The Constitution & political legitimacy
Reflections on abortion and religious beliefs
In my commentary of August 23, I maintained that the systems of people’s democracy in China and Cuba have high legitimacy among the people, and therefore political stability; in contrast to the United States and other Western imperialist powers, in which systems of representative democracy are in the midst of legitimation crises (“Chinese democracy works: Western representative democracy no longer has legitimacy,” August 23, 2022.
In previous commentaries, I have suggested that the road out of legitimation crisis in the USA would require the emergence a leftist social justice movement committed to anti-imperialism and to the protection of the socioeconomic rights of all citizens to health care, education, nutrition, and housing. A movement that at the same time embraces certain conservative values of the people, such as respect for the principles of the U.S. Constitution. Such a reconceptualization of leftist ideology through a creative theoretical and practical synthesis with conservative values would have the possibility of attaining the support of a solid majority of the people, thus making possible the restauration of direction in the nation.
In pursuit of such a reconceptualization, I had occasion to review the writings of Antonin Scalia, who was a U.S. Supreme Court Justice from 1986 to 2012 (see “Revisiting Scalia: Toward a synthesis of ideologies of the Left and Right,” January 11, 2022). In 870 opinions written over the course of thirty years, Scalia consistently defended the democratic structure created by the American Constitution. First, there is the balance of powers, or the division of the federal government into three branches (executive, legislative, and judicial), each checking the power of the others. Secondly, there is the principle of federalism, in which certain powers are granted to the federal government, and all other powers are reserved for each of the (fifty) States. Accordingly, he believed that there was a right way to forge social change, involving Constitutional Amendment, new legislation, or both. If done in the right way, even people opposed to the changes will have respect for the changes, because they were brought into reality through a process accepted as legitimate by all.
With respect to the issue of abortion, Scalia wrote that, inasmuch as the Constitution says nothing about abortion, “the States may, if they wish, permit abortion on demand. But the Constitution does not require them to do so,” and there is a long tradition of states prohibiting it. He therefore criticized the 1973 Roe v. Wade decision for mandating that the states cannot prohibit abortion. He maintained that the abortion issue should not be decided by the Supreme Court. It should be decided in the political arena, state by state.
Dobbs v. Jackson Women’s Health Organization
The June 24, 2022, Dobbs decision of the Supreme Court of the United States provides an opportunity for us to return to this issue. The Gestational Age Act was enacted by the Mississippi state legislature with consciousness that it violated Roe v. Wade. It provides that “except in a medical emergency or in the case of a severe fetal abnormality, a person shall not intentionally or knowingly perform . . . or induce an abortion of an unborn human being if the probable gestational age of the unborn human being has been determined to be greater than fifteen weeks.”
In the Dobbs decision, the Court overruled Roe, maintaining that “the Constitution does not confer a right to abortion.” The Court maintained that the regulation of abortion should be decided by the elected representatives of the people in each of the states.
The Court was scathingly critical of Roe v. Wade. It noted that the Constitution made no mention of abortion, and thirty states prohibited abortion at the time of the Roe decision. Moreover, “the right to abortion is not deeply rooted in the Nation’s history and traditions.” The Court wrote: ““Roe was egregiously wrong from the start. Its reasoning was exceptionally weak,” and the decision has “enflamed debate and deepened division.” “Roe found that the Constitution implicitly conferred a right to obtain an abortion, but it failed to ground its decision in text, history, or precedent. It relied on an erroneous historical narrative.”
The Court concluded that “it is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” The Court cites Justice Scalia: “The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.”
So the Dobbs decision is not so much a decision against the right of abortion as much as it is a decision against the judiciary’s usurpation of authority that it did not constitutionally possess. It is a decision in defense of a democratic resolution of the question in each state through reasoned discussion and voting among the elected representatives of the people serving in state legislatures. The Court envisioned the possibility that states will enact different laws on abortion in accordance with the beliefs of the people in the various states.
In a concurring opinion, Justice Cavanaugh put the matter precisely.
“On the question of abortion, the Constitution is therefore neither pro-life nor pro-choice. The Constitution is neutral and leaves the issue for the people and their elected representatives to resolve in the States or Congress. . . . Instead of adhering to the Constitution’s neutrality, the Court in Roe took sides on the issue and unilaterally decreed that abortion was legal throughout the United States up to the point of viability (about 24 weeks of pregnancy). The Court’s decision today properly returns the Court to a position of neutrality and restores the people’s authority to address the issue of abortion through the processes of democratic self-government established by the Constitution. . . . To be clear, then, the Court’s decision today does not outlaw abortion throughout the United States. On the contrary, the Court’s decision properly leaves the question of abortion for the people and their elected representatives in the democratic process.”
