So, Texas has outlawed abortion and Mississippi will soon follow, as will, likely the entire Confederacy.
Great cries have gone up from pro choice folks saying that a minority of White males have thrust this outcome down the throats of American women and the Right has triumphed through trickery, through Mitch McConnell's corrupt bargain with the Evangelicals to buttress the Right flank with reliable anti abortion Supreme Court justices while they rammed through this unpopular legislation through state legislatures.
Mad Dog does not see it that way.
Defining abortion as any termination after a "heartbeat" is audible is the right of the people's representatives. Electing a President who promised to create a Supreme Court which would agree that termination of pregnancy after 6 weeks is is an expression of popular will.
It is, in a word, democracy.
Drawing a line between what we call "infanticide" and abortion has always been a matter of popular will, much as some would say it's a matter of theology to be dictated by priests or a matter of law, to be dictated by courts.
The fact is, drawing that line is exactly what Justice Blackmun did in his famous 1973 decision, which most people have never bothered to read.
Mad Dog had read it, though. Mad Dog was astonished to see Justice Blackmun progress from a history of attitudes toward abortion toward a scheme for drawing the line at fetal viability--i.e., the point at which the fetus/baby can exist outside the womb, just as Mad Dog had done in 1969, when he wrote his senior thesis in college.
At Mad Dog's college, you had to write a senior thesis before you graduated, and Mad Dog, having majored in an interdepartmental major was allowed to write his thesis outside of a single department, e.g. Biology. So he chose an ethics professor from the Department of Religious Studies as his thesis adviser and chose "The ethics of abortion."
This professor was an ordained Episcopalian priest and Mad Dog met with him at least once a week to discuss his thinking about what constitutes abortion and what constitutes infanticide.
Mad Dog began with the proposition that until the baby is delivered and draws his first breath, it's abortion to interfere. The Catholic Church, in its early days had said as much.
"Then, you have no problem with holding a scalpel in the birth canal, as the baby is hurtling down to be delivered, to see the light of day, and meeting that onrushing skull with a lethal blade?" the professor asked, blandly.
"Well, no, " Mad Dog, age 21, had replied. "That seems more like murder."
"Ah," the professor said, smiling faintly. "Then you have a problem."
Ultimately, Mad Dog looked through what others had said and what others said was the distinction between abortion and infanticide is all about line drawing and the line had been drawn all over the place by different people and different groups at different times.
Mad Dog liked the idea of drawing it at "viability" but as his professor noted, viability is a slippery margin: As medical science progressed, and as pediatric intensive care units improved, younger and younger babies could be delivered and rescued and survived. So in 1969 a baby born at 26 weeks had a chance, barely, but by 2020 who knew where that line would be? Right now, 22 weeks is likely not a viable time for most but a few can rarely survive.
Likely, today, it's closer to 24 weeks.
Blackmun drew the line around the end of the 2nd trimester, 27 weeks.
That was 1973.
Had Mad Dog gone to law school after graduating college in 1969, he might have called Justice Blackmun up to congratulate him on joining him in a "great minds think alike" moment. But Mad Dog had not gone to law school. He had gone to medical school and 2 years before the Roe opinion abortion had become for Mad Dog not an intellectual exercise, but a very different sort of reality. By the time Blackmun wrote a recapitulation of Mad Dog's Roe opinion, Mad Dog had seen abortion in the real world.
In 1971 Mad Dog was doing his first clinical rotation as a medical student on Obstetrics and he witnessed the "salting out" of a 22 week old fetus. This "fetus" or "kid" or "baby" came out the vaginal canal after a catheter had been placed through the cervix into the womb and hypertonic saline (thus the name "salting out") had been infused until the uterus started contracting and the baby expelled. The obstetrician quickly captured this creature, this semi life form, and handed off to the circulating nurse who scampered out of the delivery room into an equipment room where she placed it on a stainless steel tray. The nurse wasn't quite quick enough to elude the eye of the woman would would have been its mother, and glimpsing what the nurse held, she called out, "Oh, baby, I'm so sorry!"
