De Civitate

Letters to a Growing Catholic #1

NOTE: This post was originally published at my Substack. The footnote links go there instead of to the bottom of the page.

My beloved daughter,

As you mature from a girl into a woman, you will naturally start to ask new questions about things that you have always believed. You will discover the answers to most of these by yourself, although I hope that your mother and I always be patient and eager to help. Many of your questions will be about small things, like how to be a good party host or why the economy sometimes has recessions or what in the world a boutonniere is. You will also have some big questions: Who am I? Why am I here? Where am I going? What does it mean to do good and avoid evil? We have given you answers to these questions from Jesus and the Catholic Church, but you will start to ask whether our answers are correct.

After all, when you look around the world, you see many people who believe many different things. We are Catholics, but some people are Jewish, some Islamic, some Hindi. There are a thousand flavors of Protestant Christianity, of course. The other Catholic Church, the Eastern Orthodox, dwarfs Judaism and every single Protestant sect. Materialist atheists, who believe that there is no God, no Heaven, and nothing in the cosmos except matter, make up a sizable and growing chunk of the U.S. population. All these religions (and several others) (although not as many as you might think) have different answers to those big questions: Who are we? Why are we here? Where are we going? What does it mean to do good and avoid evil?

So how can you know that your answers are right and their answers aren’t?

However, you are unlikely to encounter many actual Jews, Muslims, Hindus, or even Protestants. If anyone tries to actively evangelize you as you grow, it will most likely be a materialist atheist, and God bless them for trying to save your soul in their own funny way! But even they are fairly rare. The common religion in our country is very different. It is poisonous, not just to our Catholic religion, but to all sincere beliefs.

Let me give you an example.

A few weeks ago, when we were up at the cabin, I was floating on the lake with my book as usual, but the wind was strong and I had to give up on reading for a bit in order to keep my floaty close to the dock. I got to talking with one of our old cabin friends. (I won’t say which.) Our friend’s daughter has apparently started dating a Jew, and she is apparently doing this (among other reasons) because she thinks it will annoy her Christian mother, our friend.

Our friend sighed and shook her head at this point in her story and said, “Of course, it didn’t work.”

I, floating next to her, nodded thoughtfully, attempting to agree. “Oh, yeah, I’d take a serious Jew over the average Christian today, too.” (For reasons I’ll explain, I really do believe this. However, to you, I will add that it is still very far from the ideal.)

Our friend shook her head. “It’s not that. I told her, ‘It doesn’t matter, as long as he has faith.’ Who are we to say whether his beliefs are better or worse than ours, as long as he believes in something?” So our cabin friend doesn’t care what this young Jewish man believes. She cares only that he believes.

Our friend is a very normal American adult (and a perfectly average “Christian”). You will hear versions of this all the time, if you haven’t started hearing it already. I have seen variations on “As long as he has faith” and “Who’s to say our beliefs are better?” many times since my conversation at the cabin.

The average American considers herself a Christian, but is not a Christian. The average American follows a different religious system. Theologians and sociologists call it “indifferentism.” That is a fancy, Latin-sounding way of saying “doesn’t-matter-ism”. According to doesn’t-matter-ism:

1. no religion is better than any other,
2. all religions are equally valid paths to God or Heaven, and
3. the only important things in life are to enjoy things while still being nice to people; the rest doesn’t matter.

In doesn’t-matter-ism, it doesn’t matter what particular religious beliefs you have, because you don’t actually believe your own “beliefs.” You go to Mass or mosque or whatever simply because it’s a family tradition, or because you “get something out of it,” or because you like the people, not because you think Jesus Christ was actually the Son of God or that Muhammed was actually God’s final prophet. To you, those details don’t matter—not really.

There are Catholic doesn’t-matterists, Muslim doesn’t-matterists, and agnostic (even atheist) doesn’t-matterists. They think they belong to different religions, but they all believe exactly the same things about who we are, why we are here, where we are going, and what it means to do good and avoid evil. Specifically, they think (surprise) it doesn’t matter, because things will all work out for the best (as long as you’re nice). The differences between how they pray mean no more to them than the differences between how Italians and Mexicans make pizza. For them, religion is just there to be beautiful and make you feel happy and remind you to be nice to people.

Doesn’t-matterism is the dominant religion of American society. “It doesn’t matter, as long as he has faith.”

This is a pretty strange idea, when you think about it.

If you, someday, bring home a perfectly lovely young man who is very kind in every particular, but who believes with all his heart that the Sun revolves around the Earth (even though we know, from science, that the Earth revolves around the Sun), I would find that very weird. I might regard it as a simple eccentricity, since heliocentrism very rarely impacts your daily choices. But it would be still be weird, even if I let it go.

On the other hand, if your beau believed that the only path to a healthy life was by getting infected by a tapeworm once every few months (because “the tapeworms consume your negative ions, which prevents your heart-protective antioxidants from going out of balance”), I would be concerned, because I think tapeworms are dangerous, and his contrary beliefs could have a very big impact on your daily life. Still, I’m no doctor, so I would hear out his pro-tapeworm arguments.

My concern would escalate to alarm, however, if I mentioned my concerns to you and you replied, “Oh, Daddy, who cares what he believes about health as long as he has beliefs about health?!”

These beliefs about tapeworm-based health care are either true or false. I strongly suspect they are false, but I could be wrong. What I know for certain is that it matters whether they are are true or false. If he routinely ingests tapeworms, and you marry him and start ingesting tapeworms to “celebrate his beliefs” or to keep the peace or to set a “good example” for your tapeworm-eating kids, but his beliefs are false, then you will be sick and unhappy a lot of the time (because you’ll be full of tapeworms). You could even die! I care very much what your future boyfriends believe about health, not just whether they have beliefs about health—and pretty much everyone agrees with me! This stuff is serious!

Yet when we come to the most important questions of all—the questions that define for us how we live, how we die, and why any of it matters—many of our well-intentioned neighbors adopt a cold indifference. “It doesn’t matter, as long as he has faith!” I think our friends are just trying to be nice. By minimizing their differences, they avoid having to disagree with their friends about important beliefs, and they avoid having to worry about whether their friends are living good lives. That’s nice, right? But it is not kind. It is not honest. It is not human.

Humans (if you ask me) are made to believe true things and reject false things. The truth matters.

This is the nature of the world in which we live, which does not give two farts about whether you believe tapeworms are bad for you. Tapeworms are bad for you whether you realize it or not. Our world has many such dangers. We must learn the difference between true and false just to thrive in our dangerous world. Even babies learn real and not-real long before they learn the difference between good and evil.

Believing true things is not just a survival trait in nature; it also our nature, our human nature. Humans were designed by a good God to know and love the truth. Ultimately, He wants us to know, to love, and to serve the Truth, capital-T (which is God Himself). People who believe even the smallest falsehood (which, to be fair, is all of us) are impeded from this, our ultimate purpose. People who believe false things therefore cannot live as freely and as fully as people who believe true things. They are, in other words, unhappy.

Even if someone settles into complacency with a comforting lie (or even a dubious truth!), there is always an unsettling whisper, deep down, that reminds him: “You know better. You know this isn’t right.” It’s like the Adventure Time comic where Finn, Jake, and Ice King end up in the illusion-world created by the Lich:

You may recall (it was a long time ago) that everything in that illusion world was actually Lich-bugs, and our heroes were all being anesthetized so they could be eaten alive. Finn and Jake’s pursuit of the truth, although painful, was heroic. Our happiness, right now, today, depends on whether we are chasing the truth (wherever it might lead us), or hiding from it. The more important the questions are, the more our happiness depends on our quest for the truth. And there are no questions more important than the religious questions.

Religions themselves do not usually come out and embrace doesn’t-matterism. (A lot of mainline Protestants tried it, and now there are a lot fewer mainline Protestants.) Religions know that the truth matters. They are on fire for the truth (as they understand it); that’s what makes them religions. That’s why I find it much easier to respect and agree with a serious Orthodox Jew than a doesn’t-matterist Catholic. The Jew is playing for a different team, but at least he’s playing the same game. At least he cares about believing truth and avoiding falsehood!

Yet religious people have their own ways of hiding from uncomfortable truths, and I’m sorry to say that this includes many Catholics (although not Catholicism itself).

Many religious people are afraid they are wrong about the most important questions of their lives. Actually, let me rephrase that: every sane person is at least a little bit afraid that they are wrong about the most important questions. They want to protect themselves from that possibility.

There are good reasons for this fear. If we ever find out we are wrong about the big questions, then we have to change a great deal about our lives. If you learn that Christ did not rise from the dead, then you should stop being a Christian. That’s not my opinion; that’s Christian doctrine: “If Christ is not risen, then our preaching is in vain, and your faith also is in vain.” (1 Cor 15:14) But many of us have put down roots in our church communities, as friends and volunteers. We have set up our lives and our relationships around our beliefs. We choose our vocations based on our religion, marry people who share our religion, and raise our kids in our religion. (Everyone does all these things, even atheists and doesn’t-matterists.) So wouldn’t turning away from our religion destroy everything that is good in our lives? Wouldn’t it be better not to know? This is a reasonable fear! (I will have more to say about the usefulness of this fear in my next letter.)

There are also bad reasons to fear. Religious people, in particular, are often afraid that God will punish them severely for believing the wrong things, or even for having doubts. I have known many Catholics who think that their religious duty is to prevent their minds from even thinking thoughts that are contrary to Catholic teaching—or, at least, their understanding of Catholic teaching. (Their understanding is usually pretty bad, because they are so afraid of asking questions about it!) This aversion is not how the Catholic Church actually understands faith, doubt, or the motives of credibility, but enough people think it is that they are terrified of asking questions or (worse) getting unsatisfying answers.

If you give into these fears, hiding from your own best understanding of the truth because you fear the consequences of admitting it, you only doom yourself. Your doubts and fears will grow and grow, harder and harder to keep locked in a closet, until finally they burst out and swallow you whole. By that point, they won’t even have to fight you. By locking them away, you will have given them all the strength they need to sweep you away from everything you believe in—even if, in reality, your beliefs were true but you were just too scared of exploring them to find that out. There are many people in my prayers these days who followed just this path on their road out of the Catholic Church.

You must pursue the Truth wherever it takes you, even when it comes to the big questions of life, the universe, and everything. That is what you have been made for. I strongly and deeply believe that, followed honestly and to its conclusion, that journey will always bring you home to the Catholic Church and closer to God—yes, perhaps after some churn in the rapids—because that is where the Truth has always taken me.

We should model ourselves after the Apostles. All of them were Jews (some devout, others not) who believed normal Jewish things. Then along came Jesus, who promised to make them “fishers of men” and who had many strange sayings about the Sabbath and the Kingdom of God. Many departed, because they refused a Truth they found too strange to accept, but the Apostles, zealots for Truth, remained. “Lord, to whom else would we go? You have the words of eternal life.” (John 6:68) At first gradually, then all at once, the Apostles were not quite Jews anymore. They converted to the true faith because they were not afraid of chasing the Truth where He led, even as He led them across stormy seas and unimagined trials.

We worship a God who Is Truth itself, whose very Incarnation is the logos, the true Word. Never fear the truth, because, in fearing it, you fear Him. You can be certain that you will never be damned for following your conscience after doing your very best, to the limits of your Earthly ability, to honestly and humbly inform it. You need only fear surrendering to the gentle anesthesia of America’s ambient doesn’t-matterism. Embracing doesn’t-matterism would protect you from many conflicts, but it could not possibly be true, because these questions—who am I? why am I here? where am I going? what is good?—matter more than anything else in the world.

Love,

Dad

I am watching The Orville and copying posts from my Substack over to here. (It would be insane to leave all my posts on Substack alone, under the control of another company.) This means there are about to be a lot of posts in rapid succession.

If you are still subscribed to jamesjheaney.com via email, I thank you for your loyalty and apologize for all the sudden notifications in your inbox! I also encourage you to unsubscribe from that feed and resubscribe to the Substack, which is where all the actual new posts are posted when they’re still new.

Love James

Some Translations #3

NOTE: This post was originally published at my Substack. The footnote links go there instead of to the bottom of the page.

I am a strong believer in the rule that you should never translate a document into English without sharing your translation online. If everyone did this, then everything would already be translated.

A few months ago, Twitter directed me to a book called Theologiae Moralis, Volume III, by Bishop Francis Kenrick, the Catholic bishop of Philadelphia in 1843. This book, I gathered, contained a chapter which extensively discussed some very specific sexual dos-and-dont’s, based on Kenrick’s knowledge of the consensus of Catholic theologians of his day.

“The history of sex acts” is a matter of general interest to me, as is “Catholic sexual morality.” Plus, I’ve always suspected that 19th-century Catholic sexual teaching was a lot more complicated (for better and for worse) than pop culture believes, but it’s harder than you might think to find English-language primary sources. (In fact, this was almost exactly the topic of my first-ever De Civitate translation!) So this book went on my endless to-do list. I never had a chance to look at it… until, in a surge of curiosity and irresponsibility, I just skipped a bunch of things on my to-do list and started translating one Saturday night.

(You now have enough information to decide whether you want to keep reading this article. Translations are kinda boring and not my usual fare. I won’t be hurt if you close the tab and wait for the next blogletter. Really, I won’t. But, holy cow, De Civ has been nothing but law & abortion for months, and there’s lots more to come, so we needed a little breather, right?)

Some context

Theologiae Moralis is not an authoritative, binding teaching of the Catholic Church. It is not only not infallible; it is not even an official document issued by the Pope or a council of bishops. Its inherent magisterial value is tiny. Instead, Theologiae Moralis is valuable because it is a theological manual, coming out of the “manualist” tradition of the Early Modern period.

The manualists—who were part Scholastics, part Enlightenment rationalists—came into disrepute in the 20th Century, because the Catholic education system often used these manuals in place of primary sources. Thus, a priest-in-training might learn about Aquinas’s arguments for the existence of God (for example) not from Aquinas’s actual text, but from Fr. Bob’s 19th-century summary of Fr. Fogey’s 18th-century summary of Suarez’s explanation of Aquinas’s text, all of them written centuries after the fact, each corrupting Aquinas’s actual argument in a long game of telephone.

I am not a historian of philosophy, so I won’t say too much more about this, but one immediately notices upon opening a manualist manual that—in contrast to the medieval Scholastics, who carefully worked through every step of every dispute—the manualists were far more focused on pedagogical clarity. They tell you the answers, and, if you’re lucky, a short summary of the argument leading up to that answer. They do not faff about like those Scholastics, who didn’t just give you the argument, but also a host of potential objections to the argument!

It has been argued that this conclusory attitude leaked into the Catholic priests who were trained under this method, leading to a high-handed and overconfident clergy that was too sure it had all the answers. The manuals were discarded en masse after the Second Vatican Council (for some good reasons and some bad ones), and have largely dropped out of general awareness, except among Twitter radtrads. But if you want to know what 19th-century Catholic priests were telling their congregations, a good place to check is the manuals from which those priests were trained.

The sexy chapter of Thelogiae Moralis, Volume III is entitled “De Usu Conjugii” (a somewhat euphemistic way of saying “On Married Sex”). In this chapter, I found some things that fit with the stereotype of 19th-century Catholics (#74, for instance). On the other hand, I found some other things that defied that stereotype quite decisively (#72, for one, and #70 does both).

Bishop Kenrick, for the most part, is not expressing his own opinions. He is instead trying to accurately describe the theological consensus of his time. He is given to using long quotations from other sources. Unfortunately, I found his footnotes utterly inscrutable (my man, my bish, Your Excellency Frank: “L. vi. n. 199.” is not a citation! It’s a cipher!), so I don’t know where most of those quotations came from, but they are all from sources Bp. Kenrick considered weighty.

One thing that is critically important to remember while reading this is that, although this is a theology manual, any theology of sex depends on biological knowledge, and the biological cutting edge in 1848 was… not as well-informed as we are today. There are some ideas that modern readers will find peculiar. You know about, say, the germ theory of disease. People in 1848 did not, and that includes Catholic bishops.1 I’ll discuss these discontinuities as we approach them. Most of the moral principles expressed in this text are still held by the Catholic Church today, but some of the biological understandings were wrong, so the applications of the moral principles were wrong, and have since been updated.

Also, just to confuse you, some of the moral principles actually have been modified or re-emphasized in the 20th and 21st-century Catholic Church. Pope St. John Paul II’s “Theology of the Body” (which was itself a response to the sexual revolution) had a significant impact on how Catholicism understands its own sexual morality. While the basic conclusions and arguments remained the same (“sex must be open to and compatible with life if it is to honor human nature”), many of the details were reshaped in the wake of ToB.