Kavanaugh notes that the Dobbs decision does not prevent states from allowing abortion. The right to abortion can be created, but it cannot be created by the Supreme Court. “The Constitution authorized the creation of new rights. . . . But when it comes to creating new rights, the Constitution directs the people to the various processes of democratic self-government contemplated by the Constitution—state legislation, state constitutional amendments, federal legislation, and federal constitutional amendment.”
The complex philosophical and moral issue of abortion
Abortion is a profoundly complex philosophical and moral issue. It places legitimate rights in conflict. On the one hand, there is the right of the woman to choose for herself what to do with respect to an unwanted pregnancy, which in some cases can constitute a serious aggravation of her life situation or a serious obstacle to her life plans and goals. If she can resolve the problem to her satisfaction, with the support of institutionalized and recognized services, few feel comfortable with the idea that the state should block it on moral grounds.
But the dilemma is that the resolution of the problem involves the taking of a life, variously called a “potential life” or an “unborn human being.” The exercise of the right to abortion involves the negation of the right of another living thing to life itself. Relevant to this fact, the Court observed that in enacting the Gestational Age Act, the Mississippi legislature included factual findings, which noted that the “unborn human being’s heart begins beating at 5 or 6 weeks gestational age; the “unborn human being begins to move about in the womb” at 8 weeks; “all basic physiological functions are present” at 9 weeks; and at 12 weeks, the “unborn human being has taken on the human form in all relevant respects.” The findings also noted that most abortions after 15 weeks employ “procedures which involve the use of surgical instruments to crush and tear the unborn child.”
The majority opinion in Dobbs displayed a sensitivity to the moral dilemma inherent in the issue of abortion. It proclaimed that the Supreme Court was not constitutionally authorized to rule on this complex moral question for the entire nation, and that it must be resolved in each state through reasoned discussion involving the people and their representatives, with the fifty states arriving to different resolutions in accordance with the desires of the people.
In contrast, the dissenting opinion saw the question in morally simplistic terms. The three dissenting justices (Breyer, Sotomayor, and Kagan) maintained that Roe had held that “in the first stages of pregnancy, the government could not make that choice for women. The government could not control a woman’s body or the course of a woman’s life: It could not determine what the woman’s future would be. Respecting a woman as an autonomous being, and granting her full equality, meant giving her substantial choice over this most personal and most consequential of all life decisions.” It is a question of a “constitutional right for an individual to make her own choices about intimate relationships, the family, and contraception.” The dissenting opinion maintains that “taking away the right to abortion, as the majority does today, destroys all those individual plans and expectations. In so doing, it diminishes women’s opportunities to participate fully and equally in the Nation’s political, social, and economic life.” In this decision, the Court “has wrenched this choice from women and given it to the States.” It is a question of a woman’s right to choose with respect to her own body, without interference by the state, pure and simple.
In my view, the outraged morality of the Left, simplistically reducing a philosophically complex issue, is an important factor in the limited influence of the Left. We should take a more politically mature approach. In the first place, we should affirm the legitimacy of the constitutional process and call upon the people to accept the ruling of the Court that the issue should be decided in the states, an approach that the President and Democratic Party Congressional leaders did not take, thus taking yet another step toward the delegitimation of the institutions of the nation. And secondly, we should call upon the people in the states to engage in mutually respectful dialogue and to seek common ground in the search for a practical resolution of the issue.
How can we resolve this divisive conflict?
I personally am influenced by the writings of Christian and Islamic theologians. In their view of the world, human beings are created by God, and they are endowed by their Creator with an intelligence and a capacity for reasoning that is unique among God’s creatures. They are called upon to use their God-given intelligence to seek to understand the true and the right, and they are called to seek to create a just world. They possess free will, and thus they are not compelled to live in accordance with truth and justice. But the prophets of God teach that when human beings and human societies ignore moral obligations, they do not come to a happy end.
With respect to the issue of abortion, I find persuasive the teachings of Muhammad Husain Beheshtí and Muhammad Yauád Bahonar, as expressed in a book on the Islamic worldview. They write that all living beings, including trees and flowers, go through a gradual and slow process of transformation. With respect to the human being, they write: “The cells of the human seed grow slowly and are transformed in the embryo, which develops continually until it is born. Then the recently born continues to grow until it grows old.”
It therefore makes sense to me to think of human life as beginning at conception. I understand why there are people in the streets protesting abortion and proclaiming the “right to life.”
I am not a practicing Christian or Muslim, although I occasionally attend Catholic mass, the religion in which I was raised and in which I attempted to raise my children, today grown and without religious affiliation. I today experience religion through reading, and not primarily through practice. But I appreciate that many people have a need to practice religion as a reinforcement of the fundamental values that ought to give them direction, and to practice religion as an important family activity.
