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Bye Bye Balance: Dobbs and the Erosion of Compromise

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Held: The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives.

Friday morning, in their ruling on the case of Dobbs v. Jackson Women’s Health Organization, the Supreme Court struck down the right to abortion in the U.S., limiting the freedoms of roughly 36 million people. Because a draft of the opinion, written by Justice Samuel Alito, had been leaked by an unknown source in May, the decision to remove what the Court saw as an incorrectly perceived right to abortion was unsurprising.

The arguments supporting the Supreme Court’s decision are, in my opinion, underwhelming. To decide the Dobbs v. Jackson case, the Court examined several jurisprudential points. At its core, however, was the question of whether the U.S. Constitution enshrines abortion as a right. Unfortunately, according to five of the nine justices – Thomas, Alito, Kavanaugh, Gorsuch, and Coney Barret – the answer was no.

The Supreme Court’s musings on abortion have been covered here at The Prindle Post before (Who’s Harmed by Abortion?, What If a Fetus Were a Person?, Roe v. Wade and the Meaning of a Right, Constitutional Interpretation in the Roe Reversal, to name just a recent few). I don’t want to rehash or redo what others have already said. Instead, now that we have the official decision, I want to look at one of the points highlighted by the minority Justices – Breyer, Sotomayor, and Kagan. That being the erosion of balance. Before doing so, however, a quick recap.

The 1973 ruling in Roe v. Wade sought to strike a balance between banning and allowing abortion. To do this, the Court used the three-trimester approach. In trimester one, the state couldn’t interfere with a decision to terminate a pregnancy. In trimester two, state regulation was allowed if it aimed at protecting the pregnant person’s health. This second trimester lasted until a fetus obtained the capacity for a meaningful life outside the womb – i.e., viability. Once reached, the pregnancy entered the third trimester, where the state could ban abortions, except when necessary to protect the pregnant person’s life or health.

Resting the permissibility of abortion upon viability was far from perfect, and plenty argued both before and after the judgment that a fetus’ perceived right to life didn’t override the pregnant person’s right to bodily autonomy (Judith Jarvis Thomson’s A Defense of Abortion, published two years before Roe, being one of the most famous).

Whilst neither side of the debate was entirely enthused with the ruling, the decision somewhat defused tensions regarding abortion’s legal permissibility. As Larry David noted, “A good compromise is when both parties are dissatisfied” and this is what Roe seemed to achieve.

The Supreme Court reaffirmed the decision in the 1992 case of Planned Parenthood v. Casey. Since then, it has been the law of the land. That is until June 26th, 2022, and the Dobbs ruling.

The Dobbs ruling undoes this balance between interests. By making individual states the arbiters of abortion access, the Supreme Court has eroded the delicate balance it struck in Roe and Casey between the state’s interests in protecting life and in protecting pregnant people’s bodily autonomy. The minority Justices note this in their dissenting opinion, writing:

Today’s Court, that is, does not think there is anything of constitutional significance attached to a woman’s control of her body and the path of her life. Roe and Casey thought that one-sided view misguided. In some sense, that is the difference in a nutshell between our precedents and the majority opinion. The constitutional regime we have lived in for the last 50 years recognized competing interests, and sought a balance between them. The constitutional regime we enter today erases the woman’s interest and recognizes only the State’s (or the Federal Government’s).

This reluctance to engage in compromise is arguably symptomatic of the broader polarization in the political sphere over the past several years. This is something to which, in theory, the Supreme Court should be immune as it is meant to be apolitical. Indeed, even suggesting that the Court has devolved into another partisan branch of the U.S. government generates strong reactions, such as Coney Barrett’s response to that very accusation: “This court is not comprised of a bunch of partisan hacks. Judicial philosophies are not the same as political parties.” However, this desire for apoliticality from our Justices might be too much to ask. After all, they are only human and while they may do their best to set aside their baggage when they don their robes (and I’m not convinced they do), how effectively that can happen is a matter of debate and, if recent polling is to be believed, great doubt.

This rejection of compromise is a problem because we are all of us individuals with our own ideas and opinions. Yet, our survival and ability to flourish are dependent on our capacity to rely on others and live within a society. As a result, there is a constant tension between wanting to do things our way and needing other people.

This makes compromise essential. When our interests clash with those of our neighbors, we work towards a mutually acceptable outcome in order to find balance. Neither group may get exactly what they want, but they might get something approximating it.

