Integrity & the Abortion Debate

What does the surprise leak of Justice Alito’s opinion in the highly anticipated case Dobbs ...

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What does the surprise leak of Justice Alito’s opinion in the highly anticipated case Dobbs vs. Jackson Women’s Health Organization reveal about the intellectual integrity of his legal argument? What does it perhaps reveal about the integrity of the institution of the Supreme Court itself? In the midst of all the controversy and preliminary conclusions, David and Curtis try to help us think through this complex cultural moment through the lens of integrity.

Show Notes:

–Caitlin Flanagan: “The Dishonesty of the Abortion Debate”

–Romney Discusses the State of Family Policy and the Child Tax Credit with AEI

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  1. Sara Hendren

    Thanks *so much* to both of you for this discussion—so much good analysis that I needed to hear and add to my understanding of the issues.

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    WKDawson

    I did appreciate this discussion.

    Myself, I would say that some sort of genuine policies that address the causes of abortion should have been done __before__, __before__ efforts were made to change the laws, but at least you-all showed the intellectual integrity to agree that these would be the next steps that must be done.

    I certainly don't say that conservatives should adopt exactly progressive policies. For one thing, it is a far more onerous task than merely throwing money in that direction without getting one's hands dirty. It means going to the margins and learning from those who are there, not telling them how to fix their situation. It is a very big commitment, particularly in places where drugs, crime and poverty are the way of life.

    So, surely there are things that I can imagine progressives would propose that don't fit conservatives' views on how to address these issues; though neither do they go the to the margins and ask these people what they need either, so they also have little to say, frankly. My point is that at least progressives __are thinking about and proposing ways__ to genuinely address the issues of poverty. Both conservatives and liberals are not really addressing the people who these issues really apply, so they are proposing __at__ rather than asking and proposing __to__.

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    Nate Swanson

    Building off the institutions and institutional integrity conversation in this episode, I haven't heard any discussion about an angle I've reflected on: whether it was right or appropriate for Politico to report the leaked draft opinion. Now, of course, another outlet would have ran the story or the leaker would have found another way to make the draft opinion publicly available if Politico had refused. If we're normatively concerned about maintaining the Court's credibility and its ability to deliberate while maintaining confidences, however, it seems like Politico (and the media industry in general and consumers of the news) bears some fault for adversely impacting both and, in turn, respect for and trust in the Court as an institution. If media outlets had refused to report on the leak of a draft opinion (the final version of which will be released in the coming weeks anyway), then the recent controversy wouldn't have erupted at this stage in the Court's term.

    To be clear, I'm not saying Court or other government actor should have restricted publication. Rather, prudentially, should Politico have published the leak about a draft opinion that is now three months old? Was the newsworthiness of this information worth the "destruction of trust" between the justices and staff (as SCOTUS Blog tweeted) and all the discord the leak generated?

    I'm curious what you all think!

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  4. Lynn

    David tried to support his case by referring to drug use. Not a good comparison. Prohibition demonstrates that banning an activity pushes it into the criminal realm. How much better off would we be if drug use was managed and regulated like alcohol? Out in the open instead of by the cartels, and organized crime. Much less crime and a similar amount of abuse and addiction. Treated as a medical issue instead of a criminal issue. We figured out how to approach tobacco, alcohol. Approaching abortion in this manner would be more effective and less costly.

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  5. Daniel Ritchie

    Excellent podcast, but I have to demur on Curtis's comment that "most of the commentary" (he may have specifically referred to the pro-choice side) relates to the decision itself. I mostly read "The New York Times" and listen to NPR, and I can't say that I've read or heard much of anything about Alito's actual reasoning in the case -- his historical survey of abortion laws up to the 14th Amendment, his examination of Roe's attempt to find a right to abortion in constitutional law or history; his brilliant analysis of "stare decisis" and its limits... I appreciate your links to the "Atlantic" and Romney sources. Thanks for that.

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  6. Rob Burke

    I think is worth remembering that a large percentage of Christians and members of other faiths are not in the Republican Party. Per the Pew polls they identify as Democrats or Independent. If I recall correctly, when combining independents and Democrats they are a larger group then the Christian Right.

