Elizabeth Warren is not afraid. Today, she set out a proposal to integrate Roe v. Wade’s provisions for access to abortion into federal law. She even framed her proposal this way: Congress Can Protect Choice. And she’s right. Congress can legislate on abortion; the matter can be settled through politics, rather than through a strained parsing of the Constitution by the courts. Political arguments can be made, and countered. Voters can go to the polls to support candidates who will vote for such a law, which will make any previous Supreme Court ruling irrelevant.
This is the process called politics. And America, for 46 years, has tried to keep abortion out of it. It’s encouraging to see Warren jump into the fray to bring legislative politics back to the subject — and to call the right’s bluff on taking that approach. It’s amazing it has taken this long.
Every other major democracy treats abortion this way: through the legislative branch hammering out a compromise. Ireland, an outlier, because its Constitution barred legal abortion outright, just voted overwhelmingly to amend the Constitution and legislate the right to choose. Sometimes there are nuances: In Britain, for example, on questions that can come down to a personal conscience, like this one, there is no party-line whip. But no one in Western Europe seems to believe that public debate should be irrelevant to the question.
In the United States, of course, this is currently not how things work. Voters have been largely sidelined on the question since 1973. The Supreme Court decided the issue, so there is little or no incentive for political players to hammer out any kind of compromise and every incentive to use the issue to rally the party bases, demonize ideological opponents, and enact extreme measures, knowing nothing will come of them, and no real accountability will follow.
That is the real reason we are now seeing a batch of truly extreme bills in red states outlawing it. It’s all about ginning up a Supreme Court case now that pro-lifers may have a majority, with Brett Kavanaugh ensconced. The Alabama measure, signed by the governor this week, bars legal abortion even for rape and incest cases. It threatens doctors with up to 99 years in jail for performing one. It doesn’t target women for legal punishment, as some have falsely claimed, but it’s so draconian that even Pat Robertson has demurred and Kevin McCarthy has disavowed it. On the other side of the debate, in contrast, New York state’s legislature just passed a strikingly permissive abortion law, and any attempts by some to limit abortion in any way is regularly deemed part of a “war on women.” If it is, over a third of American women want to wage war against themselves. (Pew finds no gender gap on the subject and puts the percentage of women wanting abortion to be illegal in most/all circumstances at 36 percent and men at 37 percent. Gallup finds only a trivial gender gap as well.)
There are occasions when courage and foresight by the courts are needed to nudge or even to push a burgeoning moral consensus. In due course, popular opinion catches up, and judicial activism seems in retrospect like judicial duty. Brown v. Board of Education is the classic example; Loving v. Virginia and even Obergefell v. Hodges fall into the same category, protecting interracial and homosexual marriage. As the Court led on these issues, public opinion tended to follow. State-enforced racial discrimination in education split the country in 1954: 55 percent supported Brown, 40 percent opposed (now, support is overwhelming). In 1967, a shade less than 20 percent of Americans agreed with Loving v. Virginia, but support for interracial wedlock grew to over 40 percent within 20 years and to 87 percent by 2013. In 1996, when the Defense of Marriage Act was signed by Bill Clinton, 27 percent backed gay marriage; by 2015, when the court decided its constitutionality, 58 percent did.
But abortion? Roe was decided in 1973. Unlike many other progressive Court decisions, this one didn’t budge public opinion. In 1975, two years after Roe, some 22 percent favored a total ban on abortion in a Gallup poll; today that number is … 18 percent. Back then, 54 percent favored a middle ground: keeping the procedure legal under restricted circumstances. Now it’s 50 percent. Twenty-one percent believed in 1975 that abortion should be legal in every circumstance; today that number is 29 percent.
So yes, there has been some change, with a small shift toward public support for abortion rights.
But what’s striking is how deadlocked the debate still is. Why is this? Some argue that it proves the resilience of misogyny and structural sexism, which treats the bodies of women as disposable and controllable. But it’s hard to see why that kind of structural oppression argument does not apply to race or sexual orientation, where opinion has changed quite dramatically. It seems to me that the deadlock exists in part because abortion deals with what many believe is the taking of human life — an exponentially graver issue than, say, gay marriage; and in part because Roe, rather than anticipating and accelerating a shifting national consensus, actually prevented one from forming.
I can see why the court acted, although I think it made a big mistake. Abortion involves two fundamental and, in this case, directly conflicting American commitments: to life and liberty. We hold this truth to be self-evident: that life matters. We should affirm it always. And I have yet to read a single argument that clearly delineates with any objective authority when a human life, once initiated, becomes a human person. It’s an invisible line that is devilishly hard to draw. So although I have no doubt that a fertilized zygote is human life, I just can’t see that life the way I see a toddler or someone in their 80s. But I can grasp its basic humanness. To deny this reality seems to me to miss one key aspect of the debate.