Of course, this can only work in circumstances where it is possible to accept compromise, which isn’t true in all cases. If I don’t want to kill anyone, and my neighbor wants to kill ten people, the answer isn’t to kill five; it’s to call the police. Abortion would seem to be one of those instances where compromise might not be on the cards, especially for those at the polar ends of the debate. Right-to-lifers might argue that no abortion, at any point, is acceptable, and to compromise is to be complicit in murder. Pro-choicers might respond that any infringement on bodily autonomy, for any reason, is a grave injustice.

In this sense, Roe and Casey’s overturning symbolizes something growingly problematic: the sense that compromise is a negative thing. That it shows weakness rather than an ability to move forward and make incremental changes towards something better. A capacity to not let the perfect get in the way of the good.

This, of course, is not the biggest issue with the Dobbs decision (that would be the mass infringement on people’s fundamental human right to bodily autonomy). However, Roe and Casey’s overturning, based on dubious legal reasoning, throws away a delicate balance between competing interests, one which may not be recreated for decades, if ever at all.

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Panic Buying and the Virtue of Compassion

black and white photograph of old and young hands touching

As the novel coronavirus, COVID-19, spreads around the globe, the prospect of more communities, cities, whole regions and countries going into lockdown is becoming a reality.

As I write this, in Australia mass gatherings are banned, travel restrictions are being introduced and a 14-day self-quarantine for anyone entering from overseas is being instituted. Yet even several weeks ago, before the mass cancellation of events and activities, one of a myriad of ‘effects’ of the epidemic in Australia has been a massive toilet paper shortage.

In many places around the country, especially the major cities, large supermarkets and grocery store shelves have been emptied. It is unclear exactly how this started; but once a view, and a concern, had formed in the community that there would be shortages of toilet paper people began to panic-buy and stockpile it. In so doing those people have created shortages which have in turn led to further panic and rushes on stocks as soon as they are replenished. This kind of panic-buying (a problem encountered also in other countries) has also affected many other grocery items and medical supplies, and concerns have been raised about whether some of the most vulnerable members of the community are missing out on essentials as panic buying and stockpiling continues. In response, as of yesterday, Australian supermarkets have now introduced purchase limits on certain items to prevent stockpiling at the expense of others.

It is often said, and often seen, that times of tragedy and trouble, bring us together, and bring out the best in us. We have witnessed many times (for example in the recent bushfire crisis in Australia) people coming together, cooperating, and helping one another in times of disaster sometimes at great personal risk.

These moments are often thought of as a kind of moral test. Though we do encounter the best of ourselves, and the best – most virtuous – moral reflection of human behaviour in such moments, the opposite can also be true.

A video which appeared on social media and then on mainstream news outlets last week of people fighting in a shopping centre over toilet paper illustrates what it can look like when people think of their struggle as competitive rather than cooperative – when people believe they must struggle against, rather than with, others.

In the video, one person has a large shopping cart piled high with packets of toilet paper and can be seen driving her cart away from an isle whose shelves are completely empty. A second person approaches, asks for one packet from the full trolley, and upon being refused, a physical fight ensues, in which two other parties promptly intervene.

The point of the example is not to show these particular people up, but to point out that this moment, and others like it not filmed and disseminated, represents the antithesis to the virtues of generosity and cooperation that are the markers of our ‘better natures’ and traits that we, as a community and a society, rely upon in times of crisis or trouble.

When we say something like “these are testing times” we mean that we may be tested in all sorts of ways – physically, emotionally, psychologically, socially, morally. Perhaps there is a sense here also of that test being able to tell us something about what we, as humans, are really like.

Many of the questions we unpack and debate in moral philosophy concern, at bottom, views about what human nature, essentially, is like: whether, for instance, we are more naturally altruistic or self-interested by nature.

It is clear even to a casual observer of the human condition there is a spectrum – of people, of actions, and contexts – between self-interest and altruism. We also know there are psychologically complex reasons for people to behave in certain ways in particular situations. It is a difficult question to answer – how separate should we should think of moral reasons as being from other sorts of reasons? Even so, the moral test presented by times of crisis and trouble is doubly significant as a test of our societal ethical values and those of our personal character.

Aristotle, in his treatise on ethics, made the cultivation of personal virtues central to the question of what constitutes an ethical life. The virtues are traits that belong to and are exercised by individuals. Importantly, they are acquired by practice in a process Aristotle called ‘habituation’ by which one learns to be virtuous by practicing virtue in a similar way to the learning of a musical instrument by playing it. He thought of the ethical life as a craft: learned and perfected through practice, rather than issuing from a set of rules.

Hoarding and scrapping, as captured on the film, is clearly not the kind of virtuous behavior that will help us to get through times of trouble and help us to emerge as a strong community. Behavior that issues from the self-interested, individualistic realms of human nature has its place in dystopian apocalyptic fiction, but such fiction foreshadows for us a possible reality.