Without further preface, here is my translation of Theologiae Moralis, Vol III.: De Usu Conjugii, paragraphs 66-81, with my comments liberally interspersed.

(The chapter De Usu Conjugii actually goes on all the way to paragraph 109, but it will take me months, if not years, to find time to polish up translations of the remaining paragraphs, so I’m posting what I’ve got. Also, #100-107 or so are virtually unreadable because of a bad scan in the Internet Archive.)

Credit where it’s due:

The Latin original of Theologiae Moralis is available at the Internet Archive, the greatest gift to bloggers and readers since Gutenberg.

Google Translate’s Latin translation engine has greatly improved since the last time I used it (in 2015, it was worthless), and made it possible for me to translate paragraphs in minutes that would have taken me hours working alone. Thank you to Google! However, I checked its work, word by word. Any errors that remain are therefore mine, not Google’s. I took five years of Latin, but was never fluent.

If you’re a professional theology person / cleric and don’t agree with my comments (I’m a layperson), leave a comment of your own in the comboxes! I always read ‘em. I wrote enough comments here that I feel confident there’s room for people to start arguments with them from several different directions.

If you’re a Latinist and don’t agree with my translations, ditto!

“De Usu Conjugii”

#66 – Introduction

Ignoscat lector mihi vestigia S. Alphonsi in re lubrica prementi; intellexit scilicet peritissimus hic animarum medicus impudicitiae prae caeteris animae plagis remedia adhibenda, et larvam alioquin et speciem inanem virtutis haberi. Pleraque ipsius verbis describemus, ne quid nostrum offensioni sit.

Forgive me, reader, for closely following in the footsteps of Saint Alfonso in this slippery matter; this most skilled physician of souls certainly understood that the remedies of sexual impurity must be placed ahead of other wounds of the soul, else be regarded as a mask and an inane form of virtue. We will describe most things using the very words for them, lest there be any scandal among us.

Bp. Kenrick refers here to St. Alphonsus Ligouri, who wrote another famous Catholic work on sexual morality. This paragraph is essentially an apology / trigger warning for the very frank language Bp. Kenrick is going to use in this chapter. I doubt Bp. Kenrick would relish the idea of this most delicate chapter being posted on the public Internet (had he known what the Internet was) in English, where just anyone could read it, but there’s a lot that’s valuable in this document to English speakers.

#67 – Sexual Positions

Conjugii usus, modo rationi convenienti, licitus est, nam ex ipso Conditoris instituto fit ut maris et feminse conjunctione genus propagetur humanum. ‘Situs naturalis est, ut mulier sit succuba, et vir incubus; hic enim modus aptior est effusioni seminis virilis, et receptioni in vas femineum ad prolem procreandam.

Marital sexual intercourse [lit. “the use of marriage”], in a manner suitable to reason, is licit, for it results from the very plan of the Creator Himself, so that the human race might be propagated by the union of male and female.

Good to get this out of the way to start.

The Catholic position has always been that sex is good, that bodies are good, and that anti-sex, anti-body ideologies (like gnosticism) are heretical. The Catholic Church has, over the centuries, excommunicated a lot of people who’ve argued that sex is bad.

However, for Catholics, human faculties must be used “in a manner suitable to reason,” not solely for pure pleasure. For example, the purpose of eating is nutrition. If a Catholic eats a delicious feast, then uses ipecac to vomit it all up, so that he can have the pleasure of yet another feast without the natural consequence of nutrition, that is a sin. He has closed his body to the possibility of nutrition, which is the purpose of eating, so he is not eating “in a manner suitable to reason.” (This does not apply to people with a mental illness like bulimia. This applies only to people who freely choose to vomit up their meals.) Likewise, if a Catholic deliberately ingests a poisonous substance merely for pleasure, this, too, is a sin.2

On the other hand, Catholics are allowed to have Hershey bars (in moderation), even though Hershey bars have little to no nutritional value. We eat Hershey bars for the same reason anyone else does: mainly for pleasure. The difference is that the Catholic who has eaten a Hershey bar takes no action to prevent or pervert the nutritional purpose of eating, and the Hershey bar itself, while not obviously nutritious, is also not poisonous. If the Hershey bar happens to nourish the Catholic (if only a tiny bit), great! But it is enough for the Catholic to be open to nutrition without actively pursuing nutrition.3

The Catholic approach to sex is similar. The purpose of sex is procreation.4 All sex, therefore, must be open to procreation. However, Catholic sex does not have to be always actively pursuing procreation. Catholics can (and do) have sex the same way we have Hershey bars: mainly for pleasure. With eating, we do this by having pleasurable food that we anticipate won’t bring about nutrition (but we don’t do anything to thwart nutrition). With sex, we do this by having pleasurable sex that we anticipate won’t bring about conception (for example, during the days just after ovulation, when the couple is almost certainly infertile)—but we must not do anything to actively thwart conception.

It is in this light that the remainder of Bp. Kenrick’s writing about sex positions must be understood.

“Situs autem innaturalis est si coitus aliter fiat, nempe sedendo, stando, de latere, vel praepostere more pecudum, vel si vir sit succubus, et mulier incuba. Coitum hunc, praeter situra naturalera, alii apud Sanchez 1. ix. D. XVI. n. 2, generice damnant de mortali; alii vero dicunt esse mortale ultimos duos modos, dicentes ab his ipsam naturam abhorrere.

Sed communiter dicunt alii, omnes istos modos non excedere culpam venialem. Ratio, quia ex una parte, licet adsit aliqua inordinatio, ipsa tamen non est tanta, ut pertingat ad mortale, cum solum versetur circa accidentalia copulae, ex alia parte, mutatio situs generationem non impedit, cum semen viri non recipiatur in matricem mulieris per infusionem, seu descensura, sed per attractionem, dum matrix ex se naturaliter virile semen attrahit.” Attamen “potest esse signum mortalis concupiscentiae,” uti animadvertit S. Thomas, nempe si ex bestiae affectu, vel sodomiae proveniat.

“The natural position is that the woman should be beneath and the man atop; for this method is more suited to the effusion of the male seed and to reception in the vagina [lit. “feminine vase”] for procreating offspring. However, the position is unnatural if intercourse takes place differently, namely by sitting, by standing, from the side, or doggy-style [lit. “topsy-turvy in the manner of a domesticated animal”], or if the man is below and the woman above. This [type of] coitus, contrary to nature, some (like Sanchez, at 1. ix. D. XVI. n.2), condemn generally [“generice,” which is not actually a Latin word] as mortal sin; while others say that the last two are mortal sins, saying that from these acts nature itself shrinks back in horror.

“But still others say, with one voice, that all these same positions [“modos”] do not exceed venial sin. The reason: because, on the one hand, granting that some inordinance is present, nevertheless, it is not so great that it gets as far as mortal sin, seeing as it concerns only the accidents of copulation, and on the other hand, a change of position does not impede procreation, because the man’s seed is not received into the woman’s womb by infusion [lit. “pouring-in”], or descent, but by contraction, provided that the womb from itself naturally inhales the virile semen. However, “it can be a sign of mortal concupiscence,” as St. Thomas judges, namely if it comes from bestial or sodomitic affections.

This passage expresses the diversity of opinion at the time about whether non-missionary sex positions (namely: sitting, standing, spooning, doggy, and cowgirl) were sins. Some theologians condemned all of them as mortal sins. Others condemned only the doggy and cowgirl positions as mortal sins, and the rest as venial. Still others considered all of them only venial sins. There is some suggestion here that at least some theologians thought that at least some of these were not sins at all: that’s what the odd phrasing “do not exceed venial sin” suggests, but it’s unclear to me that’s really what he meant.

Bp. Kenrick’s extended quote offers two reasons to consider these positions sinful. First, getting into these positions is an act which hinders procreation. As we discussed, Catholics don’t have to pursue procreation, but they can’t take positive action to thwart it. Second, they are “against [human] nature” because they spring from “bestial or sodomitic affections.”

The text then offers a rebuttal to the first reason. It was not clear at the time how, exactly, fertilization occurred. Was it because of gravity (“descent”), which pulled the semen down into the womb? If that were true, then, yes, cowgirl would indeed seem to act against procreation. Or was fertilization because of the depth of penetration (which is what I think he means by “infusion”) and the penis’s proximity to the uterus at ejaculation? If so, then missionary does have much to recommend it.

But the text counters that the womb seems to actively “pull in” the semen (“by contraction”), and none of these positions generally impede procreation, as long as ejaculation occurs inside the vagina. In modern times, of course, we know from biology that none of these theories are quite right, but “by contraction” is closest to the truth, and the now-established fact is that sex positions have, at most, a negligible impact on fertilization.

Besides, the text adds, even if position does lower the odds of fertilization, the question of position isn’t decisive to conception. At worst, a change of position is one of the “accidents of copulation” that can only marginally increase or decrease the chance of conception, and isn’t comparable to an active attempt to prevent conception altogether (which would thwart the substance of copulation). Whatever violation of reason there might be in lowering the odds of fertilization, mere odds-lowering can’t rise to the level of a mortal sin.

On the other hand, the text seems to accept the argument that the only reason a healthy couple would try a non-missionary position is because of “bestial or sodomitic affection.” Or wait, does it? Let’s read the next bit.

Ob causam justam absque peccato situs mutatur, nempe si vir sit obesus, gravisque annis, vel infirmus; si sit periculum abortus, vel si adstent in cubiculo alii quos vix nisi mutato situ latere possint concumbentes.

For a just cause, the position can be changed without sin, namely: if the man is fat, great in years, or infirm; if there is danger of miscarriage; or if others are present in the room while they are copulating, whom they can scarcely escape notice without changing positions.

“Danger of miscarriage” refers, I believe, to the belief that missionary-position sex during pregnancy could cause a miscarriage. More on this in #81.

The “others present in the room” clause makes sense, but is jaw-dropping nevertheless. I imagine that the context here is the one-room homes still common in the 18th and 19th centuries, where privacy was hard to come by, and kids and potentially extended family members slept in the same room (if not the same bed). Still, if there’s others in the room, it’s hard to imagine that using the spoons position is going to keep them from noticing that you’re making whoopee… but apparently the Catholic Church was willing to let spouses do what they needed to do to get their groove on, even if it meant less chance of making a baby.

It is, from my 21st-century perspective, a little disappointing that these five are the only “just causes” that occur to Bp. Kenrick. We will see later on that Bp. Kenrick also believes that the orgasm of both partners is quite important, so any change in position that tends to enhance the probability of mutual orgasm would seem to be a just cause as well. It just doesn’t seem to occur to him that some positions might be more likely than others to induce orgasm in both partners.

Furthermore, given that sex positions have negligible impact on procreation, and would only be among the “accidents of intercourse” anyway, it seems clear to me that comfort, preference, and simple experimentation are perfectly just causes for changing positions as well, as long as they are not motivated by “bestial or sodomitic affections.” In other words, having sex on all fours does not mean you are roleplaying a desire to have sex with a farm animal. You might just find that position more comfortable.

That being said, if you are roleplaying a desire to have sex with a farm animal, that is a problem, as St. Thomas warns. Indeed, if a change in position ever expresses or excites a desire to treat your spouse as something sub-human—as an object for your pleasure rather than a beloved person to gift yourself to—that would still seem to be a “bestial affection,” and must be avoided. The 19th-century Catholic Church would not have been cool with a lot of BDSM stuff. (Neither, for that matter, would today’s Catholic Church.)

Incidentally, having any exceptions to the “rule” on the “natural” sex position points against the possibility of considering any of these positions mortally sinful. If an act is, in itself, mortally sinful, Catholics believe it is never moral to directly intend that act, no matter the circumstances. Since there are circumstances where Catholics can morally use non-missionary sex positions, those sex positions, logically, cannot be mortally sinful in themselves. This seems fatal for the opinion Kenrick attributes to Sanchez.

“E converso conveniunt omnes …. quod si experientia constaret, quod mutato naturali situ nihil seminis femina retineret ob nimiam vasis laxitatem, vel humiditatem, vel propter aliquam infirmitatem naturalem, ut ait Palaus, tunc esset mortale: secus vero dicit Sanchez, si non ex situ sed ex aliquo morbo mulieris talis efiusio provenit. Si pars seminis decidat, retento quod generationi sufficiat, plures cum Sanchez dicunt non esse mortale: quia per accidens contingit ut veluti superfluum a matrice expellatur, praecipuo iine obtento. Non tenetur confessarius interrogare poenitentem situs mutati se accusantem, utrum semen fuerit effusum, quum id raro evenire dicatur. Eos vero qui coeunt stando, vel sedendo, vel muliere incuba, puto esse in majori periculo semen effundendi.”

“From the other direction, all agree… that if experience has established that, after changing the natural position, the woman retains none of the semen because of the excessive looseness of her vagina, or [because of] humidity [UPDATE: might be “shortness”], or some other natural infirmity, so says Palaus: then it would be mortal. Sanchez, however, says otherwise: if such effusion arises not from the position, but from some disease of the woman. If some of the semen falls out, while retaining what suffices for generation, many with Sanchez say that it is not mortal, because it happens by accident that just as the excess is expelled from the womb, the principal goal still being obtained. When a penitent confesses to a changed [i.e. non-missionary] position, the confessor is not bound to ask him whether the semen was discharged, since it is said that this rarely happens. However, I think that those who fuck5 standing, or sitting, or with the woman on top, are in greater danger of discharging the semen.”

This contends that you can’t have sex in a manner where you know in advance that the the vagina is not going to retain any semen. Since Catholic sex does have to be open to life, that seems fair enough, but…

I… look, I don’t want to be too hard on these celibate, continent men who presumably never had sex. Some of them may have had more first-hand experience with sex than they you’d expect (perhaps from seeing farm animals, growing up in those one-room houses discussed above, etc.), and all of them no doubt heard endless details from a wide variety of couples in the confessional. Priests knew a lot about sex, more than we often give them credit for. You’re going to see some of that later in this document! These are smart guys who understand the male and female bodies at a level that modern movies like Hysteria treatas being literally impossible for this time period.6

But I’m really not sure what to make of the idea that vaginas might be incapable of retaining semen because of “excessive looseness or humidity.” The “looseness” idea is an old wives’ tale that survives today, which has a certain common sense to it even though it’s totally wrong, but humidity? Humidity? Perhaps there’s some 19th-century scientific theory here that I’m missing. Was humidity believed to make the semen so runny it all just flowed out?

UPDATE 26 AUGUST: It was suggested to me by a friendly redditor that “humidity” might refer to vaginal or penile lubrication, which is a pretty good idea. However, looking at this again, I see that one Latin dictionary (Whitaker’s Words via the Oxford Latin Dictionary) gives an alternate definition of “humiditas -tatis” as “humility,” “lowness (of status),” or just “shortness.” That would make sense, too. Intuitively, a short vaginal canal might be less inclined to retain semen. I have no idea whether this is true, but that may have been what Bishop Kenrick meant. END UPDATE

I’m also startled by Kenrick’s apparent belief that a vagina will ordinarily retain all the ejaculate after sex. He wisely concedes that there is no mortal sin when “the excess” “falls out,” but seems unaware that, for most couples, it is physically impossible to not have a very substantial amount spill out.7

Kenrick’s quote closes with a practical point that reminds us of the practical purpose for this manual: it’s mostly been written to help priests help penitents in confession, by teaching priests what’s a sin and what isn’t (with bite-sized explanations they can give to penitents in the booth). Confessors are supposed to ask for clarification when it’s unclear whether something’s a sin, but the text cautions here that, no, you don’t have to probe this question of seminal discharge unless the penitent brings it up.

#68 – Incomplete Sex

Si conjuges incoepta copula, ex mutuo consensu cohibeant seminationem absque effusionis periculo, per se non est peccatum mortale: “illa enim penetratio vasis foeminei tunc reputatur instar tactos verendorum, qui inter conjuges permittitur, vel saltem non est mortalis, secluso periculo pollutionis : ita communiter. . . .

Dixi I. Si ambo consentiant ; nam si alter se retrahat sine alterius consensu, certe graviter peccat, ut dicunt omnes auctores praefati.

Dixi II. Per se loquendo, nam sapienter advertit Sanchez . . . id ordinarie esse mortale, quia ordinarie adest periculum ex tali retractione effundendi semen, nisi conjuges experti sint oppositum : quo casu tamen puto nullo modo posse eos excusari saltem a veniali, quicquid dicat Sanchez cum aliis.”

