Overturning Roe-v-Wade Overturns 'The Life of Julia'.

Access to abortion in most states will not change. It will tighten up in some others. It may become very tight in a few. And it may yet expand in a few others.

On Friday, June 24, 2022, the Supreme Court of the United States, issued its 6-3 opinion in Dobbs v. Jackson Women’s Health Organization.  The opinion “overturns Roe” in two respects.  The first involves the constitutionality of access to abortion.  The second involves the practical matter of drawing lines: at what point in the term of pregnancy will the authorities preclude access to abortion?  More pointedly: The Court denies that access to abortion is a constitutionally-prescribed right.  And, on the second point: The individual states have always been in the business of regulating access to abortion, but Roe subsequently required them to guarantee access to abortion up to the point of “viability”—somewhere north of 23 weeks or about 6 months into the term of pregnancy.  Going forward, some states might bar access to somewhere south of 23 weeks.  In the Dobbs matter, the question was about whether or not the state of Mississippi (where the city of Jackson is situated) could draw the limit down to 15 weeks.

The rhetoric in the establishment press and from constitutional scholars such as the Canadian prime minister Justin Trudeau make no contact with the constitutional point and obscure the practical point.  Yesterday, for example, Reuters Graphics put out a short piece that went some way, but not nearly far enough, toward illuminating “When abortion bans go into effect.”  Reuters tosses “abortion bans” out there like a dead fish, hoping no one will bother to pick it up and examine what is really going on.

What is really going on is that Reuters applies “ban” to any restriction on abortion access.  Can’t get an abortion after 6 months?  Ban!  The reader is encouraged to interpret “ban” as an absolute ban on access.

Reuters gets its data from the Guttmacher Institute.  Guttmacher also goes out of its way to make it hard to understand what is really going on.  “26 States Are Certain or Likely to Ban Abortion,” it declares.  Not really.

Some months ago, I observed that, pre-Roe (pre-1972), the states of Alabama and Mississippi had maintained more liberal access to abortion than had the states of California and Vermont.

Abortion and Family Planning in the Dark Ages

Who knew?  It is hard not to expect that things will flip in that California and Vermont will afford more liberal access than Alabama and Mississippi post-Roe.  But it is hard not to expect that all states will afford greater access, and generally much greater access, than almost all states had afforded 50 years ago.  We will see which states, if any, impose anything we might yet call a “ban” on abortion.

That said, some important restrictions in some states are in the works.  Texas, for example, is situated to implement a ban on abortion after six weeks of pregnancy.  Given abortion may be induced chemically or hormonally more than six weeks out, it is not obvious how well Texas would be situated to police a six-week limit. Even so, it has been suggested to me that six weeks does amount to a restriction that even a person contemplating abortion could have a hard time respecting.  The practical point would be: It could take well more than a month to distinguish a late period from a pregnancy.  Six weeks might be cutting it a little thin.

But, I have a bigger question.  What is the difference between a limit of 15 weeks and 24 weeks?  Does someone who is intent on getting an abortion really need that extra nine weeks to make up her mind?

Perhaps.  Being a person endowed with XY chromosomes—being a man, a real one—I am not situated to speak to all of the complex hormonal mechanisms at work.  These things surely influence preferences and decision-making.  But, would drawing a line between 15 weeks and 24 weeks really influence the incidence of abortion?  It’s an empirical question. 

Relatedly, who really requires nine months—full term—to make up one’s mind?  One can imagine that, faced with the totality of the experience of carrying a child for nine months … that might concentrate the mind.  But, in which direction? 

Much of the rhetoric around abortion gets to this assertion (if not question) of “unwanted children”.  The assertion is that denying access to abortion amounts to producing a stream of “unwanted children.”  Such children are more likely to get swept down the “schools to prisons pipeline” …  The “pipeline” is a matter for another essay, but here let’s just pose the question: Is the matter of “unwanted children” an important phenomenon, and, the key point here, even if it is, does tinkering with the timing of abortion restrictions really influence it?  More pointedly: Weren’t these unwanted children actually wanted very badly until some time long after birth?

The “unwanted children” business amounts to a debating point.  Specifically, it amounts to the “bailey” in the “motte-and-baily” mode of debate.  Here the idea is that one may advance a general proposition (“the motte”) such as, “Overturning Roe diminishes women’s rights,” or, as Nancy Pelosi has put it, it amounts to “ripping away a woman’s right to make their [sic] own … health decision.”  But, if the proposition proves difficult to defend, then one can retreat to the bailey: something to the effect of “abortion allows women to avoid having unwanted children… and we all have a huge interest in avoiding that.”

The bit about women’s rights is expanded in “The Life of Julia,” a cartoon sequence put out by the Obama campaign in the run up to the 2012 Presidential election.  (“Life of Julia” had been scrubbed from the Internet, but some number of people have reposted it, with or without their commentaries.)  Here the idea is that, under Obama’s concept of government, a woman should be able to expect to be a ward of the state from cradle to grave.  The state will provide for Julia when she is young.  It will help her get through college... because everyone should go to college, obviously.  And, then, “Julia decides to have a child.”  The state will be there to support that, too.

The pitch was that all of the aspiring Julias out there could get through life without ever having to develop a productive relationship with a person endowed with XY chromosomes.  That is ultimate freedom from the patriarchy.  That is “women’s rights.”  Those rights include entitlement to the state funding of abortions all the way through full term.  Fifteen weeks is a slap in the face.  If you’re former California senator Barbara Boxer, the child itself might not even have “rights” until “you bring your baby home,” but Julia would have the right to dispose of it.  Puzzling.

Now, can we get these same arbiters of other people’s rights to give up on vaccine mandates and such, because “My Body, My Choice.” Right?