For more coverage of Dobbs v. Jackson Women’s Health, check out our special report.
Abortion is a hot topic right now, which means people are weighing in who haven’t given much thought to the reality of the abortion rights landscape in the United States.
And it shows.
So when I make the following request, please take it seriously:
Stop writing and publishing academic thought exercises couched as op-ed pieces that are divorced from reality. You’re not helping, and what’s worse, you’re evincing a willingness to barter with conservatives—who have never in the past shown a willingness to compromise—by using the bodies of women and other people capable of becoming pregnant.
You’re willing to trade away a constitutional right—and in doing so, reverse nearly 50 years of precedent—all while pretending that’s not what you’re doing. That what you’re doing is finding a moderate position to which all sides of the abortion wars can agree.
It’s all well and good to have a rousing debate about what the framers of the Constitution would have thought about abortion and whether or not we must pretend that originalism is a principled theory of constitutional interpretation rather than a way for white male landowners to maintain a stranglehold on the rights of everyone who doesn’t look like them.
These sorts of debates are best left for webinars at Ivy League universities or the pages of law review journals.
These are not debates that should play out in the pages of the New York Times or the Washington Post. When it comes to the reality of reproductive rights in the United States, these conversations cease to be academic and become callous.
Originalism demands that we adhere to whatever values a select group of white male landowners held, lo these many years ago. I’ve never understood why, in the multicultural society we live in, originalists insist that we must stick to the original meaning of the Constitution. That wasn’t the best time for many of us. Women were considered property, Native Americans were being murdered and driven off their land, and enslaved Africans were not even considered people. How could societal mores of the 18th century possibly inform the current culture wars: the war on abortion, the war on trans rights, the war on same-sex marriage, and the war on contraception?
The bottom line is this: There is a full-scale attack on substantive due process rights in this country, and people like Aaron Tang, professor of law at University of California, Davis, are not helping.
Professor Tang recently published a paper titled “The Originalist Case for an Abortion Middle Ground.” And since then he has been making the rounds—publishing op-eds in the Washington Post and the New York Times—making his case for an abortion middle ground.
Tang argues that from an originalist perspective, a 15-week ban is a compromise that both abortion foes and proponents can get behind. Why? Because at the time of this country’s founding, abortion was permissible until quickening, when a pregnant person can feel the fetus move. That happens at about 15 weeks. The Mississippi law at issue in Dobbs v. Jackson Women’s Health Organization, the case the Court will hear next month, is a 15-week ban. What a nice coincidence! According to Tang, that just might satisfy everyone! Conservatives and liberals, anti-choicers and pro-choicers, can all clasp hands and sing an ode to the 15-week ban: the Great Abortion Compromise of 2021.
Except permitting Mississippi’s 15-week ban to take effect is not a compromise. It would be undoing 48 years of precedent permitting the constitutional right to an abortion up to the point of viability. It would be a reversal of the twin towers of abortion law: Roe v. Wade and Planned Parenthood v. Casey.
And where I come from, capitulation is not a compromise.
I appreciate Tang’s paper to the extent that he painstakingly refutes a common claim by anti-choicers: that at the time the 14th Amendment was enacted in 1868, 27 of 37 states prohibited abortion at all points in pregnancy, and therefore total abortion bans are in keeping with the societal values the founders held.
I understand what Tang is trying to do. He’s making the argument from an originalist standpoint—which the conservatives on the Court purport to hold—that banning abortion at six weeks’ gestation would be anti-originalist since the drafters of the 14th Amendment would have understood abortion to be permissible until around 15 weeks. His article exposes the hypocrisy and the counterfactual nature of this oft-repeated claim, and it does so well.
But where he veers off track is when he claims that upholding a 15-week ban would be a moderate ruling that abortion opponents and foes could get behind: “In this intensely partisan moment, this moderate outcome may be just the middle ground America needs.”
Tang argues that such a ruling might restore faith in the Supreme Court: In his article in the Washington Post, Tang wondered if a “moderate ruling” that “would allow states to prohibit abortion after 15 weeks” might be “just what the court needs to restore its battered credibility.”
