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Commentary & Opinion

Abortion and the Alito opinion

I remember my parents discussing, many decades ago, their perception of Catholic hospitals saving babies in preference to mothers, and Jewish hospitals as prioritizing saving the mother. I haven’t checked whether they were accurate, but the Court’s apparent position on abortion certainly does that. That’s a religious decision and it’s clearly in conflict with Jewish law, for which saving the mother is obligatory.

I don’t subscribe to the common stereotype that abortion is about patriarchy. There certainly are good legal arguments, like those made by Judge Calabresi, that prohibitions of abortion are discriminatory in fact, but that’s quite different from any intent to discriminate. I know many women who feel as strongly about abortion as any man and they are not misogynists or even conservative. Some are friends and some were my students. This is not about hostility to them – they are fine people whom we treasure. They have religious views which I respect, but don’t share, and want to dispute, contest and keep those views out of institutions which have power over those I love and care about. So, for example, I feel very strongly that it is improper for St. Peter’s Hospital to gobble up other hospitals so that it is a monopoly in many communities. Catholics and Evangelicals are themselves divided about abortion, and they and others are welcome to make their own decisions for themselves. But I want to keep official hands off the women we care about.

The Biblical injunction to “Be fruitful, and multiply” was made thousands of years ago when there were fewer people roaming the earth. But to take that injunction seriously several thousand years later one has to assume that God doesn’t change the rules as the world changes, that God hasn’t tried to teach us to update our ways of life, and that God pays no mind to the way that ancient rules have very different effects on the earth and on us now. With all due respect, I view each of those assumptions as blasphemous. What kind of a God would do that? Most people assume an all-powerful and all-knowing God. To assume that an omniscient and omnipotent God would ignore the increasing stress that population increase puts on the earth we share, ignore the catastrophe it’s already causing, and ignore the rapidity with which those harms are increasing, is to assume that God is vicious and unjust, which of course conflicts with what most of us have been taught.

Judge Calabresi, who was one of my teachers and spent ten years as Dean at the Yale Law School, pointed out that there are no generic obligations to make our bodies available to save the lives of another – no obligation to spare an unneeded kidney, bone marrow, or even blood. Women alone are handed the legal obligation to make their bodies serve the life of another under the law of some states. And the Court cares little about the right to life except the unborn. Accurately but tragically, the Court has told us that it has never decided whether it violated the Constitution to execute an innocent person. It’s just the unborn for whom the Court guarantees a right to life.

In other words there is no principle that justifies prohibitions on abortion. Courts work by principles, not by religious maxims, certainly not unless they are embodied in principles, rather than specific judgments about women. I think Roe was poorly worded and poorly explained but it was absolutely right.

Steve Gottlieb’s latest book is Unfit for Democracy: The Roberts Court and The Breakdown of American Politics. He is the Jay and Ruth Caplan Distinguished Professor Emeritus at Albany Law School, served on the New York Civil Liberties Union board, on the New York Advisory Committee to the U.S. Civil Rights Commission, and as a US Peace Corps Volunteer in Iran.

The views expressed by commentators are solely those of the authors. They do not necessarily reflect the views of this station or its management.

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