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| 22 week fetus |
Mad Dog looked at the conceptus, the best name he could think to call it. It was not breathing. It never drew a breath that Mad Dog could see. But it looked fully formed, like a tiny version of a baby about the size of a hand. It wasn't really alive, but it wasn't just formless tissue. "It's dying and it's barely been born," that Dylan line strikes a cord, although, it wasn't really dying if it's never actually ben alive.
And Mad Dog thought to himself, "This feels wrong."
Mad Dog had seen a gynecologist scrape out the "products of conception" of an 8 week pregnancy and the doctor wiped his curette off on a cloth gauze pad and examined it after every few scrapes saying, "Yup, that's it." And Mad Dog could not see anything on that pad that looked remotely like a human being or like any defined structure. It looked like a few shreds of hamburger meat, not like anything living.
But that 22 week old conceptus resembled a human being.
Mad Dog asked himself at the time, had he just witnessed a murder? Certainly the nurse and the woman from whom that entity had been removed seemed remorseful. But what was that thing?
It was potential life, but not fully realized life. It did not breathe or move or look around with open eyes. But if there had been a law which said that any pregnancy that reached 22 weeks or even 20 weeks was protected, Mad Dog could have been persuaded.
So where are we now?
In Texas, it's 6 weeks.
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| Fetus 6 weeks |
Even at 8 weeks, the conceptus looks more Martian than human.
But, right-to-life would argue, what does it matter what it looks like?
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| Fetus 8 weeks |
On the other hand, the same folks who say it doesn't matter what it looks like want to show mothers ultrasound images of their 6 week old fetuses, which, like clouds in the sky, look more like babies than the actual article does. The ultrasound is image + imagination, just like clouds.
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| 8 weeks ultrasound |
Looking like a dinosaur does not make a cloud a dinosaur.
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| Not a dinosaur |
It's that old, "This is not a pipe" thing. The treachery of images.
Likely, the entire South and parts of the Mountain West will outlaw procedures to end pregnancy very early on--some states will say as soon as sperm meets egg.
Women will then leave those states and seek their abortions in "free states" in the north or on the West Coast.
The question of whether there will be some 21st century version of the Fugitive Slave Act will ensue. What if a Texas woman terminates her pregnancy in New Mexico or California? What if a woman from Mississippi flies to New York City to terminate her pregnancy?
Will these women be arrested upon return to Texas or Mississippi?
If they chose not to return can someone in Texas sue that woman in Texas and demand she be extradited to face Texas justice in her home state?
Pro choice folks argue that this is all about a woman's reproductive rights.
They argue that a woman has a right to control what happens to her own body.
But the right-to-lifers argue that is true-- until there is another person's body at stake and just because that body happens to reside inside a woman does not give that woman the sole right to decide whether it lives or dies.
The captain and owner of a steamship may have the right to sink his own ship. It's his property. But if there are people in the below decks hold, he cannot be allowed to use that ship as he sees fit, if he wants to sink it.
Texas has taken the whole debate to the extreme: It deputizes every person living in Texas as informants and gives them legal standing--informers can be rewarded with $10,000 if they get wind of a woman who has sought out and accomplished an abortion and these informers can sue a man who gives that woman a ride to a clinic in New Mexico. Texas has become a Statsi state and turned into East Germany, or Hitler's Germany, more like, with citizens giving up Anne Frank to the local Gestapo.
But that's the South. From Texas across Louisiana, Mississippi, Alabama and Florida, we expect as much. Missouri, Arkansas, South Carolina are locks to follow suit. There may be some debate in Tennessee, Kentucky and West Virginia, but they'll likely go that way.
North Carolina and Virginia might demur.
Oklahoma, Kansas, Utah are locks for outlawing abortion.
But this is, in the final analysis, the will of the people, of people speaking through their state legislatures to get what they want.
We may not agree. We may not like it up here in New Hampshire, but that's their choice.
What we have to decide is whether or how much their preference for Donald Trump, Alex Jones, Jim Jordan, Mitch McConnell and Tucker Carlson matters to us.
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