All of this is wrong. And frankly, as a former clerk of Sonia Sotomayor, who, as I have written, has emerged as the people’s defender on the Supreme Court bench, Tang should know better.
First, people are not as divided on abortion as anti-choicers want you to believe. In fact, if you ask the appropriate questions, it turns out most people in the United States don’t want new abortion laws and they don’t want the Supreme Court to get involved.
Second, the anti-choice movement will never be mollified by a 15-week ban. They are already gearing up for a fetal “personhood” full-court press because they are die-hard believers. I have often quipped to other abortion rights enthusiasts that we have to believe in abortion as much as they claim to believe in God. As much as I know that reproductive justice advocates would never capitulate to a 15-week human rights violation cloaked as a compromise, I’m even more certain that people like Lila Rose and Abby Johnson will never agree to anything less than full personhood for fertilized eggs.
You don’t have to take my word for it. Lila Rose said it herself in a debate with Rewire News Group Executive Editor Jessica Mason Pieklo:
There’s no reason that we should treat children at the moment of birth different than children before birth. They are still human beings. Human life starts—the science is clear when human life begins—it begins at the moment of fertilization: sperm, egg fusion. You have a unique, individual human being and they deserve legal protection, just like anybody else. That’s not just a general argument for human rights; it’s based on our own Constitution. The 14th Amendment says that all people should have equal protection under the law and that no state should deprive anyone of their right to life without due process.
Moreover, a 15-week ban won’t save the legitimacy of this Court. The Roberts Court’s credibility is battered because of its hyperpartisan nature—precisely because of rulings like the decision in Whole Woman’s Health v. Jackson in September, when the Court permitted an unconstitutional pre-viability abortion ban to remain in effect in Texas.
This is a Court that prioritizes corporations and the religious freedom of the Christian majority over all else, and now that there are six Federalist Society-captured judges on the bench, this is a Court willing to discard precedents that just don’t work for corporate interests, white property owners, and right-wing Christian evangelicals anymore.
The Roberts Court threw out precedent in Citizens United v. FEC so it could proclaim that money is speech and give big business a boon. In 2018, the Court gave big business another gift when it dismantled protections for public-sector unions in Janus v. AFSCME, the most significant collective bargaining decision in 40 years. Over the last several years, the Federalist Society Six have made it perfectly clear that precedent doesn’t really matter. Not if the Court simply got it wrong, which is what they believe about Roe.
And so the conservatives on the Roberts Court are poised to do it again—to toss out nearly 50 years of precedent in order to end the constitutional right to abortion because that’s what the Christian evangelicals who put them on the Court demand that they do.
So no, Professor Tang, this Court will not be able to restore its battered credibility by reversing Roe v. Wade and Planned Parenthood v. Casey.
And make no mistake: that is exactly what the compromise that Tang proposes will do. It will reverse two cases that millions of women and pregnant people have relied upon for nearly 50 years.
For nearly 50 years, Roe v. Wade has guaranteed the right to a pre-viability abortion with some state interference. Indeed, the fact that the Court permitted the state to have any say in the choices pregnant people make about their body was itself a compromise.
But more than anything else, there can be no compromise when it comes to abortion rights. Not just because abortion access is a human right, and we simply don’t negotiate when it comes to human rights. As RNG’s Pieklo recently pointed out on Twitter, a 15-week ban is a coward’s compromise. It allows the conservatives on the Supreme Court to outright reverse precedent while pretending that’s not what they’re doing.
Especially because this outcome is effectively overruling Roe and Casey without the dirty business of writing the opinion that actually does it.
It would be a cowards “compromise” https://t.co/kd1dFon22X
— Jessica Mason Pieklo (@Hegemommy) October 18, 2021
I understand the impetus to offer up a 15-week ban as a compromise. It’s the need to placate both sides. It’s basically a cry for civility. “Can’t we all just get along?”
No, we can’t. So please stop.
Stop offering up a 15-week ban as a compromise. You can’t “both sides” abortion. You can’t “both sides” human rights. Either a person has the fundamental human right to bodily autonomy or they don’t.
And where I come from? They do.