Monday, March 25, 2013

Marriage equality at the Supremes - NOT a Roe v. Wade rerun

On Saturday, the New York Times previewed the hoopla that will accompany arguments about marriage equality in the Supreme Court this week in an article entitled "Shadow of Roe v. Wade Looms Over Ruling on Gay Marriage."

When the Supreme Court hears a pair of cases on same-sex marriage on Tuesday and Wednesday, the justices will be working in the shadow of a 40-year-old decision on another subject entirely: Roe v. Wade, the 1973 ruling that established a constitutional right to abortion.

Judges, lawyers and scholars have drawn varying lessons from that decision, with some saying that it was needlessly rash and created a culture war.

Justice Ruth Bader Ginsburg, a liberal and a champion of women’s rights, has long harbored doubts about the ruling. “It’s not that the judgment was wrong, but it moved too far, too fast,” she said last year at Columbia Law School.

The article goes on to acknowledge that there are differences in the political climate and in political discussion of same-sex marriage, even though the opponents of equality -- Roman Catholic, fundamentalist Protestant, and other traditionalist religious groups -- are very much the same forces that have tried for forty years to substitute fetal personhood for women's control of our reproduction.

The meme sent me running to Professor Kristin Luker's Abortion & the Politics of Motherhood, a 1985 study that I consider the essential history of the earlier phases of the abortion debate.

Luker sets the stage for the 1973 Roe decision by tracing the legal history of abortion in the U.S. This country only acquired laws against abortion in the late 1800s as a byproduct of the medical profession's effort to kick a variety of competitors -- homeopaths, chiropractors, midwives -- out of the business of healthcare. University trained doctors didn't really have much to offer patients until the early 1900s, but they wanted exclusive rights and used the state governments to get them.

The abortion prohibitions allowed doctors discretion to conclude that some physical or mental impediment made the procedure indicated. Abortion wasn't something people talked about; it was a dirty secret. Because doctors didn't discuss openly the criteria they used to make exceptions to the laws and accorded each other the professional courtesy of not asking, individual doctors evolved different definitions of necessity for abortions. Meanwhile women continued to attempt self-abortion (think knitting needles) and to pay dangerous quacks to enable them to escape pregnancy.

Pressure for state-by-state reform of abortion laws only evolved in the 1950s and early 60s as doctors began to understand that they had very different views of the practice. The women's movement was not really launched until the end of the 1960s by which time medical professional advocates had won liberalized abortion laws in California and New York. Doctors who believed in liberalized abortion had achieved legal cover for their activities. Only the rudiments of an activist movement in favor of women being central to the decision to give birth had come into being when the Supreme Court legalized the practice, as a right for the woman and her doctor, in 1973.

Only then did opponents of legal abortion organize themselves to try to overthrow the Court's judgement. Opponents simply had not imagined that any substantial set of people believed women should have the option to decide when to raise a child. From Luker:

The new group of people brought into active participation in the anti-abortion movement by the Supreme Court decision were predominately women with high school educations (and occasionally some·college) who were married, had children, and were not employed outside the home. They were, as the earlier pro-life activists called them, "the housewives." None of them had ever had an abortion, and only a few of them had ever had a friend who had had an abortion; the closest most of them came to actual experience in the matter was having heard rumors in high school about someone who had "gotten in trouble" and "done something" about it. Their values and life circumstances made it unlikely that they themselves would need abortions, and they were surrounded by people who shared these values. Moreover, since they were known to be devout, traditional women who valued motherhood highly, they were not likely to be on the receiving end of confidences from women who did not share these values. As one of them said, "Look, I'm a devout Catholic and people know how I stand on these kinds of things. I'm not the kind of person you would confide in if you were having an abortion. "

… One out of every three pregnancies in California might end in an induced abortion by 1971 -- but these did not include their pregnancies or those of their friends.

… We may now ask why the Supreme Court decision of 1973 provoked such a massive response from people who had tolerated (or at least lived with) what were in effect very liberal abortion laws for years. It will be recalled that reform physicians in California originally claimed that the Beilenson bill would do little more than "clarify" the legal grounds for the sort of abortions they were doing anyway and that the deletion from the bill (under threat of a veto by Governor Reagan) of a clause permitting abortion for "fetal indications" removed any explicit challenge to the belief that the embryo is a full human life. Pro-life people could believe, therefore, that the principle they cherished was still safe, that only the decision rules about how to weigh one life against another had been modified. Equally important, the new California law said that the abortion decision had to be made not by the woman involved, nor even by the woman and her doctor, but by a panel of three doctors -- in effect, by representatives of the medical community. Thus, from the pro-life point of view, abortion was still medical, still the taking of a human life, and still wrong, except in extraordinary circumstances.

The Supreme Court decision changed all that. …

Because a fraction of the population that was politically uninvolved was totally dumbstruck by evolving professional opinion as embodied in the decision, there was huge space in which an anti-abortion movement could grow. Pro-choice women were not much better organized yet either and took some time to rally themselves against their unexpected foes.

The current decision about marriage equality will come in a very different environment. We've been arguing about same-sex marriage for 20 years in the public square -- more or less since Hawaii's highest court decided for legalization in 1993 and sent their legislature scurrying to stop it. We've fought elections over marriage equality for years, first losing, then winning in the ultimate court of public opinion. Progressive religious denominations have affirmed marriage bonds between LGBT couples. Opinion polls show 58 percent of us now support the novelty.

What this means is that there is no currently silent constituency that will be awakened by a pro-marriage equality decision. This is not like the abortion debate. It may take some years to work all the legal kinks out, but marriage equality is coming.

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