At the same time, this is about the mother’s body. And in our ownership of our physical body lies our inviolability under the Constitution. We all have a natural right to our own bodies — and if we do not, then we have no natural right to anything, and America’s promise is a lie. The integrity of women’s bodies is therefore a core principle, inferentially buried in the Constitution. The right to life, in this case, is literally, physically, inside the bounds of liberty, i.e. within a woman’s body.
That’s my belief, after a lifetime of trying to think about this subject. And this is a particularly agonizing conclusion because the bodies involved are those of only half of humanity, women. This is not dispositive, but it behooves men to defer at least in part to the convictions of women who are in this predicament, or could be. For a gay man like me, this is doubly true. A certain humility is due.
So I favor legal abortion in the classic but now unfashionable formulation: safe, legal, rare. And I favor sensible measures to regulate it as the pregnancy progresses, and, with the exception of late-term emergencies, I favor tightening restrictions as the unborn child develops. Most Western countries have reached this point for quite some time. (Germany requires those seeking an abortion in the first trimester to have a three-day waiting period and counseling, and bans abortion after 12 weeks. Denmark bans it after 12 weeks as well.)
Based on the polling numbers cited above, there is a sizable majority in this country that could come together behind something like that kind of compromise. So why are abortion-rights activists not chafing to call the Christianist bluff and win democratically rather than relying on the tenuous protections of Roe? Yes, it would be much harder than having the matter resolved by decree by someone else — but moving the question beyond impossible hypotheticals to actual realities will surely help the pro-choice side. Alabama’s draconian law is something to seize on and dramatize. It’s far outside any national consensus, and in its rhetoric actually compares abortion (unfavorably) to genocide. Facing the legitimate possibility that it might be enacted would force Alabamans to ask themselves if they really believe this; if they really want to treat performing an abortion as a greater felony than incest or statutory rape. Do they really want the state policing doctors in this way? Do they want to force rape victims to give birth? Do they really believe that mothers should not have autonomy over their own bodies during pregnancy?
Maybe they do. But there was a reason that public opinion was moving in a pro-choice direction before Roe. The abstraction of ending abortion as a cause is far easier to support than the grim reality of enforcing an actual, tangible ban. And national legislation — or even a federalist outcome, where different states choose different options — would, in my view, highlight the government’s overreach in policing women’s bodies in the red states that would impose a restrictive regime, compared with the freedom in neighboring states. I think such a reality would move public opinion more firmly in a pro-choice position. It would certainly make the extremism of some of the anti-abortion laws crystal clear to voters. It’s astonishing to me, for example, that the Alabama law actually exempts fetuses used in IVF procedures. They don’t need to be protected, it appears. “The egg in the lab doesn’t apply. It’s not in a woman. She’s not pregnant,” explained a state senator in the debate. This is an enormous gift to pro-choicers. It really does prove that for some, this is not about human life. It’s about controlling women’s bodies. If that is revealed in a post-Roe era, the momentum will be with legal abortion.
I say this as someone deeply committed to the view that abortion is always a grave evil. I could not personally have anything to do with one. But I live in a pluralist society, I will never have to be involved in such a deeply personal decision, and I am equally dedicated to respecting the sincere convictions of my fellow citizens, and their unalienable right to sovereignty over their own bodies. If we take this issue away from a court whose decision still divides the country after 46 years, we can actually come to some compromise on it, like every other democracy. It would once again be possible to make your case, with full and immediate accountability — either for legal abortion or against it, or for a reasonable middle. Roe could be replaced by a federal law — perhaps like the one proposed today by Warren — or state laws of varying degrees of control. What we desperately need to do is take this issue out of the polarizing abstractions and into the nitty and the gritty of democratic give and take.
And whatever side you’re on, have mercy.
Pardoning War Crimes
When you observe Trump’s use of presidential pardons, you get a glimpse into what he’d do with absolute power. He’d abuse it, of course. It’s what he does. He has an unerring instinct for opportunities for total, independent authority — and he quickly saw how he could use pardons, and the promise of them. He could, for one thing, obstruct justice. The way he publicly toyed with pardoning Manafort and Cohen if they didn’t rat was instructive. Or he could simply reward loyalists and toadies: hence the latest pardon of Conrad Black, his criminal hagiographer, following the pardon of Dinesh D’Souza, a foul right-wing propagandist.
But it’s the war criminals that really showcase Trump’s character. Trump loves any kind of brute power over someone else, which is why he is so attached to the idea of torturing the helpless. He preemptively pardoned Sheriff Joe Arpaio before his sentencing for criminal contempt — a man who broke federal law for refusing to halt racial profiling and who ran a “tent city” jail which amounted to a concentration camp. In March, Trump intervened in a war crimes trial scheduled for later this month by coming to the defense of the alleged criminal, Eddie Gallagher. His tweet? “In honor of his past service to our Country, Navy Seal #EddieGallagher will soon be moved to less restrictive confinement while he awaits his day in court. Process should move quickly!” Gallagher had been turned in by his fellow Navy SEALs.