Islamic theologians teach that many people reject religion because there are many religious persons who practice religion badly, in a form inconsistent with the revelations of God and the teachings of the prophets. Therefore, Marx is to be forgiven for writing that religion is the opiate of the masses. Unfortunately, many in the Western Left remain in some form influenced by this erroneous teaching of the greatest revolutionary intellectual of the nineteenth century. Many of the Western Left view religious belief and practice as an indication of a person’s lack of sophistication.
The experience of the Cuban Revolution is helpful here. In the 1960s and 1970s, the perspective of the revolution was that religious beliefs constitute a kind of primitive superstition that would gradually wither away as the people acquired revolutionary consciousness. It was not that there was repression of religious activities, as the enemies of the revolution claimed. But religious beliefs were viewed as a remnant of pre-revolutionary consciousness, so if you wanted to be selected for Party membership, you would want to keep any religious sentiments in the closet.
But the evolution of the consciousness of the people was not as the revolution initially had anticipated. Religious beliefs persisted among the people. In the 1980s, some religious leaders emerged to declare that there was no inconsistency between revolutionary consciousness and religious belief. As a result, a reconciliation between the revolution and religious institutions emerged. Today, there are persons with religious affiliations who are visible in all the institutions of the society, including the government and the Party, even though it is clearly secondary to revolutionary consciousness.
The U.S. Left should appreciate the Cuban experience on the question of religion. It should fully respect the right of Christians to create churches, religious schools, publishing houses, and internet platforms; and to actively participate in public debate on a Christian foundation, without prejudice. And to the extent that religious persons proclaim that life begins at conception and that there is a ‘right to life,” this view should be treated with respect.
However, all that being said, I do not think it is possible in our times to have a law that prohibits abortion in the early stages of pregnancy. Such a law only would lead to a widespread practice of illegal abortions. Such a law would be possible only in a social situation in which there is universal belief that abortion is morally wrong; but such is not our situation today.
Cuba has a positive experience on this issue. In Cuba, abortion is fully integrated into the public health system, but with certain restrictions. Abortions are administered without cost to the woman. In the first six weeks of the pregnancy, they are available in those polyclinics that have a family planning section. From six to eleven weeks, they are available in maternity hospitals. After eleven weeks, however, abortions cannot be obtained. For the Cuban medical establishment, abortions after eleven weeks are considered detrimental to the health of the mother. Among the people, there is a widespread belief that at twelve weeks the embryo has evolved to be a human being, so that abortion at this stage would constitute murder. In addition, in accordance with the pro-family values of Cuban socialism, minors seeking an abortion must have the support of a parent or guardian, as is the case with all medical interventions in Cuba. The Cuban experience is positive, in that these policies have the full support of the people, and they are carried out without conflict or controversy. And women (and girls) are able to obtain abortions discretely and without cost.
It seems to me that many of the features of the Cuban approach can be considered in the United States. The limit of eleven weeks is consistent with international norms; many nations have a limit of ten to twelve weeks. The availability of the procedure in medical service institutions and with full funding would enable women to obtain abortions discretely and without cost, although the excusal of health staff with moral objections might be necessary. Parental approval is also an idea worthy of consideration; perhaps no girl should be making such a decision without the advice and support of a mother, grandmother, or aunt.
Such an approach ought to be accepted by believers in the right to life, in recognition of the practical impossibility of a total restriction on abortion at the present time, and with appreciation for the restrictions that would be in place. Those in favor of a complete ban on abortion could continue to attempt to persuade others, utilizing all legitimate means of education and communication. And they could use all available resources to provide counseling to pregnant women and to make options to abortion a practical possibility. They should call upon the state and foundations to invest in structures that would expand the practicality of options to abortion.
For advocates of a woman’s right to choose, the approach would enable affordable and discrete abortions, if attended to early in the pregnancy. The prohibition on abortion in the later stages and the requirement for parental approval for minors ought to be accepted in appreciation of and respect for the beliefs of others in the society. They should appreciate that “my body, my choice” is a simplistic approach to a complex issue; that those opposed to abortion view it as the taking of a human life, and they are not in general acting with a motive of oppressing women or restricting the socioeconomic opportunities of women.
The Dobbs decision establishes a political situation in which debates on abortion will be carried out in each state, with the expectation that the laws will differ from state to state. This situation ought to be accepted by all, out of respect for the structures of federalism established by the Constitution. The only way that a single national law could be developed is through a constitutional amendment, which is an impossibility at the present time, given the divisions on the issue.
The existence of different laws in different states would not be a serious problem. A state or a local jurisdiction possibly could prevent billboard advertising for abortions in another state, but it would be a practical impossibility for a state to prevent internet advertising and travel to other states. Pro-choice organizations could provide funding for travel to states with less restrictive laws.
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