If married couples, by mutual consent, repress orgasm without danger of ejaculation [lit. “effusion”], it is not per se a mortal sin: “For that penetration of vaginas is then considered to be like the touch of the sexual organs, which is permitted among spouses, or at least is not mortal, so long as the danger of pollution is closed off: so I said harmoniously [i.e. with other authorities]…

FIRST, if both agree; on the other hand, if one withdraws himself [or herself] without the consent of the other, certainly he sins gravely, as all the aforesaid authors say. …

SECOND, per se it must be said, for instance Sanchez wisely notes… that it would ordinarily be mortal, because ordinarily there is a danger from such a retraction of an effusion of semen [ejaculate or possibly precum], except for certain couples for whom the opposite has been well-proved to be the case; in which case, nevertheless, I think they can by no means be excused from at least venial sins, whatever Sanchez (and others) might say.”

This discusses whether, and under what circumstances, a married couple can stop having sex after they’ve started penetration but before either spouse has had an orgasm. Answer: only if they agree and if they have a proven track record of withdrawing, mid-coitus, without causing an orgasm. (It is unclear how you can establish this proven track record, given these rules, but perhaps great self-knowledge and self-confidence are enough.)

If those conditions are met, then the incomplete sex act is no longer considered sexual intercourse, but rather it is treated like affectionate, pleasurable touches of one another’s sexual organs, “which is permitted among spouses, or at least is not mortal, so long as the danger of pollution is closed off.”

This is an interesting statement in itself. Apparently, a large part of the 19th-century Church believed that heavy petting (even if not done as foreplay) was okay between spouses, as long as there was no orgasm, and the remainder believed it was only a venial sin. I don’t know about you, but that much openness to sexual touching outside intercourse surprised me.

#69 (nice) – No Withdrawal After Wife’s Orgasm

“Si vero foemina jam seminaverit, vel sit in probabili periculo seminandi, non potest quidem vir data opera a seminatione se retrahere, sine gravi culpa, quia tunc ipse est causa, ut semen uxoris prodigatur: uti communiter dicunt S. Antoninus . . . et alii passim. Hoc tamen non erit ita intrinsece malum, ut aliquo casu permitti non possit, puta si vir desisteret a copula ob periculum mortis, vel scandali aliorum ; tunc enim licite potest se retrahere etiam cum periculo pollutionis, quia haec per accidens, et praeter intentionem eveniret, et contra non tenetur cum periculo tanti damni generationem procurare; ita communiter. . . Haec sunt certa apud omnes.”

“But if a woman has already orgasmed, or is in a probable danger of orgasming, the husband cannot withdraw from orgasming himself without grave fault, because then the very same thing is the case, as the seed of the wife is proffered: so St. Anthony and many others (passim) say in common. Nevertheless, this will not be so intrinsically evil that it cannot be permitted for any cause: for instance, if a man should desist from intercourse on account of the danger of death, or of the scandal of others; for then he can licitly withdraw himself even with the danger of pollution, because this would happen by accident and contrary to intention, and he is not bound otherwise in the face of the risk of so great an injury to bring about procreation; so is commonly said…. These things are certain among all of them [St. Anthony and the other commentators].

The verb used here for “to orgasm” literally means “to sow; to plant.” This is, firstly, very funny, and, secondly, it illustrates something important about how Bp. Kenrick and his contemporaries understood the biology of sex.

At this time, it was believed that, just as the contractions of the male orgasm released the male seed, so to the contractions of the female orgasm had to have something to do with the release of the female seed. Honestly, I sympathize. This makes so much intuitive sense that it’s still mind-blowing to me that it isn’t true. (The current biological consensus is that the female orgasm plays no direct role in conception, although further evidence could change that.8) And this was written in 1843! The human egg was first observed in 1827! Actual fertilization was not observed, even in animals, until decades later! They were doing their best with what little they had.9

This belief that the female orgasm either directly triggered or somehow encouraged ovulation meant that, if the wife climaxed during an intimate interaction (or seemed to be on the brink of climax), then the interaction was no longer simple heavy petting. It was now an official Procreative Act (“the seed of the wife is proffered”), which therefore needed to be open to life. In order to be open to life, the husband needed to do his part of procreation as well. His refusal to do so would deliberately thwart the reproductive purpose of their bedroom romp, as surely as if he’d practiced coitus interruptus. Therefore, he had to orgasm—although sufficiently serious risks (like “the scandal of others,” i.e. you hear your kids running down the hall toward your room) removed the obligation.

Given what we know today about reproduction, I think this entire paragraph must be read in a different light. Even if female orgasm does something to encourage conception (which is controversial), conception clearly does not depend on female orgasm the way it depends on male orgasm, and the effects of the female orgasm amount to a mere “accident of intercourse” like that described in #67.

Still, I like that the female orgasm was taken so seriously at the time, and that it was respected as the equal or near-equal of the male orgasm.

#70 – No Withdrawal After Husband’s Orgasm

Si vir jam seminaverit, femina retrahendo se a seminando plerisque videtur peccare lethaliter, quia juxta plures utrumque semen ad generationem requiritur: et quamvis verosimile sit semen viri sufficere, tamen non licet opinionem sequi probabilem de rei veritate, cum periculo damni alieni. “Hinc neque practice probabile puto id quod dicunt Sanchez et Sporer: nimirum posse mulierem in actu coitus animum ad alia divertere, ne concitetur ad seminationem.”

And if the man has already orgasmed [lit. “sowed”], the woman withdrawing herself from [her own oncoming] orgasm is seen by many to sin lethally, because adjoining seed of both types is required for generation [not sure of this translation]: and although it is probable [“verosimile”, not a Latin word] that the seed of the man suffices, nevertheless it is not permissible to follow a [merely] plausible opinion regarding the truth of the matter, when there is risk of harming another. [“another” = the wife’s soul, presumably.] “Hence I do not think it practically probable what Sanchez and Sporer say: that a wife in the act of intercourse can turn her spirit toward other things, lest she be aroused to orgasm.”

In other words: if, after her husband has climaxed, the wife is approaching her own orgasm, it would be a mortal sin for her to prevent the orgasm by trying to think about, say, groceries, or the tragedy of world hunger (“turning her spirit toward other things”).

The text mentions the theory (growing strong at the time) that the female orgasm was not essential to procreation but, at most, useful to procreation. (If that theory were true, it would greatly weaken both #69 and #70.) (Spoilers: It was true.) However, the text quickly dismisses this theory by saying that we must err on the side of caution and avoid acting on theories that aren’t proven. We must therefore (the text argues) continue to assume that the wife’s orgasm is essential to ovulation and therefore to procreation.

The most interesting thing about this passage to me, however, is that it exists. Wives were apparently deliberately suppressing their own orgasms, and this was widespread enough that the Bishop of Philadelphia saw a need to step in and say, “Hey, hold on, ladies: no, you actually have to have that orgasm. It’s your Christian duty.”

Also, that’s a pretty wild thing for a bishop to say, even today, even in euphemistic Latin.

Like #69, our modern understanding that female orgasm is not decisive in childbearing places this entire paragraph into question. However, I think the orgasm-positive message remains. Your bishop today would not call female orgasm suppression a mortal sin, but he would probably still question why you’re preventing your body from achieving the fullest fulfillment of marital intercourse, and whether that’s spiritually healthy.

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#71 – Sex Is Not Over After Husband’s Orgasm

Vir, juxta plures, postquam seminavit, tenetur uxorem, si ipsa non seminaverit, expectare, ut actus generandi sit integer: alii negant eum teneri: ”concedunt tamen ei posse continuare copulam, usque dum seminet femina, quia hoc pertinet ad complementum copulae uxoris.”

The husband, according to many, is bound to wait for the wife after he has orgasmed [lit. “sowed”], if she has not yet orgasmed, so that the act of procreation might be wholly completed; others deny that he is bound: “They agree, however, that he can continue the sex act until the woman orgasms, because this pertains to the fulfillment of the marital sex act for the wife.”

The basic principle described here seems to hold regardless of developments in our understanding of female orgasm, because, whether functional in procreation or not, female orgasm does “pertain to the fulfillment of the marital act.” There is, therefore, good reason to believe that the husband has a certain degree of duty to bring about his wife’s orgasm, even after he himself has already climaxed.

#72 – Wife May Masturbate During/Just Before Sex

Si vir se retrahat post seminationem suam, sed ante seminationem uxoris, poterit haec, juxta plerosque, tactibus se excitare ad seminandum, quia utriusque seminatio pertinet ad eundem actum conjugii. “Omnes autem concedunt uxoribus, qus frigidioris sunt naturae, posse tactibus se excitare ante copulam, ut seminent in congressu maritali statim habendo.”

If the husband withdraws himself after his orgasm [lit. “his sowing”], but before the wife’s orgasm, she will be able, according to many, to raise herself to orgasm by touch, because the orgasm of both belongs to the same marital act. “All, however, agree that wives, who are of a colder nature, are able to arouse themselves by touches before intercourse, so that she may be able to orgasm in the marital congress she is imminently going to have.”

In modern language, what is described here would be called “masturbation.” The wife touches herself to induce an orgasm. That’s masturbation. Jilling. Schlicking.

However, the text avoids the M-word. This is presumably because, in a theological sense, “masturbation” is a form of sexual self-stimulation that does not fulfill the procreative or unitive ends of sex. The self-stimulation contemplated in this passage is done in the context of a lifegiving, unitive act of marital sexual intercourse, and its purpose is to help make that lifegiving act of intercourse more completely fulfill its natural ends. That makes it not masturbation (except in a strictly mechanical sense).

Anyway, wives—who, according to the text, are generally “of a colder nature”—are permitted to do this both before the start of penetration and after the husband’s orgasm. I think it’s interesting that, even in 1843, even celibate bishops were well aware that (unlike men) many women could not climax from intercourse alone, and that their special circumstances needed some express accommodation that didn’t need to be made for the men.

Since we now know that people “of a colder nature” exist in both sexes, I imagine that it would be permissible for a husband to “arouse himself by touches” immediately before intercourse, if that is necessary to bring about his own timely orgasm. (He couldn’t do the “raise himself to orgasm by touch” part, though, due to the moral need for male climax to occur in the vagina in order for the act to be open to life.)

#73 – No Anal, Not Even As Foreplay

Peccat mortaliter vir copulam inchoando in vase praepostero, ut postea in vase debito eam consummet. Ita communius et verius sentiunt theologi. “Ratio quia ipse hujus modi coitus (etsi absque seminatione) est vera sodomia, quamvis non consummata, sicut ipsa copula in vase naturali mulieris alienae est vera fornicatio, licet non adsit seminatio.” Virilia perfricare circa vas praeposterum uxoris est etiam mortale: “ratio est quia saltem talis tactus non potest moraliter fieri sine affectu sodomitico.”

A man commits a mortal sin by beginning a copulation in the anus [lit. “inverted vessel”], so that he may afterwards finish the copulation in the vagina [lit. “due vessel”]. Thus think the wiser and more numerous theologians. “The reason is because this kind of coitus (even without orgasm) is truly sodomy, although incomplete, just as having such coitus in the vagina of some other woman is truly fornication, even if there is no orgasm.” To rub the penis around the wife’s anus is also mortal: “the reason is because such touching cannot be morally done without at least a sodomitic affection.”

“Sodomy” has two meanings. It can mean, narrowly, “anal sex.” It can also mean, more broadly, “oral sex, anal sex, mutual masturbation, bestiality, and everything else that isn’t penis-in-vagina intercourse between humans.” Many American state sodomy laws forbade not only homosexual sodomy, but heterosexual sodomy. Bp. Kenrick’s home state of Pennsylvania explicitly outlawed oral sex, even between married couples, in 1879.

From context, I glean that “sodomy” in this paragraph is meant in the narrow sense. In other words, this paragraph is about anal.

There are two interesting things to note here. First, Bishop Kenrick seems to acknowledge that at least some theologians think it is morally acceptable to begin intercourse anally and then switch to vaginal intercourse, even as he brushes them aside by saying that they are a foolish minority.

Second, one of the American Catholic Church’s most recent public rows about sexual morality dealt with just this question. In 2000, theologian and Theology of the Body popularizer Christopher West published Good News About Sex & Marriage. He suggested in a footnote precisely what Bp. Kenrick dismisses here: he argued that it is not “absolutely and in every case immoral” to use anal sex as foreplay. (West clearly found the idea distasteful, unhealthy, and confusing, as do I—but not inherently immoral, as long as it culminated in a sex act that was open to life.) After West made a controversial appearance on Nightline in 2009, this footnote blew up.

Speaking solely for myself, it still seems to me that West is right: anal-as-foreplay seems like a real bad idea in every circumstance I can imagine, but it isn’t sodomy per se and therefore isn’t a mortal sin per se. I don’t see how Bp. Kenrick can maintain here that sodomy in the context of an overall procreative sex act is “truly sodomy,” while maintaining simultaneously in the previous paragraph that masturbation to orgasm in the context of an overall procreative sex act is not “truly masturbation.”

On the other hand, one point to Kenrick: since this seems like a terrible idea under all circumstances, the only reason someone would ever want to do it, it seems to me, is “a sodomitic affection,” which (as we saw in #67) is a bad and potentially sinful motive even if there’s technically nothing wrong with the act itself.

#74 – Dangerous Sex Forbidden (With Exceptions)

I had a tough time translating bits of this one, and even consulted a Latinist. Having done so, my best guess is that Bp. Kenrick’s Latin is stilted in places here simply because Bp. Kenrick was not fluent in Latin. The phrase “sex is had” seems to be trying to be permissive, even though, grammatically, it is only descriptive. What “veluti” is doing in the second paragraph is downright vexing:

Non licet plerumque copulam habere, cum vitae vel morbi gravioris periculo, sibi, vel conjugi. Equidem quando de conjugis periculo agitur, si gravis sit causa petendi debiti, periculum manifestandum est ne conjux invitus damnum patiatur.

Si quis morbo venereo laboret, debet abstinere a copula, vel uxorem monere, ne injuria ei fiat invitae. Si autem periculum remotum sit, quod scilicet in partu periclitetur, vel quod valetudo jam infirma frequenti congressu frangenda prorsus sit, videtur licere, quia hoc veluti conjugio inhaeret, et grave foret a copula perpetuo abstinere.

Conjugi morem gerit uxor absque culpa, ut eum a consuetudine prava avertat, et servet. In morbo diuturno, qui vires non tollit, copula habetur, licet haud absque valetudinis detrimento: “si morbus esset diuturnus, et non proxime tendens ad mortem, nempe quod non soleat de brevi et facili mortem inferre, ut esset pestis, aut lepra leonina, (qua frustatim membra decidunt,) tunc non erit illicitum sano petere, si aderit justa causa, nimirum [typo in original: “minirum”] fovendi amorem conjugalem, aut vitandi continentiam in se, vel in altero, quia alias esset valde onerosum tamdiu abstinere ab usu conjugii, quod vix poterit esse sine periculo incontinentiae.”

It is not permitted (for the most part) to have marital intercourse when there is danger to life or of very serious illness, either to oneself or to one’s spouse. Indeed, when there is a danger to the partner, in order for there to be a serious cause for demanding sex [lit. “suing the debt”], there must be a manifest danger, lest the spouse suffer harm against his/her will.

If one suffers from venereal disease, he should abstain from intercourse, or warn his wife, lest she be injured against her will. If, however, the danger is remote, such as the ordinary known danger of childbirth [“scilicet in partu periclitetur”], or the danger of intercourse when a spouse is constitutionally infirm and his health could be altogether shattered by frequent sexual congress, it seems intercourse is permitted, because this inheres in marriage [or?: “because it inheres in this just as in the marriage”], and it would be oppressive to abstain from intercourse perpetually.

A wife has regular sex [lit. “carries on the habits of a spouse”] without sin, so that she might avert him from corrupt habits, and save him. In a long illness, which does not drain strength, sex is had, although not without detriment to health: “If a disease should be long-lasting, and not proceeding near to death, namely which are not in the habit of bringing about death quickly and easily (like a pest or lepromatous leprosy, in which the limbs fall off piecemeal), then, without a doubt, it will not be illicit for a healthy person to ask, if there is a just cause, for fostering conjugal love, lest he commit masturbation or adultery [lit. “lose continence through himself or through another”], because otherwise it would be very onerous to abstain from the marital bed for such a long time, which can scarcely be done without danger of losing sexual self-restraint [lit. “danger of incontinence”].”

There is reference here to a “debt” which “inheres” in marriage. The manualists’ understanding of marriage was that marriage was a contract which granted each spouse substantial claims on the labor, property, time, and body of their spouse. I think almost everyone agrees with the first three, even today, but the fourth one has become controversial. Catholics have believed for a long time that married people, generally speaking, have a right to sexual intercourse with their spouse, and that spouses have a corresponding duty to ensure their spouses’ sexual well-being—just as we have also right and duty to take responsibility for our shares of cleaning the house, raising the kids, and generally taking care of one another.