Mona Charen explains the case:
The SEALs allege that Gallagher was an out-of-control killer who shot women and old men as well as combatants. In one case, he is accused of stabbing an already severely wounded 15-year-old to death. He texted photos of the kill and then reportedly held a re-enlistment ceremony with the corpse. In another incident, a sniper said he saw Gallagher shoot a 12-year-old girl in a flower-print hijab who was walking with friends.”
These are just two of the incidents involved. The file of his abuses is growing in number. This is someone whose past service his commander-in-chief honored.
In another, murkier case, in which Major Matt Golsteyn stands accused of murdering an alleged Taliban bomb-maker, burying him in a shallow grave then disinterring and burning his body, Trump jumped in to prejudge the case: “At the request of many, I will be reviewing the case of a ‘U.S. Military hero,’ Major Matt Golsteyn, who is charged with murder. He could face the death penalty from our own government after he admitted to killing a Terrorist bombmaker while overseas.”
Then this week, Trump simply went ahead and pardoned former U.S. Army Lieutenant Michael Behenna. Behenna had lost two fellow soldiers in an IED attack in Iraq, and a suspected accomplice was captured and interrogated. With insufficient evidence to detain the suspect, Behenna was ordered to escort him home. Behenna instead took the opportunity on his journey to strip the prisoner naked, interrogate him personally, and then shoot him. He was convicted and served five years.
It may well have been a moment of complete breakdown. It may have been out of character. But it was a war crime. It was murder. Of all the countless cases of misbegotten justice, Trump chose this one out of ten pardons he has issued, and Fox News reported that he was “taking a broad look at veterans jailed for battlefield crimes and considering granting more of them similar relief.”
The one thing we know for sure about crimes like this is that war drives people to unspeakable acts, and without very firm directions against abuse of innocents from the very top, atrocities will proliferate. We now have a commander-in-chief who has long rhapsodized about the torture of human beings and is now sending a signal that abuse under his watch is not that big a deal. I know this precedent was set by the last Republican president, as we saw in the war on terror. But Trump is building on and deepening a disregard for the military rules of combat that violates two centuries of American military decency and discipline. He loves the kind of soldiers good soldiers despise. And increasingly they know it.
Yes, I have watched every episode, and yes, it’s hard to disagree with the general sentiment that this season of Game of Thrones is a bit rushed, a little formulaic, and a mite contrived. There’s a reason George R.R. Martin got writers’ block: He had sewn too many character and plot strands to tie them up into even a single ball let alone a bow. But so what? As a piece of middle-brow popular entertainment, the series soars. I will genuinely feel sad this coming Sunday night. I can’t remember the last time I felt that way about a television show (maybe when Tom Baker retired from Doctor Who).
If I had a choice of one superpower, I’d choose being able to go back in time and actually experience what the day-to-day reality was: how they spoke, what they ate, where they lived, how they smelled. And although Game of Thrones is obviously a fantasy, it is devoted to realism of a sort. It has been so credible in its texture and so ravishing in its cinematography that there were times when I really didn’t give a damn about the plot, and through the cloud of indica, couldn’t quite follow it anyway. Yes, the violence could be hard to watch. It’s still chilling to remember the transformation of Theon into Reek. And the sex could be gratuitous at times.
But the women were strong and complicated and so many of the men were breathtakingly beautiful. Not enough wieners, despite South Park’s early protest, but the camera lingered on the sexuality of men as much as women.
And then there were the values and character of the world that was created. We started with the notion of the magical and supernatural as myth, buried by centuries, and yet the myths slowly grew, like Dany’s dragons, into a fully realized universe, until the Wall fell. For me, it was also fascinating as an insight into what the Middle Ages might have been like if Christianity had never happened. Yes, there’s a weird cult in it. But the virtues of universal love and kindness, forgiveness and mercy, still exist, with difficulty, despite any real cultural support for them. They’re rare these moments of grace — which makes you more aware of and grateful for them. That scene last week when Tyrion released Jaime from his chains, and recalled how his brother was the only person he knew growing up who didn’t treat him like a monster moistened my eyes a bit. Because life is so brutal and so solitary and so cheap in this long, strategic battle for power, the unexpected occasions of empathy and compassion stand out.
My money is on Sansa. I’m not sure why. Maybe because she’s smarter than the rest; maybe because Jon Snow would be too pat a resolution (or because he irritates me); maybe because with Tyrion as her hand, some kind of beneficent regime might be possible in the ashes of King’s Landing. But I more deeply want the end to be bleak and brutal and random. I want the pursuit of power to end in meaninglessness and misery. Because, in an unsaved world, it almost always does. And the game goes on.
See you next Friday.