As things currently stand, the public has been notified that essential supplies are not going to run out, therefore stockpiling toilet paper, and other grocery items, is irrational. Yet people are driven by panic and mistrust to continue to hoard. The appropriate moral response requires us to strengthen our character and that of our society against such impulsive behavior and to foster trust and listen to reason. We are rational creatures, and we are better when we use our reason – which suggests that our morality is related in important ways to our capacity for reason.

But there is something else – by which I do not mean something different from reason but something in addition to it – which we need for the moral life. Compassion. We need to cultivate, through a kind of ‘moral imagination’ the ability to see ourselves in the situation of another. We need to not make exceptions of ourselves, but to see in our own plight, that of the other. These capacities are fostered in the practical virtues of generosity and cooperation. Now is a good time to be practicing these virtues. We will need them for what lies ahead.

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The US, the UN, and Human Rights Investigations

Photo of the UN flag flying against a blue sky with white clouds

This article has a set of discussion questions tailored for classroom use. Click here to download them. To see a full list of articles with discussion questions and other resources, visit our “Educational Resources” page.

The United States has stopped cooperating with United Nations human rights investigations in the US. There are at least 13 requests for inquiry that have gone unanswered since May 7, 2018, and the only UN investigators that have operated in the US in Trump’s administration were invited by the previous administration under President Obama.

Human rights are norms that apply to all members of the community and attempt to protect our basic human dignity from abuse in the political, legal, and social spheres. These rights include freedom of expression/religion, the right to a fair trial if charged with a crime, and the right to participate in political activity.

The UN investigators organized by President Obama were looking into extreme poverty in the US. Extreme poverty violates human rights because of the suffering experienced at the time, and the purported human right to autonomously guide one’s own life. When you live in extreme poverty, often this affects your health, which limits your options in life, and also the poverty creates a situation of need that shapes the choices you make. Because you will enter choice-making scenarios, such as where to live, what jobs to pursue and accept, what food to purchase, etc., from his position of need, these choices are not autonomous but coercive. Your continued survival and baseline well-being are the deciding factor; in a real way you are not free to choose your life’s direction.

The Trump administration has implemented a number of controversial policies that have received outrage by the national population, let alone the international community. The administration has reintroduced mandatory minimum sentencing (contra right to a fair trial), has moved to rescind DACA (contra right to education and right to arbitrary detention), selectively banned immigration from Muslim-majority nations (contra freedom of religion and non-discrimination), invited an anti-LGBT+ hate group to the UN commission on the Status of Women (contra non-discrimination, equal protection under the law, and undermining the rights of LGBT+ people and women), just to name a few.

The UN has reached out regarding incidents in the US under the Trump administration only to be met with silence: “Among the formal approaches that have failed to receive a response from the US over the past several months are queries about family separation of Central Americans at the US border with Mexico, death threats against a transgender activist in Seattle and allegations of anti-gay bias in the sentencing to death of a prisoner in South Dakota.” When events like the family separations at the southern border of the US occur at the administration’s injunction, there is no further authority to regulate the practices; they are legally permissible unless some court can declare them illegal in some way. The huge bureaucratic force of the executive branch was (and is) behind a system that separated families and housed many in cages, all performed according to policy.

A major role of the United Nations is to monitor and report on the condition of respect for human rights in countries around the world. This is a crucial function because there are multiple ways that the living conditions for people can violate their human rights, even in manners systematically supported or allowed by governing systems. The UN human rights investigators serve as an external check on the effects of the policies that sovereign nations can enact.

Countries sometimes enact policies that directly violate human rights, such as the border policies in the US recently, but systemic conditions in a country can also create or reinforce conditions that violate human rights, such as the poverty being investigated by the UN before the Trump administration ceased to cooperate. Both of these routes to human rights violations are concerning, of course, but what is perhaps most troubling is that direct rights violations are being blocked from UN and international scrutiny.

For the UN to be effective in holding sovereign nations accountable, nations need to cooperate and take its authority seriously. For the US to cease to interact and respect the UN’s human rights investigations is a blow to their international authority and may have long-term effects on the effectiveness of extra-national checks on the living conditions of citizens. One advantage of having a body like the UN perform such checks is that it reduces the pressure on individual nations to perform the checks or feel individual burden to perform humanitarian interventions.  Cooperating with the UN thus has the benefit of highlighting and hopefully cooperating with international standards of human rights within one’s own country, and maintaining an international body that can serve as such a check on nations in the future as well.