This sexual “debt,” like most rights, is limited. It does not mean anytime, anywhere. It does not mean that every time hubby asks, wifey must say “yes,” even though she’s exhausted from a long day taking care of the kids. It does not authorize marital rape. And, as we see here, it does not authorize endangering your spouse’s life or health… or your own!

On the other hand, particularly with long illnesses that lead to extended periods of abstinence, the text advises a balancing of interests, and goes into some detail on how that works.

Note that, while the ordinary and general dangers of childbirth are considered “remote” dangers here, extraordinary and particular dangers of childbirth would not be considered remote and do authorize the husband and wife to abstain. A woman with a history of, say, eclampsia faces a very particular and dangerous threat if she gets pregnant again, which would justify abstention. This is discussed in paragraph #103 (which I have not translated here).

Also, the text mentions that the wife can have lots of sex with her husband “in order to avert him from corrupt habits.” But this is certainly not the only circumstance in which the wife can have regular sex with her husband, as the rest of the document makes quite clear! Having habitual sex because she likes it and wants to have lots of his babies (and/or delights in him) is just fine.

Finally, I’m not really clear on why the wife is singled out here. It seems like it would apply equally to both sexes. Most of this document has avoided Victorian stereotypes, but that line seems to smack of it.

#75 – More Dangers

Non licet petere statim a balneis, vel sectione venae, quia coitus tunc habet grave periculum. Sic etiam cum ea quae febri laborat, coire periculosum est. Cum muliere quae gonorrhaeam patitur, coire non decet; sed quum haec diuturna sit, vix prohiberi potest: periculum autem afferre non videtur.

It is not permitted to ask [for sex] immediately after [visiting] the baths or a bloodletting, because intercourse then has serious danger. Thus also it is very dangerous to have sex with those who suffer from fever. It is not becoming to mate with a woman who endures gonorrhea; but, since this is long lasting, it can scarcely be prevented; it does not, at any rate, seem to bring any danger.

A lot of this is based on beliefs about biology that don’t really hold anymore. “Baths” seems to refer to the public bathhouse, and a nice hot bath was understood at the time to be unhealthy, even dangerous.

#76 – Advisories

Post prandium coenamve coire nulla lege vetatur, nec grave fert damnum. Antequam ablactetur infans, coire non decet: juxta illud Gregorii M.: “Ad ejus vero concubitum vir accedere non debet quousque qui gignitur ablactetur”: sed res consilii est, non praecepti.

To fuck10 after lunch or dinner is not forbidden by any law, nor does it cause serious harm. Before the child is weaned, it is not fitting to fuck: according to the saying of Gregory M.: “A man ought not to come to bed with her until the child who has been born is weaned”: but that is a matter of counsel, not of precept.

Enough said.

#77 – Sex for Pleasure Alone

Copula ob solam voluptatem culpa veniali non vacat: damnata enim est propositio: “Opus conjugii ob solam voluptatem exercitum, omni penitus caret culpa ac defectu veniali.” Equidem venialem esse culpam liquet, dum quis veluti finem copulae proponit, quod natura tamquam medium adsignavit quo ad finem, nempe prolis procreationem, alliceremur: sed quum gravis non sit ordinis perversio, non excedit culpam venialem. Quod si quis utatur voluptate ut se excitet ad copulam, nulla erit culpa, quum generationem praecipue sibi proponat.

A copulation is not free from venial guilt when pursued for [lit. “on account of”] pleasure alone; for the sentence is condemned: “The work of marriage, pursued for [lit. “on account of”] pleasure alone being cultivated, is entirely free from all venial sin and defect.” Indeed, it is clear that there is a venial sin, when one proposes just this as the goal of intercourse, because nature assigned this medium by means of which we should be drawn toward the goal, namely, the procreation of offspring: but since the perversion of order is not grievous, it does not exceed a venial sin. But if one uses pleasure to arouse himself [or herself] toward copulation, there will be no fault, when he chiefly proposes procreation to himself.

Reading this paragraph too strictly would tend toward a rigid morality where even eating a candy bar is a venial sin. See my initial notes on paragraph #67 (“Sexual Positions”).

But Kenrick is fundamentally right: pleasure alone cannot be the object of sex. Human nature rewards us with pleasure for doing things that are good for us, but to reap the pleasure without doing something good for us is perverse. (If you don’t find such isolated pleasure perverse, read this comic.) Eating a Hershey bar may be done mainly for pleasure, but there is that rational good of nutrition that is still being actively (if weakly) pursued.11

So does a Catholic really have to be, at some level, actively (if weakly) pursuing a baby each time she has sex with her husband, above and beyond mere openness to a baby? If so, how can Catholic birth control methods (periodic abstinence during fertile periods12) be justified within Catholic sexual morality?

See footnote 4 for why I think Bp. Kenrick missed a trick here. He presents procreation and pleasure as the sole possible objects of sex, but there’s a third object, intimately intertwined with both: the unity of the spouses in mutually self-giving love. Once this third object is recognized, it can be proposed as the principal goal of a given sex act (alongside procreation, of course). I think this is the signal insight of the Theology of the Body—not a new teaching, but a new way of describing a teaching that has been with us from ancient days, like seeing something in parallax for the first time.

So, while we should avoid reading this paragraph too strictly, reading this paragraph too laxly instead (or dismissing it altogether as anachronistic) would tend toward a selfish dissipation, in which pursuit of one’s own pleasure overshadows the fruitful delight in one’s spouse that is at the heart of holy sex.

#78 – No Thinking About Zendaya

Peccatum est mortale copulam habere mente adultera, affectu scilicet ad aliam directo. Quod si quis de alterius pulchritudine cogitet, ut se excitet, absque tamen afiectu turpi, excusatur a nonnemine: sed in periculo manifesto consensus in copulam cogitatam cum aliena versatur. Si quis de aliena copula cogitet, in magno etiam est periculo, licet ea uti tantum velit ad se excitandum ad copulam cum propria conjuge : “haec tamen cogitatio, si esset de copula inter personas determinatas non excusarem a mortali, ob facile periculam consentiendi in delectationein de copula cum conjuge aliena.”

It is a mortal sin to have intercourse with an adulterous mind, that is, with an affection directed toward another. If anyone thinks of the beauty of another, that he [or she; the language throughout this paragraph is gender-neutral] may arouse himself [/herself], even without indecent affection, he is excused by nobody, but is turned toward manifest sin [lit. “danger”] in having assented to thoughts of intercourse with another. If anyone thinks about another’s intercourse, he also is in great danger, even though he only wills it as a means toward arousing himself for intercourse with his own spouse: This thought, if it were about intercourse among certain persons, I still would not excuse from mortal [sinfulness], because of the willing consent in the pleasure of intercourse with another’s partner.

Fantasizing about other people during sex, or about other people having sex, is an abuse of the sexual faculties, and is a mortal sin. Kenrick uses words like “think” instead of “fantasize,” but I think it’s clear in context that he is talking about fantasizing. Clearly, Kenrick doesn’t think it’s always wrong to think about people having intercourse, because, if he did, this chapter of the book would be blank and he wouldn’t be able to hear the confessions of married people! But, if justified rational thought slips into indulging an arousing fantasy, that crosses a line.

Bp. Kenrick (lacking the Theology of the Body) seems not quite able to articulate why these idle fantasies are so terrible. Indeed, Kenrick acknowledges that these fantasies can help facilitate procreation (by making sexual climax easier), and Kenrick very much favors procreation. Yet he rejects these thoughts as a form of consent to intercourse with others, which seems like a bit of a stretch.

It seems easier to explain this rule in terms of the mutual love between the spouses that sex is supposed to cultivate: when you stop delighting in your wife and instead delighting in, say, your own fantasy of Zendaya,13 you have decisively and objectively abandoned the aim of mutual self-gift. You are, at that point, using your wife as a living, breathing fleshlight… not giving yourself over to your wife with the tender love of a husband. You are also using Zendaya, who is a real person and not a psychological fleshlight.

But, without Theology of the Body around to talk about mutual self-gift,14 we get more stilted explanations for the teaching, as here.

#79 – No Sex in Church (Ordinarily)

In loco sacro copula habenda non est, extra necessitatem, quae contingit exercitu in ecclesia diversante.

Sexual intercourse must not be had in a sacred place, outside of necessity, which is connected with administration in a diversifying church.

“Outside of necessity, which is connected with administration in a diversifying church,” seems to be a bit of a Kenrickism. He uses this phrase in a couple other places as well, and I couldn’t find anyone else using it. UPDATE 26 AUGUST: I really thought I saw him use this phrase in another volume of Theologia Moralis, but, if he did, I can’t find it now!

I take him to mean that the “necessity” of having sex in a church is determined by local canon law (as opposed to some universal precept). I am genuinely not sure what would necessitate this, and I half-suspect that Bp. Kenrick doesn’t, either. The fact that he leaves the details to local ordinance indicates that he sees this as a matter of discipline and appropriateness (rather than doctrine, faith, or morals).

UPDATE 26 AUGUST: Several contemporary critics of Catholicism translated portions of this manual. Well, actually, it seems that one critic translated it, and then others reprinted Kenrick’s work, the critical translation, or both, in their own works. (My favorite one is called The Engineer Corps of Hell: Rome’s Sappers and Miners, by a 32nd-Degree Freemason who found it so obscene he refused to include the English translation.) ANYWAY… the popular translation had this as:

Copulation is not to be performed in a sacred place, except through necessity, which may happen when an army is lodging in the church.

This is a grammatically sound translation (moreso, in fact, than mine), but struck me as so bizarre that I rejected it when I was working on this. Yes, armies may lodge in churches… but, no, soldiers lodging in churches are very unlikely to have their spouses around (in 1843), and obviously aren’t able to “perform copulation” with any women they aren’t married to. Even the minimal privacy requirements of the mid-19th century seem difficult to meet in this setting. But, hey, maybe I should trust the contemporary Protestant critics, who have a clearer idea of 1840s army life than I do.

#80 – Sex on Feasts and Fasts Discouraged

In diebus festivis, et jejunii, abstinentia ab opere conjngii commendatur; sed nullam violat legem qui eo fruitur.

On days of feast or fast, abstinence from the work of a married couple is recommended; but no one who enjoys it violates the law.

On days of fast (Lent, Fridays, traditionally Wednesdays, and a few other occasions), Catholics are generally asked to try and make sacrifices and prayers for our sins and sorrows and for the sorrows of the whole world. Thus, no meat on Fridays.15 Sex, as you may have heard, is really fun, which sort of cuts against the spirit of the day.

On days of feast (Sundays, the octave of Christmas, the octave of Easter, and many other occasions), Catholics are generally expected to be exalted with Christ with the angels and glorying in humanity’s special relationship with him. Even very holy sexual intercourse on such days would likely be a distraction—and many individuals in the clerical hierarchy have a long history of suspicion that quite a lot of the sex people are having is not especially holy.

As a practical matter, however, the human heart does not always pulsate to the beat of the liturgical calendar, and the liturgical calendar is so full of days of both feast and fast that following this advice strictly (especially when using natural family planning as birth control!) would make it difficult, and perhaps impossible, to actually ever have sex with your spouse.

Moreover, as a theological matter, the realization that holy sex, in the spirit of mutual self-gift between the spouses, can itself be a celebration of humanity’s unique relationship with the Trinity, in my view substantially weakens the argument against sex on feast days. But you’re here for Bishop Kenrick’s views, not my own.

#81 – Sex During Pregnancy

Graviter nonnunquam arguebant patres maritos uxoribus praegnantibus haud parcentes : sed gravem culpam in consuetudine hac non agnoscunt theologi plerique: nam abortus quod objicitur periculum negatur esse, quum semine recepto claudatur matrix arctissime, haud facile coitu iterato aperienda. Quo magis accedit tempus pariendi, eo minus est periculum, nam foetus ita secundinis involvitur, ut eum non possit semen contingere. Coire tamen cum praegnante S. Alphonso videtur culpa venialis, “nisi adsit periculum incontinentise, vel alia honesta causa.”

Theologians have sometimes severely accused married fathers for not sparing their pregnant wives, but the better part of theologians do not discern a grave fault in this practice: because the danger of a miscarriage (which is raised in objection) is negated, since the womb is closed most tightly once the semen is received, and is by no means easily reopened by more intercourse. The more the time of childbirth approaches, the less the danger, for the fetus is so involved in the uterine appratus [lit. “afterbirth”] that it is impossible for semen to touch him. Nevertheless, St. Alphonsus saw sexually uniting when pregnant as a venial sin, “unless there is a danger of sexual sin [lit. “incontinence”], or some other honorable cause.”

Here, one last time (because I stopped translating after this), we see the mysteries of human biology circa 1843 sowing confusion. It appears to be the case that, at some point prior to 1843, there was a widespread belief that sex during pregnancy risked miscarriage. Since the developing fetus is a living human being, both his parents should avoid taking actions that put him in danger of death. Just as it is forbidden to have sex with your spouse if it would endanger your spouse’s life (see #74), it is likewise forbidden to have sex with your spouse if it would endanger your child’s life.

However, Bishop Kenrick responds that, while this was at some point the prevailing medical consensus, it was no longer the medical consensus in 1843. At this time, it was believed that sex during pregnancy had little or no risk to the child, and that the risk diminished as pregnancy advanced. Thus, sex during pregnancy was not a problem for reason of miscarriage.

To be fair to 1843, medical opinion on sex and miscarriage has fluctuated in the centuries since. As late as 1980—after the sexual revolution, the moon landing, and Star Wars—the 13th edition of the respected OB-GYN textbook, Gynaecology by Ten Teachers still listed “coitus” as a cause of first-trimester miscarriage. Current medical consensus is that Bishop Kenrick’s contemporaries were correct: in normal pregnancies, there is no risk of miscarriage from intercourse and/or orgasm, although there are high-risk women who should take special care. The question appears to still be understudied.

Now, risk of miscarriage aside, is there anything wrong with sex during pregnancy in itself? After all, if one of the purposes of sex is procreation, if all sex must be open to life, “the seed is frustrated in its end of generation,” since there is, guaranteed, no egg for the seed to fertilize. Bishop Kenrick notes that St. Alphonsus Ligouri considered sex during pregnancy a venial sin for this reason, although actually he somewhat understates Ligouri’s vehemence on the point [note: very hasty translation, mostly Google]:

[Some theologians] deny it, both because it is nowhere held to be forbidden per se; and also because it would be a very heavy burden, and a burden exposed to innumerable dangers of sinning venially, if the spouses were obliged to abstain for so long from the conjugal deed while remaining in the same bed. Moreover, they answer against reason, that in order for intercourse to be lawful in marriage, it is sufficient that the act in itself be suitable for generation, but the fact that it does not happen is an accident. Even now, I laugh at that lot and their opinion. …intercourse with a pregnant woman cannot be excused from venial guilt, unless there is a danger of sexual sin, or some other honorable cause, according to what has been said.

Harsh, dude!

Clearly there was substantial division, even among theologians, on this question, such that Ligouri had someone to laugh at.

It seems to me that the disputed question has now been settled, and the theologians St. Ligouri scorned have emerged victorious. Many questions in Catholicism, from the human nature of Christ to the Immaculate Conception of Mary to this question of foreseeably infertile sex, go through periods of dispute, where theologians argue about which answer was the true teaching of the Apostles and which is a later parasitic innovation. It is now solidly established Catholic teaching that infertile sex is lawful within marriage (and always has been), so long as “the act in itself be suitable for generation,” and “the fact that it does not happen” (due to the infertility) “is an accident.” A Catholic woman who has gone through menopause and a Catholic man who became permanently infertile during cancer treatment can both continue to have sexual relations with their respective spouses, so long as the act is in principle open to life. Should God choose to miraculously send a child as He sent a child to Sarah and to Mary, so much the better, but it is not a precondition. (This is a bedrock of a lot of Catholic thinking about how secular marriage law ought to work, although I have somewhat parted ways with the mainstream on that question.) These conditions clearly obtain during pregnancy.

This is another way in which a richer understanding of the purpose of sex (procreation through the deepening self-gift of the spouses accompanied by physical pleasure) casts a clearer light on something that, in recent centuries, was seen only dimly.