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  7. Stephen Lu

    “There is a non-consenting person here”. Does this apply in Second Amendment cases where gun ownership is a factor in increased deaths? Does it apply to deaths from lack of shelter or nutrition (or suffering from the same?)

    Since I'm not a Constitutional lawyer I'm confused about where the non consensual loss of life figures into some decisions but not others. (Given that in my job I see a lot of non consenual loss of life, from many different causes, that society tolerates for many different reasons.)

    https://www.nejm.org/doi/full/10.1056/NEJMc2201761

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    1. Pohl

      If you are suggesting that people have a right to food, shelter, and not being killed by a gun while minding their own business, I agree. Otherwise, I’m not sure what you’re proposing.

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  8. Kim

    I really wish you would address the issue of IVF and why that is somehow different from abortion. If life begins at conception, why does it matter where the conception happened? Why aren't states moving to charge workers at fertility clinics with murder when they dispose of unused embryos? Why aren't pro-life advocates forcing women to carry every viable embryo to term? It just strikes me as wildly hypocritical to state that life begins at conception, call abortion the murder of a potential human, and not apply the same logic to IVF.

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    1. Pohl

      Yes, what to do with frozen embryos is a tough issue, debated by ethicists. As a pro-lifer, I am undecided, IF I had the power, whether I would pull the plug, as it seems liquid nitrogen is a non-obligatory and so-called “extraordinary” means, or maintain them until such time as they can be given a proper burial, as they perish from decay, or incubate them if a technology appears to do so. Embryo adoption is another controversial answer.
      But I agree that IVF is an example of an issue closely tied to abortion and not only because it usually creates “excess” embryos. It’s problematic even apart from that, but this is more open for debate and not at all settled.

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      Kmregan7

      Well, as one Republican politician put it - "the egg in the lab doesn't apply. It's not in a woman. She's not pregnant." It's only once that fertilized egg is inside of a woman that it "counts" I guess.

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        TDit

        So, we are the incubators.

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  9. Lynn

    I think David's argument in favor of Alito's opinion lacks integrity in one area from my limited legal knowledge. Those reversals of of previous rulings were to grant liberties that had been denied not to take away liberties that had been granted. That is a significant difference. I'm not sure that when evaluated against Alito's reasoning Dred Scott would be seen as a legitimate ruling. Perhaps David could explain the difference.

    Under Roe v Wade there are no issues with spontaneous abortions/ miscarriages. There is no need to prove the process is truly spontaneous. That can go away. When we were experiencing a failed pregnancy, we tried for over a week to reverse the outcome. After a second visit to the doctor with no hope, my wife entered the hospital to have the procedure preformed. Fortunately for our peace of mind she miscarried before the start of the procedure. The hospital and insurance forms listed it as a spontaneous abortion. Would it have been so if the miscarriage hadn't have occurred until after the start of the procedure?

    We got to choose the time,and place the miscarriage occurred. In a medical facility under qualified medical care. No questions asked. No need to justify and no worry about any accusations. Was it really a miscarriage? That opportunity will be lost if this goes through. Will women be denied care until the miscarriage/spontaneous abortion occurs at home. Still birth abortions already face restrictions that limit the ability of the potential parents to choose the time and place to terminate a failed pregnancy. Sometimes even forcing women to endure days of pain and suffering because the law says you have to. David's rather academic presentation seems to just pretend these issues don't exist or threaten the long term health of the woman.

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    1. Tamara Fisher

      Yes. I watched with horror as a male OK legislator debating a bill questioned why it made an exception for “ectopic pregnancies” and said something to the effect of “we shouldn’t deny this human a chance at life because it started part of its life as an ectopic pregnancy.” These state legislators don’t care about science, health, reality… they just want to be the most extreme, seen as the most “pro life” - and they won’t pay a political price for endangering women’s lives.

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    J. Eric

    Great podcast! Thanks
    Your discussions seem to always provide nuance to my views, which are broadly informed and utterly irrelevant. Can the US peacefully find a position between Peter Singer’s and masturbation is murder? I do not know, but I am enjoying the show.

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