In the Morgentaler Decision (1988), the Supreme Court of Canada very wisely did an end-run around the metaphysical status of the foetus and chose instead to decriminalize abortion on the grounds that variability in access violated the constitution’s equal protection clause. Ironically, Canada could, in principle at least, re-criminalize abortion by making it equally available throughout the country. Weird, yes, but a court pronouncing on a metaphysical issue would be far more weird.

By contrast, the American SCOTUS dicta on Roe v Wade (1973) was nowhere near as  circuitous and clever. American jurisprudence is an admixture of both libertarian and communitarian impulses. And so consistency in argumentation can’t conscionably be expected. The Republican legislature in otherwise-libertarian Texas doesn’t want you to have an abortion, and now the six-to-three conservative Supreme Court in Washington doesn’t want you to either. If Roe v Wade wasn’t upheld yesterday – the day the Texas law came into effect – it’s unlikely it’ll be upheld a few months from now. Texas has become Gilead, and many red state legislatures are chaffing at the bit to follow suit.

Notwithstanding my leftist credentials, I have no opinion on the abortion issue. If a plague rendered all but a half dozen women in the world infertile, there wouldn’t be an issue. Under those conditions, no, Princess, you don’t get to control your own body. So rights are contingent on the material conditions that countenance them.

Fair enough. But what about the ideological conditions that might countenance them? There’s no shortage of babies in America. So why should some bizarre metaphysical superstition be allowed to rule the day?

Because more often than not bizarre metaphysical superstitions have been backed up by guns, and guns are material if anything is. If we couldn’t protect the women of Afghanistan from Neanderthals with guns, what makes us think we can protect the women of Texas?

Too quick. Suppose Texas decided to reintroduce slavery. I’m guessing there’d be a second civil war. But the re-criminalization of abortion doesn’t seem to have the same gravitas. The difference, I suppose, is that women can leave, whereas slaves can’t. If they could they wouldn’t be slaves. So push will come to shove if but only if Texas extends its ban to women leaving the state to procure an abortion. That would begin to smack of the Republic of Gilead, and probably would move SCOTUS to act.

Covid, Afghanistan, Ida, and now this. In the meantime, there’s a federal election here in Canada in a few days. Has anyone even noticed?  

Categories: Everything You Wanted to Know About What's Going On in the World But Were Afraid to Ask, Social and Political Philosophy

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4 replies

  1. Push has already come to shove, I think, and I don’t see Union troops mobilizing to arrest the Texas State government in Austin.. My quick reading of the media descriptions of the cleverly conceived Texas law says it would allow a vigilante to collect on the bounty — an odd sort of bounty to be sure, in that it is paid by the losing defendants in a civil suit, not by the state — if he ratted out a woman who did just that: left the state of Texas in order to procure an abortion elsewhere. She and anyone who aided in her transportation would be liable for “damages” (read, “bounty”) and costs to the vigilante.

    In a previous post you constructed the hypothetical sovereign island country where all homicide is legal. Nationals of other countries who want to kill someone take a boat to that island with their soon-to-be victim secreted away in a steamer trunk, unable to escape, unbeknownst to the authorities of their countries of origin. If the only reason for visiting this island country is to kill people without threat of prosecution back home, then countries will prohibit their citizens from going there. But if there are other reasons for going there, which are convenient for the other affairs of the citizen’s country, the authorities will allow embarkation only by those citizens who are not concealing any intended murder victims in their body cavities or their luggage (instead of just checking for inbound contraband, as now.) Voilà: exit controls. You, correctly I thought, identified those as the barrier of prudence to criminalizing abortion, especially at the American State level.
    But Texas has done just that: a vigilante need only go down to the county court house and file a civil lawsuit alleging that Jane Doe had confided in a friend that she’d missed a period and the next thing we know she’s taken a couple of days off to visit her ailing aunt in Arkansas, “and that’s the first we ever heard that she had kin up that way.” Now Ms Doe will have to prove, on civil balance of probability, (not merely create reasonable doubt as for a criminal prosecution), that she did not have an induced abortion during her absence. (God help her if she miscarried…does God give receipts?) Medical records (in Texas for sure, if not in Arkansas), will be discoverable by the plaintiff and will prove she was pregnant. If she does not start to show in the next few months, she will have some ‘splainin’ to do.

    To improve efficiency, — why waste effort harassing non-pregnant women who really do have aunts in Arkansas?, — the State could require that pregnancy be listed as a mandatory “Reportable Condition” in the same way that gunshot wounds, child abuse/neglect, medical unfitness to drive, and many infectious diseases (not just contagious ones) are in Ontario. Doctors would be obligated to report all diagnoses of pregnancy, and labs all positive pregnancy tests, to a State registry. Vigilantes could trawl the registry regularly for women they know, ready to pounce if it came to appear that a blessed event was not, alas, in the offing. Just as it does now whenever Leviathan wishes it so, medical confidentiality and autonomy would have to yield to the greater good of enforcing divine doctrine, and a little extra cash that doesn’t come from taxes is always nice in these inflationary times.


    • It is my understanding – from what’s being reported on CNN, so who knows? – that the new Texas law does NOT allow anyone filing against someone who aids an abortion performed outside of Texas. Am I wrong about this?


      • OK, my quick reading didn’t catch the part where CNN says (1 Sept.), “Additionally, [i.e., in addition to the abortion clinics] the law exposes to the civil damages anyone who ‘knowingly … aids or abets’ in the performance of abortion after the heartbeat is defected [sic] , even as it excludes from liability the woman who received the abortion. [Emphasis added.] So my dystopian musings are wrong at least as far as the current Texas law goes.

        However, I don’t see where clinics operating outside Texas are shielded from suits brought in Texas. Perhaps that just goes without saying: If I fall off your deck while drunk and break my neck, I have to sue you in Alberta, where your deck is, not in Ontario, where I live. But the language does seem to put abortion referral services at risk who keep operating in Texas in order to help Texans get abortions out of state. And likewise the informal support networks that women fall back on when they don’t want to be pregnant any more. The “abetting” occurs in Texas as far as the State Line, so where the abortion occurs would seem to have little bearing on the abetting to get one. “Aiding and abetting” is a legal term. Interpretations by us laypeople should not be taken seriously.

        As a practical matter, few no-longer-pregnant women would have been sued even if not shielded.
        About two-thirds of women having abortions in Texas now are Hispanic or non-white, and most are poor. Suing people who don’t have any money is stupid. The deep pockets are the abortion providers and the professional counseling industry. The well-off relative who has a beat-up car in which to drive the pregnant woman out of state and help her with fees and travel expenses might still be worth a whack. even if his/her net worth is less than the $10,000 damages award.


      • Leslie MacMillan raises an interesting question here. A Canadian woman flies to Houston to visit relatives. Those relatives drive her back to the airport. When she gets back to Canada she has an abortion. The abortion took place outside the jurisdiction of Texas, but the aiding and abetting took place IN Texas. My reading is that the courts in Texas would reject the suit filed against her relatives. To do otherwise would be just too ridiculous. For one thing, Air Canada would have to cancel its service from Houston to Calgary.


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