---

That is not where Bishop Kenrick stops writing about sexual morality, but it is where I stopped translating! Perhaps I will someday finish De usu coniugii. But probably not. For those interested in reading some Latin, though, here’s an outline of the remainder:

#82: Sex During Menstruation

#83: Sex After Giving Birth

#84: Coitus Interruptus and the Impoverished

#85: The Marital Debt

#86: Husbands’ Duty To Satisfy Perceived Sexual Needs of Wives; Substantial Gender Stereotyping

#87: Whether Sex is Permitted in Unlawful Marriages (Consanguinity) or Where One’s Spouse Has Taken a Vow of Chastity

#88: Whether Sex May Be Sought When One Has Taken a Vow of Chastity for Oneself

#89: Whether Sex is Owed to (or from) an Excommunicated Spouse

#90: When Sex May Be Justly Refused to a Desirous Spouse

#91: Sex in Poverty

#92: Don’t Fast So Much It Ruins Sex

#93: Right to Refuse Disordered Sex

#94: Response to a Spouse who Improperly Requests Sex

#95: I think this is the same topic, but honestly not certain

#96: Wife’s response to a husband who consistently practices coitus interruptus against her will

[#97-#102: All but illegible in online scan]

#103: Sex when there is an established high risk of miscarriage or stillbirth

#104: Women’s rights and responsibilities viz. semen

#105: Sex among the elderly (as accidental premature ejaculation threatens)

#106: “Touches, glances, and indecent words between spouses,” whether or not directed toward copulation.

#107: Touches, glances, and indecent acts when there is danger of accidental improper orgasm. Fellatio / irrumatio.

#108: Masturbation (“touching one’s own impolite parts in the absence of a spouse”).

#109: Fantasizing about spouse in spouse’s absence

---

Lest you come away from this thinking that the 19th-century Catholic was “obsessed” with “policing” sex (a common charge today), remember that this entire chapter is 11 pages long. Volume III of Theologia Moralis is 369 pages long, and the overall work is over 1000 pages long. More than 99.9% is not sex stuff.

The 19th-century Catholic Church wasn’t obsessed with sex. We are obsessed with sex (me very much included), and we project that obsession onto a Catholic Church that had a few things to say about sex because, today, those things are very counter-cultural.

Thank you for reading De Civitate. This post is public, so please do share it (or, if someone shared it with you and you liked it, smash that subscribe button).

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1

The idea of microorganisms causing disease had been proposed and even demonstrated in a couple of cases, but the paradigm-changing moments you read about in textbooks—the 1854 Broad Street cholera outbreak, and Louis Pasteur’s swan-neck bottle experiments—were still decades in the future when Kenrick wrote his book, and would take even longer to trickle out from the scientific establishment to the rest of the educated class. Catholic physician Ignaz Semmelweis, in an infamous tragedy, would soon discover that handwashing in hospitals saved lives… but nobody believed him, doctors kept refusing to wash their hands, and sepsis continued so he eventually had a mental breakdown that led to his commitment to an asylum in 1865 (he died shortly thereafter, ironically enough of sepsis). This is just one minor way in which our understanding of human biology is totally different from the prevailing understanding in 1843, and you have to consider the limits of science in Bp. Kenrick’s time in order to understand Kenrick’s conclusions.

2

You may ask, “But who would ever deliberately ingest poison, simply for pleasure?” I reply: have you ever met a smoker?

Because tobacco use is highly poisonous after even only moderate exposure, and provides no nutritional value in the meantime, it is my view that “moderate use” of tobacco is an oxymoron, and so smoking is, generally speaking, a sin. I agree with my friend Janet Smith that there may be exceptions to this, but (possibly unlike Dr. Smith), I think those exceptions are vanishingly rare, since it seems to me that tobacco is poison from the first puff. (I do agree with the consensus that nicotine addiction greatly attenuates or even extinguishes culpability for any nicotine-related sin.)

However, my view of smoking is not mainstream among Catholics, who generally view it more as an unhealthy food than a straight-up poison. That is why I put this example in a footnote. The main point here is not “tobacco is poison,” which is largely an empirical question. The main point is the moral principle, “deliberately ingesting poison for pure pleasure is a sin”.

3

I understand that the New Natural Law school and probably some other schools of thought would dispute some of this. However, I basically fall foursquare in line behind Feser’s “In Defense of the Perverted Faculty Argument,” and I think he’s right that all natural-law arguments, whether they realize it or not, eventually converge back on something quite close to this argument.

4

The other purpose of sex is the unity, in mutually self-giving love, of the spouses. However, this is not particularly relevant to our discussion, because this purpose is intrinsically intertwined with the purpose of procreation. Just as the unity in love of the Father and the Son produces the Holy Spirit, so too do does the unity in love of the man and woman produce marriage and the baby carriage. These purposes are two sides of the same coin. So Catholics can’t pervert or actively prevent either purpose of sex when they’re having sex. You can’t get away with, say, mutual masturbation by saying “that’s okay because this sex act was for unity, not procreation!” All sex acts conducted in a manner “suitable to reason” are open to both.

Also, at the time Bp. Kenrick was writing this work, “unity of the spouses” was not widely recognized as a separate purpose of sex at all. This idea emerged more out of the Theology of the Body in the 1970s, so Kenrick doesn’t pay any attention to it, sometimes to his loss. (See #77, for example.)

5

In the English language, all transitive verbs that mean “have sex with” in common usage are considered vulgarities. “Fuck” isn’t a perfect translation for “coeunt” here, but I think it’s the best available word: coeunt is transitive and unambiguous, devoid of euphemism or indirectness.

6

Hysteria (2011) is based on the most insanely stupid historical myth I’ve ever heard. According to the myth, Victorian men and women were so unbelievably ignorant of their own bodies that they not only did not value female orgasm, but they could not even recognize a female orgasm when confronted with it. This led them—according to the myth—to accidentally invent vibrators as a medical tool for treating “female hysteria” because they did not know what they were doing.

No one in human history, going back to the cavemen, has ever been that stupid.

The “vibrators were invented to treat hysteria” myth comes from Rachel Maines’ 1999 book The Technology of Orgasm, and is such a crazy story that it was reproduced roughly everywhere, somehow everyone fell for it, and Hollywood turned it into a movie called Hysteria. The problem is that Maines made the whole thing up. There is no evidence that any of this ever happened, and of course there’s gobs of evidence that, yes, the nineteenth century knew what a female orgasm was, thanks very much. It makes me angry to think about how so many advocates for “science-based, sex-positive, educational” approaches to sex fell for this outrageous myth harder than a Michigan Seventh-Day Adventist reading Onania for the first time, and taught it to an entire generation of Americans.

But, for the record: vibrators were not invented as a treatment for female hysteria by doctors who didn’t recognize the female orgasm.

7

Virgins! There are four things you will need on your wedding night: a box of wet wipes, a towel, a tube of good lube, and a sense of humor. You may only need one or two of these, but a good Boy Scout should always Be Prepared.

8

The “upsuck hypothesis” of the 1970s holds that the vaginal contractions during female orgasm help to pull sperm into the uterus, increasing the chances of fertilization, but the evidence for this hypothesis is very fragile—fragile enough that quite a few biologists have dismissed it in the 21st century. If there is a reproductive function of the female orgasm, it’s almost certainly upsuck, but upsuck is far from proven. On the other hand, orgasm does release oxytocin, which would seem to promote the other purpose of sex: unity in love between the spouses.

9

Sidebar: the intuitive (but apparently wrong) belief that female orgasm encouraged ovulation lived alongside the intuitive (but definitely wrong) belief that men and women can’t physically achieve orgasm unless they’re enjoying sex and want orgasm. The interplay between these two intuitive-but-wrong beliefs likely played a significant role in the myth that a woman cannot become pregnant from a genuine rape—a belief that persists, in some quarters, to this day. Modern studies find little to no evidence that rape is less fertile than consensual sex.

10

See footnote 5.

11

For Catholics, it will be of interest that a decree of the Congregation for the Doctrine of the Faith under Pope Innocent XI, condemned the following proposition as definitely false:

The act of marriage exercised for pleasure only is entirely free of all fault and venial defect. —Various Errors on Moral Subjects (II), 4 March 1679, Denzinger number 1159.9.

This document is not infallible, but decrees of the Holy Office are generally written by very smart people who know their religion inside and out, then are promulgated under the authority of the Pope, so they are taken very seriously

.12

…if there is a serious reason for avoiding pregnancy, such as financial exigency, medical or psychological danger, or parental incapacity. The default Catholic view is that every married couple ought to share their love as generously as God has shared His love, specifically by having (and loving) as many babies as they reasonably can. Consumer culture struggles to understand the pain of infertility, seeing it only as one more pleasure desired but denied, while the Catholic view can make better sense of that deep, yawning pain.

13

For the elder generations, I am reliably informed by Dave Barry columns that the appropriate reference here is Scarlett Johansson, or, for the most annuated among us, Marilyn Monroe. For those in the audience who are more tempted to fantasize about men, it’s Cary Grant, George Clooney, and, uh… I dunno, probably one of the Hollywood Chrises?

14

I’m really starting to get nervous that, by throwing ToB around so much, I’m going to attract severe criticism from both the radtrads who think ToB is deviant and the people who actually know a little something about ToB and are gonna get me for oversimplifying it!

15

It is widely believed today, even among Catholics, that the only remaining penitential days are Fridays in Lent. This is not true. All Fridays throughout the year are penitential days (unless a major feast happens to fall on a Friday). Catholics are forbidden from eating meat on Fridays.

What seems to have happened is that, in the 1960s or 1970s (I don’t care enough to find the date), the bishops decided that it would be okay for Catholics to choose an alternate form of penance (instead of giving up meat), such as saying a decade of the Rosary or volunteering at a soup kitchen. It was hoped that this would make the Catholic faith less rigid and rule-bound and help each of the flock develop their own individual relationships with Christ through a penance that fit his or her individual orientations. Only on Fridays in Lent would the entire Church join together in giving up meat specifically.

Instead, Catholics en masse (and this part is really inexplicable to me) decided that this new option meant no Friday penance was required at all, and the practice collapsed. It is, nevertheless, still the law of the Church. I am told that Catholic England (or at least portions of it) have recently revoked the “alternate form of penance” concept altogether, attempting to revive the traditional no-meat Fridays so that at least there’s some kind of penance going on. The Catholic Church has a long way to go before it catches back up with the Eastern Orthodox Church, which is significantly more austere (and more in tune with the ancient tradition of the Church) than the contemporary Latin Rite.

Even after Roe, there’s law… and then there’s abortion law. This time, Kansas pays the price.

NOTE: This post was originally published at my Substack. The footnote links go there instead of to the bottom of the page.

In 2017, Briar Clayton Eugene Adams, a resident of Kansas, was convicted of aggravated battery under Kansas law. In March 2020, he was once again convicted, this time under federal law, for illegally possessing a firearm. Adams pled guilty.

At sentencing, the federal court imposed extra prison time on Mr. Adams, because his earlier conviction for aggravated battery was a “crime of violence.” Adams appealed. His lawyers argued that aggravated battery is not a “crime of violence” in the state of Kansas, and therefore he was not subject to the increased sentence.

You have not heard of this case. I have not seen it reported anywhere. That’s right: today, De Civitate is breaking news!

Adams’ argument that he had not committed a “crime of violence” under federal law was a little convoluted, but let me walk you through it:

1. A “crime of violence” involves a violent act against a person.
2. Kansas’s aggravated battery statute (a state law) punishes battery against both born persons and unborn persons.
3. Unborn people are not “persons” under federal law.
4. Therefore, Kansas’s aggravated battery law punishes conduct against both persons and non-persons, at least as far as federal law is concerned.
5. Since conduct against a non-person is not violence, Kansas’s aggravated battery statute forbids at least some conduct that is not a “crime of violence.”
6. Therefore, violating Kansas’s aggravated battery statute is not a “crime of violence.”
7. Therefore, Adams cannot be sentenced to extra prison time because of a “crime of violence.” For federal law purposes, Adams has never been convicted of a “crime of violence” (even though Kansas state law disagrees).

This is a clever little argument with lots of moving parts, but you can see what a wild conclusion it reaches. Let me reiterate: Adams’ original conviction had nothing to do with an unborn child. He didn’t batter his pregnant girlfriend or anything. His argument is that, because hypothetically committing battery against a fetus wouldn’t count as a crime of violence under federal law, therefore the actual battery Adams actually committed against a born person doesn’t count as a crime of violence, either.

Nevertheless, Adams won his case last week. In United States v. Adams (case #21−3043), a three-judge panel consisting of Judge Bacharach (an Obama appointee), Judge Ebel (a Reagan appointee), and Judge Carson (a Trump appointee) unanimously overturned a lower court ruling and found Adams not guilty of a “crime of violence.” Their opinion is here.

For various complicated legal reasons that all sound sensible enough when you hear them in isolation, Adams may very well be right about items #4 through #7. I’m not a criminal lawyer, and I didn’t delve into those details.1

I didn’t need to, because Adams’ whole argument falls apart at #3. The burden of proof rests upon Adams to show that an unborn child is not a “person” under federal law (and therefore cannot be the victim of a “crime of violence”). The fact that there’s a law on the books called the Unborn Victims of Violence Act might tip you off that this is a tough boulder to push!2

I recently discussed the status of unborn persons under federal law through the lens of the tax code. It’s complicated, but federal statutes have remained studiously neutral on the matter. Roe v. Wade decreed unilaterally that unborn persons are not to be recognized as such, which bound the judicial branch, but Congress never followed suit—and now Roe has fallen, its decrees annulled. In the post-Roe world, the 10th Circuit had no excuse for reaching the conclusion that unborn persons are not persons. They cited Montgomery v. United States (8th Circuit, 2011), but failed to recognize that Montgomery’s logic is entirely dependent upon Roe.3 No Roe means no Montgomery. No Montgomery means no excuse.

They didn’t just get this wrong. They got it wildly, obviously wrong in a way that shocked me, apparently pushed in that direction by a failure of the prosecution (Bryan C. Clark for the District of Kansas) to even raise the dispositive point.4

Adams’ argument hinged on the Born-Alive Infants Protection Act of 2002 (aka BAIPA). In 1999, it emerged that a number of hospitals were performing “live-birth abortions.” In this procedure, the abortionist induces labor for a premature child. Then, rather than giving the (now-born) child medical care, the abortionist either abandons the child to die in a utility closet, or deliberately kills the already-born baby (whether by stabbing or by poisoning). This would appear to be infanticide. However, pro-choicers argued that a pre-viable baby was actually legally not a person and could be neglected and killed without consequence, even if that baby had been born. Worse, several hospitals were following that advice. Congress therefore passed BAIPA to reaffirm the long-held rule that, in fact, yes, at the very least, all children born alive are “persons,” and killing one of them is murder.5

Here are sections (a) and (b) of the Born-Alive Infants Protection Act (1 USC 8), which is itself part of a larger and much older law called the Dictionary Act (1 USC):

(a) In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the words “person”, “human being”, “child”, and “individual”, shall include every infant member of the species homo sapiens who is born alive at any stage of development.

(b) As used in this section, the term “born alive”, with respect to a member of the species homo sapiens, means the complete expulsion or extraction from his or her mother of that member, at any stage of development, who after such expulsion or extraction breathes or has a beating heart, pulsation of the umbilical cord, or definite movement of voluntary muscles, regardless of whether the umbilical cord has been cut, and regardless of whether the expulsion or extraction occurs as a result of natural or induced labor, cesarean section, or induced abortion.

Adams argued that this law right here provides the federal definition of “person,” and, since unborn children have not been born alive, they are therefore not persons. Therefore they cannot be victims of a “crime of violence,” and so on and so forth and the bottom line is Adams is exempt from an increased prison sentence for his aggravated battery, even though the person he battered was already born. QED.

The prosecution rebutted that “the term ‘include’ does not limit what the term ‘person’ means.” Thus, the term “person” could include unborn children, even though they aren’t expressly mentioned here. This is grammatically true, but needs more supporting evidence to become substantive, and the prosecution only mentioned it in a drive-by sentence in a footnote on page 23 of their Respondent’s Brief.

Looking strictly at 1 USC 8(a) and 1 USC(b), then, the Tenth Circuit Court of Appeals concluded that, under federal law, any member of the species homo sapiens that has not been “born alive” is also not a “person,” at least not for purposes of federal law. That’s… a pretty reasonable reading of the those two paragraphs, isn’t it? So why am I so mad about this?

Well, this would probably blow the minds of Judges Bacharach, Ebel, and Carson, who are apparently totally unaware of it, but BAIPA is not just those two paragraphs.

That’s right, kids: there’s a third paragraph, and it blows the Tenth Circuit’s theory to kingdom come!

(c) Nothing in this section shall be construed to affirm, deny, expand, or contract any legal status or legal right applicable to any member of the species homo sapiens at any point prior to being “born alive” as defined in this section.

