Saturday, January 14, 2006

A Different Roe v. Wade Parallel to Scott v. Sandford

So, as you might have guessed from my previous entry, I'm reading Peter Irons' book, A People's History of the Supreme Court. As many of you probably also know, because Bush referenced the argument during the debates in Oct. '04, lots of anti-abortion activists compare the Roe v. Wade decision to the Dred Scott decision. Their logic is simply that since 1973, foetuses are comparable to pre-1865 African-Americans, denied rights as a whole "class of people." Maybe I'd buy it, if foetuses were leading their own civil rights movement but, I think Terri Schiavo will rise from the grave before that happens. The important point about the Dred Scott/Roe v. Wade parallel on the right is that it shows how little the "right to life" movement cares about rights in general.
At least, they're not interested in the kind of rights that Dred Scott and other African-Americans were fighting for in the 19th century. Unlike adult African-Americans, and every other class of people who have ever fought for their rights, foetuses (and even babies) really are different from adult humans. A foetus can't demand freedom, and would, in fact, die, if it tried to "live free."
A baby, once born into the world can be said to have a right to be cared for, as a dependent who would die without care, but that's about the only right it has. It doesn't have the right to vote, to decide what to eat, to choose which kinds of diapers to wear, when to go to bed, or where to live, because it's not capable of making such decisions, or even articulating its wishes for these things. In fact, laws hold adults responsible for the lives of these dependents and do not hold the infants responsible for their own decisions.
The legal (and "natural") responsibilities of the parent towards a child are what makes it so important that parenthood be chosen by the parent and not forced upon him or her. After all, it's not the foetuses who are choosing to be born when women are denied these decisions, it's the state that's choosing life for these future babies. We can all say that people have a right to make their own decisions about whether or not to take on major responsibilities, and we'd all say that people must care for the helpless dependents that they've brought into the world, but I doubt that many people, if they thought about it in these terms, would really argue that a foetus has an inherent right to be born. After all, one of the first things that an angry kid will tell a parent acknowledges the child's lack of choice in the whole matter, "I didn't ASK to be born!"
Now it's easy to see how strange it is to parallel the adult Dred Scott to a foetus using the language of "rights." Since the right that Dred Scott was fighting for was not "life," but "freedom," and since children, (and not foetuses) are the only class of dependents capable of demanding rights, the logical extension of the Christian right's comparison of foetuses to Dred Scott would be to see the whole crowd become champions of children's freedom from the confines of parental authority. Unfortunately for them, this would be inconsistant with the rest of their philosophy of the family as a patriarchal hierarchy. Again, the Dred Scott parallel fails. For, the fight for civil rights did not even end with the right to be free, but continued with a demand for political equality.
For this reason, we miss the point when we criticize the right for hypocrisy when we point out their lack of interest in the welfare of born children. The most important problem with the right-wing argument about the "rights of the unborn" is that the movement implies that it is protecting one group's rights against another group's rights, when in fact, it has nothing to do with rights at all.
....So I do see a tiny parallel to the Dred Scott case to the abortion issue. Dred Scott's case involved being taken by a Southern slave-holder into a free state where slavery was illegal. Under the laws of that state, Scott sued for his freedom. Under one law he was free, having been emancipated by the move, but he eventually lost at the Supreme Court, where the court ruled he didn't even have a right to sue.
The situation of different states with different laws regarding slavery and African-American rights and the eventual resolution of this problem in a Supreme Court case does seem slightly parallel to the situation in the US with abortion today. Certain states have such intense restrictions on abortions that women are unable to get abortions where they live and must travel out of state, seeking a "free" state. In both cases there is a controversy about basic rights in the country that resulted in a patchwork of states with different laws and an attempt to resolve the contradictions in the Supreme Court. Roe V. Wade was initially the case that nationalized the right to a legal abortion, and the goal of conservatives in state legislatures, congress, and the Supreme court is to get rid of this right, until the states where women have a right to a safe abortion are the rarity. So it seems the bigger parallel would be be if Alito's dissent in Casey had been the majority opinion. Now THAT would have been a Dred Scott case.

No comments: