: namely, our sharing a nature which reflects the image and likeness of God”
The New York Times reports on reparations for victims of forced sterilization in California: “Even after California repealed its eugenics law in 1979, it continued to sterilize women in prison, sometimes without ensuring that their consent was lawfully obtained, according to a 2014 state report that followed an exposé by the Center for Investigative Reporting.”