This paragraph is known as the “neutrality clause.” It was included in the law in order to prevent activists (whether pro-life or pro-choice) from using BAIPA to affect the legal status of unborn children in any way. Its text could not be clearer: BAIPA exists to clarify that born-alive infants are persons, and has absolutely no bearing whatsoever on the question of children who have not yet been born! As I noted in my article on the unborn and taxes, you cannot use BAIPA in a court of law to advance an argument for or against unborn personhood, because it expressly says you can’t!

But that’s exactly—exactly—what the court in United States v. Adams did. They concluded that federal law does not include unborn children within the definition of “person,” and their sole evidence for this was BAIPA. They used BAIPA to “deny” a “legal status” applicable to the members “of the species homo sapiens at any point prior to being born alive”: that is, the status of legal personhood.

This directly violates federal law. The text itself could not be clearer on this point. Neither could Congress’s legislative will and purpose. Neither could a strict or loose construction change any of this. There is no interpretive theory that allows you to get around BAIPA’s express instruction that courts are not allowed to use BAIPA to do the very thing the Adams court just used BAIPA to do.

How, then, do you think the Adams court justified aborting paragraph (c) of the Born-Alive Infants Protection Act anyway?

They didn’t.

There is no mention of 1 USC 8(c) in the court’s opinion.

There is also no mention of it in the oral argument.

There is no mention of it in any of the briefs.

There is no mention of it in the cases cited.

The Adams Court appears, to all intents and purposes, to be totally unaware that 1 USC 8(c) even exists.6

I want to blame the Court for this, but, really, this failure lies with the prosecution, which could have (and should have) swatted away the defense’s entire Dictionary Act argument in one sentence. They didn’t have to dwell on it. They could have still done it in a footnote, if they wanted. The defense brought up 1 USC 8, and very intelligently omitted the third paragraph that devastates their argument—and, hey, good for them, that’s zealous advocacy for their client, which is their job. It was the prosecution’s job to look up the statute and notice that, hey, they can’t actually do that.

This simple citation would have caused the defense’s federal-law argument on personhood to collapse. Their fallback argument was hilarious. (Read it starting on page 30/printed page 15 of this combo PDF.)

First, the defense argued (correctly) that, in the absence of a clear federal definition of “personhood,” the courts should fall back on ordinary usage, as exemplified by English dictionaries.

Then, they listed a whole bunch of dictionary definitions. Every single definition they cited included unborn children unambiguously. We discussed most of those definitions in my piece on fetuses and tax law, so I won’t repeat my entire analysis. Suffice to say that the very first argument the defense made was that an unborn human is not a “person” because, according to the Oxford English Dictionary, an unborn human would first have to qualify as a “child.” So, wanna guess the Oxford English Dictionary’s first definition for “child”? “An unborn or newly born human being.” The defense wisely didn’t mention that.

It goes on in this vein for several pages.

The best bit was when the defense argued that the definition of “person” must not include unborn children, because unborn children are incapable of (inter alia) “unlawful activity” or “exchanging” or “deriv[ing] funds”. This is true, but the defense apparently did not realize that their argument would also strip one-year-old infants of legal personhood!

In short, it was five pages of desperate poppycock that any decent lawyer could have torn through in a few billable hours.7

The prosecution declined to do that. The prosecution didn’t even bother to force the question of common English usage, because they did not confront the defense’s abuse of BAIPA. They focused, instead, on other, more technical issues about how the crime was charged. They thus lost the case. This not only allowed Adams to walk free much sooner, but it harmed the cause of unborn children nationwide, and it harmed the rights of all Kansans to have battery against their own bodies recognized as a “crime of violence”—because a federal court failing to follow clear federal law, ordinary English meaning, and even, failing all that, the superior conscience of the state of Kansas, which is at least trying to protect all lives.

Incidentally, Kansas is voting next week on whether to overturn a state-court decision that created a right to second-trimester dismemberment abortions. If the amendment fails, Kansans will be forced to choose between giving up their personal protections for unborn victims of violence (leaving kids like Conner Peterson less protected), or conceding that a crime of violence against anyone in Kansas doesn’t count for federal law, all because Kansas is too generous in recognizing and protecting fetal victims. Remember: Adams’ crime had nothing to do with abortion or unborn children, but his fate was nevertheless decided by an absurd distortion of an abortion-related law that was only passed in the first place because abortionists were killing born-alive infants in hospitals.

Kansas should resist that obscene choice. Kansans should Vote Yes on August 2nd.

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POSTSCRIPT: My criticism in this piece was particularly unsparing, and characters like Bryan C. Clark, AUSA, are not exactly household names who are routinely subjected to online screeds. As always in such cases, I invite anyone involved in this one to respond to my critique. I promise to publish such responses without revision.

Whenever I see this many smart people with actual professional credentials doing something incredibly embarrassingly stupid, I do pause to think through whether maybe I’m the one doing something incredibly embarrassingly stupid. I publish anyway only once I’m pretty sure that’s not the case. The tell is that no one even addressed 8(c).

PHOTO: by Mitalivshanbhag1810338 and used under a Creative Commons Attribution-Share Alike 4.0 International License.

1

I’m not a lawyer at all! But there are some parts of the law I know something about, and criminal law isn’t one of them.

2

To be perfectly fair, as the 8th Circuit explained in Montgomery v. United States in 2011, the UVVA does not expressly define an “unborn child” as a “person.” This fight was deliberately and wisely avoided in order to win bipartisan supermajority support for the law.

On the other hand, the Unborn Victims of Violence Act does use the phrase “unborn child” and does nothing to preclude the fetus’s recognition as a person based on other provisions of law or the ordinary English meaning of “person.” (Also, not legally binding and Montgomery was right to ignore it… but, c’mon, look at the title! You can’t have a victim without a person!)

3

Montgomery considered and correctly rejected arguments that the Unborn Victims of Violence Act and/or the Born-Alive Infants Protection Act had positively and definitively expanded the federal definition of personhood beyond what Roe allowed. The Montgomery court did not consider the personhood of the unborn child as a matter of first impression, correctly considering itself bound by the sweeping decree of Roe in the absence of definitive guidance to the contrary. Roe, of course, had decreed that the unborn have no personal rights that the Court is bound to respect. But that decree is gone.

In this new situation, Montgomery provides no precedent or even persuasive argument on the question of fetal personhood. Since Roe had settled the matter, Montgomery’s analysis of the underlying question was not even perfunctory; it simply didn’t exist.

In perfect fairness, the 10th Circuit doesn’t only cite Montgomery. It also cites Gomez Fernandez v Barr (9th Circuit, 2020). However, Gomez Fernandez largely depends on Montgomery. To the extent that it offers precedent or persuasive argument independent of Roe and Montgomery, it makes the same mistake the 10th Circuit does in Adams. However, as a case decided during the Roe era, this was more forgivable. (Also, most of the docket in Gomez Fernandez is restricted to the public, so it’s hard to figure out exactly what the argument was there.)

4

The prosecution all but conceded the non-personhood of the fetus off the bat and spent almost the entirety of both its reply briefs and its oral argument spinning an elaborate tale wherein the Kansas law against aggravated battery should actually count as two laws, one for battery of a born person and a separate law for battery of an unborn child. The prosecution argued that Adams was convicted under only the first law, which is a crime of violence.

Basically, instead of confronting the issue of the unborn child’s personhood under federal law, they attempted to avoid it. Perhaps they calculated that conceding the point gave them the best chance of winning the case against Adams, which, in fairness, is the prosecution’s sworn duty and must always be its highest priority.

5

It bears mentioning that BAIPA did not solve all our problems in this department. We know that some abortionists still sometimes murder children after they are born. Some, rarely, are caught and prosecuted, usually after they kill a mother as well. Others routinely get away with it. Having a law is not enough; it must also be enforced.

6

Ditto the court in Gomez Fernandez. Yeah, don’t think I’m letting you off the hook just because I have such low expectations of the 9th Circuit! You, too, did bad!

7

Well, you know, actually the rule of lenity argument was not terrible. So four and a half pages of poppycock and a solid paragraph of something at least worth thinking through.

Some Constitutional Amendments #3

NOTE: This post was originally published at my Substack. The footnote links go there instead of to the bottom of the page.

Many writers propose constitutional amendments in order to demonstrate their fantasy vision of the perfect regime. In this series, I propose realistic amendments to the Constitution aimed at improving the structure of the U.S. national government, without addressing substantive issues. Today’s proposal:

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AMENDMENT XXX

Section 1. If a state elects Representatives by electoral districts (whether its entire delegation or only a portion), all persons in the state shall be included in exactly one such district; each district shall elect an equal number of Representatives; each district shall be contiguous; the smallest district shall have at least nine-hundred-ninety-nine persons for every thousand persons in the largest district; and the average straight-line distance between each person’s residence and the geographic center of that person’s district shall be the minimum known to be possible at the time prescribed by state or federal law for the determination of districts.

Section 2. If a state elects multiple Representatives from any single district, it must use proportional representation to elect Representatives in all districts. Congress may enforce this section by appropriate legislation.

Section 3. Congress may not otherwise interfere with any state’s apportionment of districts for election to the House of Representatives, or its choice of plurality, majority, proportional, or mixed voting systems in elections to either house of Congress.

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Perhaps the Founding Fathers’ biggest mistake was that they expected no political parties.

The Founders believed political parties were very bad, and also believed that (in a healthy republic) political parties would never arise. They were very clear that their system would not work as intended if political parties (or “factions”) arose.

Oops! Factions emerged almost immediately, making this one of the first pieces of the Founders’ Constitution to fail. A mere eight years after the Constitution was ratified, the nation was riven by one of the ugliest, most partisan presidential elections in its history, the Jefferson-Adams election of 1800. This was the fruit of America’s First Party System. Today, we are on the Sixth Party System, possibly in transition to the Seventh. What we’ve never had1 is a No-Party System. With 21st-century hindsight, we now know that parties emerge automatically in democratic systems. This is because people disagree about things, and naturally form coalitions with others who share similar (but not identical) interests in order to mutually advance their interests.

The Constitution instructs that states be given Representatives based on their population. It further instructs that all Representatives be chosen by popular election. Beyond that, the Constitution entrusted state legislatures to decide all the details of elections for Representatives, although Congress retains broad powers to supervise the states’ decisions.

If state legislatures are composed of dozens of independent voices all trying their best to serve the best interests of their district first and their branch second, then this (probably) works quite well. State legislatures may settle on a wide range of electoral systems that work reasonably well, and they will draw any electoral districts with roughly equal population2 based on county lines and city borders. Any individual legislator who tries to wrest an unfair advantage for herself or her district will get outvoted by the rest of the legislature.

…but if state legislatures are composed of two political parties, one of which has majority control, then Katy bar the door! The political party members will work together in the interests of the party first, their districts second, and their branch of government some distant third. They will choose an electoral system and draw districts that maximize the strength of the party, and no one can stop them.

Gerrymanders: They’re Bad!

In 1812, the word “gerrymander” was coined.3 The word immediately went national, because, a mere 20 years after the Constitution was ratified, gerrymandering was already widespread. It just hadn’t had a name before! You’ve all seen the original cartoon, but it’s a good one, so here it is again:

Political parties wiggle and bend their districts however they need them to bend in order to elect a greater proportion of the legislature than their overall vote share would imply they deserve. Gerrymandering has been a continuous feature of our political system for over two centuries. The Washington Post produced a useful graphic a few years ago to explain how it works:

With computer assistance, gerrymanders have become ever more effective. Both parties do it and always have. In fact, for most of the 20th Century, Democrats drew by far the most effective gerrymanders. It was only when Republicans took control of the 2010 redistricting cycle, just as computerized gerrymandering came into its own, that stopping gerrymandering suddenly became a democratic fundamental to the Blue Tribe.

Today, you can easily pick out red or blue gerrymanders throughout the country. However, for my money, the most offensive map is the Wisconsin State Assembly’s. In the 2018 election, the Democrats won 53% of the total vote in the state, beating the Republicans by 8 points and scoring a solid outright majority in the statewide popular vote… but the Democrats only got 36% of the actual seats in the Wisconsin State Assembly. Republicans, who lost the election decisively, ended up three seats sort of super-majority control in the Assembly that year.

Longtime readers know how passionately I believe that democracy needs to be constrained. But, reader, if you have a popular election and the clear outright winning party ends up with barely a third of the available seats, you dun screwed up. That’s not “constraining” democracy. It’s not having democracy.

Of course, if Wisconsin Democrats had won enough votes, no gerrymander could have stopped them. If they had won 60%-40%, they would have won a majority of seats. If they had gone much beyond that, the Republicans’ gerrymander would have converted to a dummymander, awarding Democrats a disproportionate number of seats. In our polarized age, however, these kinds of swings are very rare. Map-drawers know that.

Again, this isn’t because Republicans are unusually evil or anything. The current partisan asymmetry in redistricting is largely because Republicans got lucky in 2010. Their luck will, inevitably, run out. Democrats first tried to ban partisan redistricting through the courts, but, when that failed, they (quite rationally) embraced partisan districting in order to counter the GOP. They’ve proved quite adept at it in the 2020 cycle. What happens in 2030 is anyone’s guess. That makes the 2020s an ideal time to put a stop to gerrymandering, once and for all.

I trust this is uncontroversial. I have never heard a principled defense of partisan gerrymandering. Everyone seems to know that it’s bad, and that it’s a double-edged sword. It’s just that neither party can unilaterally disarm. The closest anyone comes to defending gerrymandering is that it’s been around since the Founding (true), Democrats’ current outrage over gerrymandering is selective and hypocritical (true but the Republicans will do the same whenever the pendulum swings back), and that gerrymandering can’t be eliminated without reconfiguring our constitutional order.

So let’s reconfigure our constitutional order! That’s what amendments are for!

Current Districting Law

The simplest option would be to simply enshrine our current redistricting law in the Constitution. That may sound tautological, but a lot of current redistricting law was either made up by courts in the 1960s—sometimes in flagrant disregard of the Constitution4—or flows from that court-made law. Much of the rest comes from Congressional statutes, which are good, but could be repealed relatively easily by a sufficiently large and determined majority. If we think our current redistricting law offers good guidance, it might be wise to give it an actual grounding in the Constitution, rather than counting on bad precedents and good statutes lasting forever.

To summarize a lot of law very quickly, the law currently says that Representatives must be elected from congressional districts that are:

• Contiguous: you can’t split the district across different parts of the state; all parts of the district must actually connect. You never thought of non-contiguous districts, didja? But some clever gerrymandering legislator did.
• Comprehensive: your districts have to include everyone in the state. You can’t decide you just don’t like the voters in, like, Duluth or something and exclude the entire city of Duluth from your electoral districts. Everyone gets to be in one (and only one5) electoral district.
• Compact: the district can’t be in a weird, wiggly, elongated shape (like Mr. Gerry’s original gerrymander). Mathematically, this is extremely difficult to define precisely, but people know a non-compact district when they see it.
• Equal population: the district can’t have more or fewer people in it than other districts. Courts allow very little deviation from this, requiring a “good faith effort to achieve absolute equality,” and striking down any maps where the difference between the largest and smallest district’s population is more than 0.8% of the population of the average district. (Even that was allowed only with special justification.) Incidentally, meeting this requirement is really quite challenging. Try it yourself sometime.
• Racial representation: the district map, as a whole, must provide reasonable and proportionate representation to racial minorities that have distinctive voting patterns (think Black voters, who are largely loyal Democrats but who live in strong Republican states). This rule (somewhat perversely) requires gerrymandering to create a proportionate number of “majority-minority” districts, but makes sense in the context of rampant Jim Crow anti-Black gerrymanders.
• Single-member: each district must elect one and only one Representative. Multi-member districts, where each district would elect multiple Congressmen, and at-large districts, where the entire state voted on all its Congressmen, have mostly6 been outlawed since the 1840s. The problem with multi-member and at-large districts was that parties would use them to give themselves disproportionate power. For example, in a state that’s 60% Democrat and 40% Republican, you could have district-based elections, but Republicans are probably strong in some parts of the state and are likely to win at least a few seats. But if you have a statewide, at-large election, you can ensure that Democrats win every seat! Southern Democrats also contemplated using at-large Congressional elections to suppress Black political power after the Civil Rights Act passed.
• Community of interest: this is more of a nice-to-have than a requirement, but courts and legislatures are generally supportive of efforts to keep “communities of interest” (towns, counties, neighborhoods) within the same district. If one map splits a town’s voters into three districts, but another map keeps the whole town in one district, then, all else being equal, everyone would prefer the second map. However, this criterion is vague, subjective, and is always the first criterion sacrificed in order to make the others work.

If you’re trying to build a federal democracy where voters of all persuasions from every state are represented fairly in the People’s House of Congress… these are mostly pretty sensible rules! Even if some of them were made up out of whole cloth by an unelected, unaccountable Supreme Court in the 1960s, they’re (mostly) worth keeping.

Redistricting Commissions Considered Harmful

One popular proposal for ending gerrymandering is to put map-drawing power in the hands of so-called “independent redistricting commissions”, like the one they’ve set up in Arizona. The idea is, you set up a commission that is either non-partisan or has equal representation from both parties (plus maybe independents). You put wise, fair, and impartial people on it—people who can be honest and concerned for the whole state, because they don’t have to worry about winning re-election. Then you give them the districting criteria listed above and tell the commissioners to use those rules to draw fair maps. The commission’s maps then become the law automatically, even if the partisan legislature wants to gerrymander instead.

This sounds great until you think about it for a few minutes.

As soon as you set up a non-partisan commission with the power to make or break the power of both political parties in a state, what’s the first thing both political parties are going to do? That’s right: try to take control of the commission. There are a number of ways of doing this. On a non-partisan commission, you just appoint people whom you know privately to be “on your team.” On a partisan commission, you either try to appoint clandestine partisans to any “independent” seats, like in New Jersey, or you try to exploit factions in the other party to your advantage.

You can’t avoid this by making the process for appointing people to the commission non-partisan, either. Under modern polarization, there is no such thing as a non-partisan appointments process. Everyone in proximity to government has partisan views. Handing the appointment power to, say, the “non-partisan” government bureaucracy would simply hand control of the commission to Democrats, who overwhelmingly dominate the bureaucracy. Exactly this happened in California, despite fairly elaborate anti-partisan firewalls. Having commissioners appointed by, say, a majority of mayors would hand control to Republicans (who control more but smaller towns), and so on. Opening the appointments process to popular vote would simply make an implicitly partisan competition explicitly so, as both parties would naturally endorse “their” favored commissioners and mobilize “their” voters in support and opposition. Independent redistricting commissions will always end up partisan.

If they can’t quite gain control of the commission, partisan agents on the commission can simply sabotage it, so that the commission is unable to produce maps and control reverts to an elected (partisan) legislature or an unelected (but still partisan) state supreme court. This sounds conspiratorial, but appears to have happened this year in both New York and Virginia. (Of course, in all cases, partisans blame the other party for the sabotage.)

Independent redistricting commissions don’t work. They help somewhat, but not enough—not as much as their supporters promised, and only until one party or the other finds a way to wrest control of it. Worse: once a party has control of the commission, the commission (which, remember, has been deliberately protected from political accountability in order to preserve its “independence”) cannot be fixed simply by voting really hard at the next election. You’re stuck with a subverted redistricting commission and an extended campaign to take it back… at which point now your party controls a subverted commission.

This is not a solvable problem. As long as redistricting allows discretion, it is a fundamentally political process. It can only be managed through the ugly hurly-burly of politics.

The key to reducing partisanship in gerrymandering, then, is not to change who gets to draw the lines. Any real-world line-drawing body, no matter how constituted, will be subverted by partisans.7 The key is eliminating the line-drawers’ discretion.

Promising Reforms Prohibited

At the same time, some of the restrictions Congress has imposed on the redistricting process—while perfectly constitutional and enacted for good reasons—have inadvertently cut off promising electoral reforms, which may have advantages over our current system.

For example, a large state like Pennsylvania might wish to elect its Congresspeople using the method currently used by the Scottish Parliament. In this system, each voter casts two votes: one for a specific candidate standing for election in her congressional district, and one for a political party. However, some Congressional seats are not assigned to any district, and are held “in reserve.”

After the votes are totaled up and the winner in each district is known, the statewide party vote is tabulated. Parties receive additional seats as a “top-up” if they performed well in the statewide vote but didn’t win a proportionate number of districts. These additional seats are assigned using an algorithm called the D’Hondt Method, which was invented by Thomas Jefferson and is currently used in many places around the world but (ironically) is illegal to use in Jefferson’s own United States!

That’s all very abstract, so let me give you an example. Imagine a state with ten districts. All of the districts are 55% Democrat and 45% Republican. Election Day comes and, sure enough, the Democrats win 9 out of 10 districts. (They lost the last one because of a weak candidate, which always happens somewhere.) Only 55% of the state’s voters supported Democrats, but they won 90% of the representation! Meanwhile, the state is almost half Republican, but only got 10% of the representation! Hardly seems fair.

Enter the “top-up” system. This state actually has 20 total Congressional seats, not 10! The first 10 were awarded by district election, but the other 10 were held in reserve. Because Republicans won far fewer districts than their vote totals suggest they “deserve”, the D’Hondt method awards them 8 of the top-up seats. Democrats get 2 of the top-up seats.

Final result: Democrats 11 seats, Republicans 9 seats. Democrats won 55% of the statewide popular vote and get 55% of the seats. Republicans won 45% of the statewide popular vote and get 45% of the seats. Meanwhile, each voter in the state continues to enjoy the benefits of local representation and local campaigns, since each still has a Representative in Congress who comes from the voter’s own district and is responsive to the special concerns of that district.

This system also encourages third parties, which are unable to win single-member districts outright, but which can often scrape together enough votes at the statewide vote stage to win a seat or two.

The system I have just described is called the “Additional Member System.” It is considered a mixed electoral system, because it includes both plurality representation (the winner-take-all districts in the “first round”) and proportional representation (the proportional adjustments in the “second round”). It’s not perfect (it tends to place more power in the hands of party bosses, for example), but it’s been mathematically proven that no voting system is.

There are lots and lots and lots of other electoral systems out there.8 Various election reformers would like to try bringing some of them to the United States. In our beautiful federalist experiment, some states may prefer one system, other states may prefer another, and most states likely want to stick with the current system, because they know it works. The states, as “laboratories of democracy”, should be able to try some of these ideas out and see if they work.9

But they can’t, because Congress—in its understandable zeal to stop parties from rigging the outcomes with at-large voting—banned all electoral systems for Congress except winner-take-all single-member districts.

The Redistricting Amendment

That leads us back to the text of our proposed amendment:

AMENDMENT XXX10

Section 1. If a state elects Representatives by electoral districts (whether its entire delegation or only a portion), all persons in the state shall be included in exactly one such district; each district shall elect an equal number of Representatives; each district shall be contiguous; the smallest district shall have at least nine-hundred-ninety-nine persons for every thousand persons in the largest district; and the average straight-line distance between each person’s residence and the geographic center of that person’s district shall be the minimum known to be possible at the time prescribed by state or federal law for the determination of districts.

Section 2. If a state elects multiple Representatives from any single district, it must use proportional representation to elect Representatives in all districts. Congress may enforce this section by appropriate legislation.

Section 3. Congress may not otherwise interfere with any state’s apportionment of districts for election to the House of Representatives, or its choice of plurality, majority, proportional, or mixed voting systems in elections to either house of Congress.

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Section 3: Electoral Experiments Authorized

Section 3 permanently allows states to experiment with alternative electoral systems, and formally clarifies that Congress does not have authority to interfere in them.11 Since Section 3 forbids future Congressional interference even if one of the parties finds a way to exploit this amendment, the success of Section 3 depends on Sections 1 & 2 being exploitation-proof.

Section 2: No Multi-Member Shenanigans

Section 2 prevents states from doing shenanigans with proportional representation or multi-member districts. For example, a malicious state legislature could make some districts hold proportional elections but make other districts winner-take-all. It could also have at-large statewide elections without making them proportional, making the whole state winner-take-all. These systems could substantially dilute the opposition vote. It would be worse than what we have today.

Congress’s current blanket rule against single-member districts accomplishes the same goal as Section 2, but the current rule also prevents all those experimental electoral systems we talked about. Section 2 offers a still-robust but much narrower rule. Congress is authorized to enforce this section of the amendment (and only this section), presumably by giving precise definition to the phrase “proportional representation” so states can’t cheat around it with a pseudo-proportional system. But this section also depends on the rules in Section 1 creating fair district maps.

So the heart of this proposal is Section 1.

Section 1: Gerrymandering Outlawed

Section 1 mostly—mostly—takes the current rules for drawing district lines and enshrines them in the Constitution. If a state chooses to continue using electoral districts (and, under Section 2, it doesn’t have to; it could hold a single statewide proportional election instead), then it has to ensure that the districts are:

• Contiguous: all parts of the district connect
• Comprehensive: everyone in one and only one district
• Equal population: this proposal finally ends the current system where courts decide whether “close enough” is close enough. The amendment formally defines “close enough” as a 0.1% population deviation (“nine-hundred-ninety-nine persons for every thousand persons”). This is fairly stringent by current legal standards (which have allowed approximately ten times more deviation for court-ordained “good reasons”), but is perfectly attainable.12
• Compact: as I said before, compactness is hard to define, even harder to require, and impossible to fully reconcile with other goals like representing “communities of interest.” Compactness is also the keystone of any effort to stop gerrymandering. After all, what’s the problem with these maps?I can’t find the original source of this graphic (by Peter Bell), but the maps are from the 2011-2013 redistricting cycle. Some of these were eventually blocked by court order, but it took a while.

The problem is clear: these districts aren’t compact. They’ve been drawn with all sorts of wiggles and appendages in order to contain just the right voters (or just the wrong voters). This is exactly like the gerrymander in Elkanah Tisdale’s original cartoon from 1812. The heart of gerrymandering is trading district compactness for selfish electoral outcomes.

Our solution to gerrymandering, whatever it is, must put a knife through this tradeoff, once and for all. It must, above all else, mandate compactness. And that’s not all: our solution to compactness must be clear (so that it can be transparently obeyed), simple (so the voters voting on this amendment understand what they’re voting for and no loopholes can sneak in), short (you simply can’t write a five-page algorithm into a federal constitutional amendment), and exhaustive (so that the parties have no “discretion” that they can use to wheedle out partisan advantage).

There are a few well-known systems that could accomplish these goals, in various balances. For example, I think a convex-hull minimization algorithm would be really neat and probably draws great districts, but I also think it’s really hard to explain or understand what a “convex-hull minimization algorithm” actually is. I picked the method that I think strikes the best balance between these objectives, and (more to the point) the one that I think has the best chance of winning popular support in a national ratification campaign:

…the average straight-line distance between each person’s residence and the geographic center of that person’s district shall be the minimum…

This involves no fancy math and (unlike most compactness measures!) no mention of pi. Everyone knows how to find the center of an area on a map. Everyone knows how to measure the distance between his or her house and that center. Everyone knows how to do that for a bunch of houses and take the average. You can explain the entire rule it in a sentence. It’s just one little sentence in the amendment—not even a full sentence but a sentence fragment!—but I worked on writing that sentence for months, trying out various methods and finding them too complex for words. Minimum average distance works, and that’s why it’s in this amendment.

So let’s say it’s redistricting time, and we’re using this rule. The Republicans draw a map and the Democrats draw a map. Citizens can also draw and submit their own maps. So can computers. All maps meet the other requirements (contiguous, comprehensive, et cetera). You might see it as an open competition to draw the best map. The map that wins and becomes law is the one where people (on average) live closest to the center of their districts.

Why? Gerrymandered districts are ordinarily long, thin, and irregular, which means that most people in a gerrymandered district don’t live anywhere close to the district’s center. The lowest-average-distance rule makes it impossible to draw such districts and still win the competition.

I know, a picture is worth a thousand explanations. Remember that ridiculous New Jersey map passed by an “independent” commission?

Here’s how a computer following the lowest-average-distance rule drew it, using the same census data:

Isn’t that just… an obviously better and fairer map?

The national political effects of this would be delightfully neutral, too. In 2018, FiveThirtyEight published The Atlas of Redistricting, which showed what the map would look like if this technique were rolled out nationally. First, for comparison, here’s the actual map that existed in 2018:

Yikes. And here’s the map if it had followed the “least-average-distance” rule instead:

It’s just… better! Look how many fewer jagged lines there are in, I don’t know, Ohio.

Since neither party currently holds a clear long-term advantage from gerrymandering, the impact on national politics is modest and symmetrical. Under the actual 2018 maps, there were 195 Red districts, 168 Blue districts, and 72 highly competitive “purple” districts. Under the rule I’m proposing, there would have been 180 Red districts, 151 Blue districts, and 104 purple districts.13 So Red loses 15 safe seats, Blue loses 17 safe seats, and the nation gains 32 more competitive districts where the fate of the House of Representatives can be decided.

To me, that sounds like a pretty good deal for all sides! Gerrymandering ends forever, and neither side’s Congressional delegation gets hurt!

There is one caveat:

…shall be the minimum known to be possible at the time prescribed by state or federal law for the determination of districts.

The key improvement this system imposes on our system is that it eliminates discretion by imposing clear criteria for what counts as the “best” map out of a set of proposals. The key drawback, however, is that there is not (currently) a way to mathematically prove that a given map is the absolute best map possible. All you can do is try out different maps and check which one scores better.

The most popular algorithm for finding lowest-average-distance maps runs on a home computer, but takes “3-4 hours to find one solution to the California congressional map.” The author says he runs the solver for a couple of weeks in order to find the actual best fits. A state government, or an ambitious political party, or a university political science department, would have far more resources and could identify great maps much more quickly. A political party might very well discover a map with a very low average distances, but which takes away some of the party’s political advantages. The party might very well delete that map and pretend it never saw it. This would be unconstitutional, perhaps even a crime under state law, but, hey, political parties do crimes on the reg, so this is no surprise. Fortunately, since both political parties will be searching hard for maps, the other party (or some independent group) is likely to discover the same map, and publicize it. No harm done.

This amendment accepts that you can’t just keep letting people discover new and more refined maps right up until Election Day, because that would cause chaos, with maps in flux even while people are already voting. Instead, it allows the state or the federal government to set a deadline for discovering and submitting maps. (If both set a deadline, the Supremacy Clause means the federal deadline controls.)

Out of all the maps published by the deadline, the winning map is the one with the lowest average distance. No one gets any discretion. There is no room for map-rigging. Any attempt at map-rigging can be easily and fairly identified by any court, then blocked. The amendment’s text here is very broad (“known to be possible”), in order to prevent malicious state government from imposing onerous submission requirements and thereby ignoring good maps that the government happens to dislike. If the best map is public knowledge, then it must be used, even if its author didn’t fill out Submission Form KLM-47 in triplicate for the state’s paper-pushing department.

Section 1 would instantly and permanently end gerrymandering, by both parties, at the federal level, forever… while Sections 2 and 3 would simultaneously enable a new era of experimentation in alternative (and perhaps superior?) electoral systems, for states that choose to exercise their rights under federalism to try out alternatives. That’s a pretty big win, if I do say so myself.

The Sacrifices

This amendment still makes two sacrifices. One of them is something the Left will hate. The other is something the Right will hate. (And, reader, I really do hate it.)

The Left loses explicit race-based representation. Guaranteeing compactness leaves no room for any gerrymandering. Not the “bad” kind, of course, but also not the “good” kind, where well-meaning civil rights supporters gerrymander districts to get Black or Hispanic voters in control of a district of “their own,” a so-called “majority-minority district.” Under this amendment, there will still be majority-minority districts, because there are a lot of places in this country where minorities naturally form a majority! But there will no longer be a legal rule allowing legislatures or courts to force majority-minority districts into being just because it’s possible to do so. According to FiveThirtyEight, the current system produced 95 majority-minority districts in 2018. Under this amendment, there would have been only 89 majority-minority districts. Half a dozen districts is not a huge loss, and I think it is more than justified by the system’s overall gains in democracy (the amendment also prevents gerrymandering against minorities, which is huge)… but it is still the fewest majority-minority districts produced under any of the eight methods FiveThirtyEight evaluated.

For its part, the Right loses communities of interest—y’know, neighborhood districts. The Right loves that stuff, because it is human in a way that resists technocratic steamrolling. The system proposed in this amendment, by contrast, cares about only one thing: building compact districts by minimizing the average distance between the voter and the center of her district. It does not care about, or even know about, neighborhoods, ethno-national enclaves, city borders, or county lines. This system splits them up without the slightest heed, and it does so an awful lot. According to FiveThirtyEight, the current system splits county borders into multiple districts 621 times, and most other systems post similar numbers. But this system? 1,660 county splits. That’s a lot. Where I live, people drawing district boundaries typically try to respect the twists and turns of the Mississippi River, a major geographic, political, and demographic boundary here. The lowest-average-distance system doesn’t care at all, and it shows.

So be it. As we’ve seen, no system is perfect. If you want to kill gerrymandering—and not just kill it dead, but cut out its heart so it can never come back again—you cannot give legislators a bunch of discretion to draw racial gerrymanders or pick which specific “communities of interest” they want to avoid splitting up (a decision that can be used to manipulate the map in a thousand different ways). You can’t tie districting to county lines or city borders, because the state legislature can redraw those borders at will if it sees any political advantage in doing so. Explicit racial representation and district-based community representation are both lovely ideals… but they are not compatible with the goal of outlawing gerrymanders.

I think that’s worth it. I suspect, when the question is fairly put to them, the American People would, too. Pass the Anti-Gerrymandering Amendment before the 2030 census.

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Tag: #SomeConstitutionalAmendments

1

Except, arguably, in short stretches of 3 to 5 years, like the period between the disintegration of the Federalist Party (1815) and the financial Panic of 1819 / the Missouri Crisis (1820).

2

Although districts would not be legally required to be of equal size until the late 19th century, and this would not be declared a constitutional requirement until Wesberry v. Sanders in 1964, the Founding generation was well aware of the importance of equal-sized districts. “Rotten boroughs” in Parliament were already a substantial political concern in England by the end of the 18th century. Unfortunately, the demands of the Chartists and their precursors would not catch fire until after the Constitution was ratified, and their wise reforms did not make it into the federal Constitution, although many states would adopt some form of equal-population rule.

3

The gerrymander is named after Elbridge Gerry, whom you may recall as the hero of my most recent article on constitutional amendments. Unfortunately, for all his democratic bona fides, Gerry is the one who signed the redistricting plan that created this most famous of all gerrymanders, and it is what he is principally remembered for today. Never do bad things, because people will always remember the worst thing about you the longest.

4

You can refute the entire legal theory of Reynolds v. Sims, the foundational text of our modern districting case law and its “one person, one vote” theory, in just six words: “The United States Senate is constitutional.”

See Robert B. McKay’s paper, “Federal Analogy and State Apportionment Standards,” for the official response (formally blessed by the Court in Sims). However, my principal reaction to this paper is to gawp at the sweeping, because-I-said-so declarations about extra-constitutional “equalitarian principles” which evidently passed for sophisticated legal reasoning in the early 1960s.

5

Floterial districts (where a single citizen may live in two or more overlapping electoral districts) have some useful applications and are currently used in (I believe) three states, but they are currently illegal at the Congressional level under the comprehensiveness rules. The main purpose of floterial districts is preserving communities of interest while relieving population disparities between those communities.

6

Technically, multi-member districts and at-large congressional elections were outlawed from 1842-1850, 1862-1932, and 1967-present.

Well, technically technically, they were legal from 1929-1932, but nobody was sure until Wood v. Broom. There were also significant constitutional doubts in the 1840s about whether Congress had the authority to outlaw multi-member and at-large districts, and several states ignored the original statute. Those doubts were never really settled, to my knowledge, but the states in question eventually switched to single-member districts anyway. The amendment proposed by this article would finally resolve those constitutional doubts in favor of the states.

For more information on the history of multi-member and at-large districts for House of Representatives see FairVote’s history.

In addition, several state legislatures continue to use multi-member district elections, including South Dakota and Washington. Also, the odds are good that your city council runs on some kind of multi-member system, with (usually two) representatives elected from each ward or precinct.

7

A Canadian friend of mine observes that Canada doesn’t have this problem. Nor does much of Europe. This is not because their election system is somehow more insulated from partisanship than ours is; it is because their national mood is much less riven by partisan discord than ours is, so their system doesn’t need partisan insulation. Any Canadian districting system will be less polarized than any American districting system, because Canadians are less polarized in general.

The reasons for the lower level of polarization in (some) other parts of the world is beyond the scope of this post, but suffice to say for now that our polarization does not appear to arise from some fundamental defect in the American political system or the American moral character, although having our executive branch be separately elected may exacerbate it. Rising populist movements the world over, including Canada’s trucker protests last year (and the dictatorial powers invoked to suppress them) suggest the veneer of non-partisan Euro-Canada stability may be more fragile than it appears.

8

We’re not really talking about vote-counting methods today, but, if you’re interested in voting methods, Woodall’s Condorcet method (also here) (also here) is better than Instant Runoff is better than first-past-the-post. Instant Runoff mostly gets you closer to the “correct” Condorcet winner of an election and is generally better than our current system, but it has some very bizarre random effects where it occasionally elects a fringe radical for no reason. IRV supporters are, like, “The 2009 Burlington mayoral election was just one time; stop beating that dead horse!” but, no, the 2009 Burlington mayor mess is an inherent feature of IRV. In that case, it randomly elected a fringe left-wing candidate (which my left-wing friends are inclined to see as a feature), but there’s no inherent reason it couldn’t just as easily elect a fringe right-wing candidate.

9

Supporters of alternative election systems may ask: this is a constitutional amendment, which can do anything, so why are we simply opening the door to modest experimentation, rather than turning over the apple cart and, say, reinventing the House of Representatives as a national parliament with national “top-up” seats while disempowering the Senate? Fair question.

Remember the premise of this series: we are trying to develop structural, non-polarized constitutional amendments that could, theoretically, actually achieve 85%+ popular support and get ratified. A proposal to transform Congress into a parliament could never possibly pass, firstly because the American People prefer incremental to radical change, secondly because the small states vigilantly guard their Senate power (as they have since the Founding), thirdly because a “national parliament” would (under present circumstances) greatly empower the Blue tribe over the Red and therefore cannot win Red support, and fourthly because it’s actually a bad idea, because the Senate is good and the House of Lords is bad. (We’ll talk about why we need the Senate when I eventually get around to proposing Some Constitutional Amendments for the Senate, but I touched on it in my proposal for a new Origination Clause.)

10

Starring Vin Diesel as Xander Cage!

11

This would be a reversal of the current understanding. See footnote 6, above.

12

The method prescribed by the amendment is also not quite the same as the method currently used by the courts, which requires several paragraphs of explanation. Basically, under today’s rule, you look at every district and calculate the percentage difference between its population and the “ideal” population. The largest answer you get is the map’s population deviation. The method I am proposing makes a direct comparison between the largest and smallest district. This is more stringent, but is not precisely comparable.

I played around with Districtr for a while to see how they differ. On an idealized map, a 0.5% population deviation under the current system counted as a 1.0% population deviation under the proposed amendment. On a more realistic map, a 7.3% deviation under the current system would count as an 11.7% deviation under the proposed amendment.

In any event, the method proposed by this amendment will always yield districts that are much more equal than current court precedent allows, and, as BDistricting has convincingly shown, these very equal districts are readily attainable everywhere in the union, at every level

For the record, even though I am siding with the lower court in Tennant v. Jefferson County Commission and against the Supreme Court in terms of the policy outcome, I do think that, under current law, the Supreme Court’s decision was legally correct. Current law allows some balancing. This amendment, for reasons discussed in the article, does not.

13

Despite having a similar number of voters, Reds still have more “safe” seats than Blues under both methods. This is not because of gerrymandering, but because of geographic maldistribution, which is a fancy way of saying that too many Blue voters live in dense, intensely Blue areas. Their votes end up “wasted.” This is a decent argument for Blue voters to pursue proportional representation and/or ranked-choice voting, and a warning to them that their epistemic bubble is likely substantially stronger than Red voters’. It is also a whole separate topic that we are not delving into today.

NOTE: This post was originally published at my Substack. The footnote links go there instead of to the bottom of the page.

The first hard case and a possible response.

UPDATE 11 July 2022: The story that directly inspired this post appears to have been made up. In retrospect, it was sourced to a single abortionist with strong motivation to lie, several people like Michael Brendan-Dougherty immediately cast doubt on it after it (finally) started to circulate in the pro-life world, and I feel fairly stupid for having fallen for it. Nevertheless, there are enough preteen pregnancies in the United States each year—some of them legitimately reported by the news, most of them hidden by the curtain of abortion—that I still stubbornly think we must legislate to help in these cases. What a relief, however, to learn that we weren’t actually too late to help the (apparently fictional) person in this case.

UPDATE 14 July 2022: No, wait, hold up, looks like the original story was true after all. Original article follows:

***

The pro-choice side of the Internet has been lit up for nearly two full days with this horrifying story out of Ohio:

On Monday… Dr. Caitlin Bernard, an Indianapolis obstetrician-gynecologist, took a call from a colleague, a child abuse doctor in Ohio.

Hours after the Supreme Court action, the Buckeye state had outlawed any abortion after six weeks. Now this doctor had a 10-year-old patient in the office who was six weeks and three days pregnant.

…[F]or now, the procedure still is legal in Indiana. And so the girl soon was on her way to Indiana to Bernard’s care.

By any definition, legal or moral, a pregnant ten-year-old is a victim of rape.

I’ve seen very little discussion of this story on the pro-life side of the Internet. This surprises me, a little bit. We are still celebrating the fall of Roe, yes. Unfortunately, the world does not stop after a great life-affirming victory, and there are more lives to save.

We failed to save two lives here. We simply weren’t ready for it. (We should have been, shouldn’t we?) Now one child is dead, another deeply wounded, and the pro-choice side is using the incident as an argument against protecting life in general.

The problem, of course, is Roe allowed our society to solve a lot of extremely serious problems by killing a child. In fact, we got used to solving our problems that way. Even in generally pro-life red states, Roe was ubiquitous, and there was only so much we could do about that. So we structured big, important things—things like the modern welfare state!—around the assumption that some Really Big Problems would “take care of themselves,” as parents would scramble to find an abortionist and the rest of us wouldn’t have to deal with it.

The fall of Roe means we are now going to see those problems rise to the surface. All of them. Simultaneously. And, oh yes, the intensely pro-choice media will be very eager to point them all out. We are extremely fortunate to have passed trigger bans on abortion in 13 states, several of which make exceptions only when taking unborn life is necessary to preserving the life of the mother. But the voters will take those bans away if they decide that we are unable to deal humanely with hard cases like abortion in cases of rape or incest.

This demands quick, nimble problem-solving by pro-lifers… especially because the other side will be saying, “Why don’t we just kill the kid? It’s worked for the past fifty years, hasn’t it?” Our traditional response, “Love them both!” is a good start, but it’s not an adequate answer to a horrifying case like this 10-year-old (!) rape victim.

So what’s our solution to this one?

Obviously, nothing—nothing—can fix the crime the father committed against this child. There is no way to repair the trauma that has already happened. There is no way to avoid more trauma. (An abortion neither repairs trauma nor avoids it. Jesus, can you imagine giving a 10-year-old the abortion pill, misoprostol, and telling her to go home and brace for pain?) The father’s crime is heinous in part because we can never make the victim whole again.

Nevertheless, we must have something better than “let’s just kill the new baby quick as we can and pretend this never happened.”

My Proposal: Blue-Ticket Laws

Any person under the age of thirteen with a confirmed pregnancy is by definition the innocent victim of a serious crime.1 The State should do whatever is in its power to undo that damage, just as it would do whatever is in its power to restore stolen property to its rightful owner.

Any pregnant girl under the age of thirteen should therefore be issued a state “blue ticket” card upon confirmation of pregnancy. This would function like a Social Security card, and it would entitle the victim to all of the following state benefits:

• Free medical care until the age of 65.
• Free mental health care until the age of 65.
• Free child care for the duration of the child’s childhood.
• Free adoption services, if she / her family chooses. (I assume that they mostly will make this choice.)
• Obviously a ten-year-old is not capable of raising a child. If the ten-year-old does not wish to put the baby up for adoption, and her family is unwilling / unsuited to raising a child (remember: there’s a good chance the ten-year-old’s abuser was a family member), then the State should provide a surrogate foster home that can support this difficult situation.
• Free college for the victim at any state school (or any school in another state that establishes blue-ticket reciprocity).
• Free college for the victim’s child, under the same terms.
• Free medical care for the victim’s child until age 26.
• An old-school, no-strings attached cash welfare payment of generous size.

When this says “free” it means “absolutely free.” No co-pays, no student fees, nothing. This kid’s life is wrecked, and her child is starting off on the back foot, too. Let’s help them put the pieces back together by giving them what support we can.

These benefits should follow both the ten-year-old and her child, even if the child is given up for adoption, even if something happens to one of them. The reality is that a lot of pregnant ten-year-olds are going to naturally miscarry, or will face a medical emergency requiring immediate delivery—even before the fetus is viable. That’s unfortunate, but not victim’s fault, and the victim will still deserve to be made whole.

The one exception to this would be if the victim procured an elective abortion. This program exists to help heal the wounds of a crime of violence against an innocent. If the victim’s family chooses to heal those wounds instead by committing another crime of violence against another innocent, then they have opted out of the program’s objectives.

Otherwise, though, the blue ticket should be inalienable. Ideally, each state would have its own version of the blue-ticket law, and the blue ticket would thus be able to follow the victim and her child throughout the country.

The victim’s rapist, of course, deserves to be executed.

If you recoil at the idea of the State putting someone to death, good for you! I, too, think we should abolish the death penalty. However, some of you out there who are hesitant about the death penalty for the rapist think it’s imperative to give the death penalty to the rapist’s child (who had nothing to to with the rape!). A lot of very good people were the children of rape. Don’t kill them!

Since I’d rather not execute the father, I propose instead that he receive an appropriately lengthy term of imprisonment.2 During his imprisonment, he may be able to work for wages, but 95% of his wages will be given up as child support.3 If and when he is released, his child support obligations should remain unusually onerous, and his victim and child should become mandatory beneficiaries of his estate.4 This way, the rapist at least contributes to restitution for his crime, and his victim and her child may receive some benefit from the continuation of his miserable life.

Now, there are four reasons conservatives are usually shy about welfare programs as generous as this one. Three of the reasons are generally sensible and the last is not:

1. Expense. Giving people a lot of stuff for free is very expensive. Lots of people need help. If the State meets the needs of some, that means it can’t meet the needs of others. It therefore must be cautious before committing itself to being too generous.
2. Fraud. Giving people a lot of stuff for free means some people will try to lie their way into the program to get the free stuff, even though they don’t qualify.
3. Perverse incentives. Giving people in need a lot of stuff for free can encourage people to get needy and stay needy, so that they can continue getting the free stuff. The classic example of this is people who are on welfare choosing not to work, because they can live comfortably on welfare and working stinks. (This led to the end of cash welfare in the 1990s.)
4. Resentment. It is, unfortunately, all too human for us to resent giving people free stuff when we all have problems of our own.

None of these should be problems for this proposal.

Expense is not a concern here. These cases are extremely rare. Every single one of them is about to be a headline in every newspaper, but they are still very rare.

Roughly 75 Ohioans under the age of 15 receive abortions each year. (They do not report numbers for under-13s specifically.) Most of those 75 Ohioans are presumably not under the age of 13, and so would not qualify for the “blue-ticket” program as I’ve laid it out here. This seems pretty normal. In Minnesota, with half the population, it’s closer to 20 under-15 Minnesotans aborting per year, with some smaller number being under the age of 13.

We couldn’t afford this program for 75,000 people per year. Probably not even 7,500. But less than 75? Ohio’s state budget is $95 billion. They can pay for free health care, child care, and college for 75 (probably less) of Ohio’s daughters and their babies.

Fraud is not a concern here—or, at least, I haven’t figure out a way to scam the program. It may be possible for an Evil Parent to fake a pregnancy (and subsequent miscarriage) in a ten-year-old to get the ten-year-old enrolled in this program… but that’s going to automatically bring down a whole army of sex abuse investigators. Either they will find out what’s going on and arrest you for fraud… or they won’t find out what’s going on and arrest you for rape! Seems like a bad time.

Perverse incentives seem like a moot point for similar reasons. I know people have often said things like, “Nobody would ever deliberately have a baby out of wedlock just to get an extra welfare payment!” and those people have often turned out to be wrong… but there is a line people actually won’t cross, and I think raping a ten-year-old to get her enrolled in a special welfare program that benefits only her and the child (and then going to prison because, y’know, rape) is actually beyond that line.

Resentment is not a concern because the pro-life movement simply has to be better than that if we’re going to build a culture of life. Resenting welfare recipients can’t be part of what we’re about—and, to be fair, I don’t think it is a problem in the core pro-life movement. It’s more of an issue in the wider circle of right-leaning voters who consider themselves pro-life but aren’t activists about it, and this is just something we’re going to have to fix now that the post-Roe era has arrived.

One last question:

Why “Blue Ticket”?

I think the program needs a physical sign of registration. This is partly because trying to coordinate benefits through all these different programs is really hard. (Ask anyone who’s tried signing up for unemployment and WIC and TANF; it’s exhausting.) A physical card that says “nope, I’m not jumping through the hoops to apply for each specific program, I’m eligible for all them and here’s the proof” can cut through a lot of red tape.

The physical blue ticket is also partly because a vague constellation of available benefits is not always intelligible to the people who need to receive them—or to the public, which needs to see and understand this program so they understand that there is a coherent alternative to an abortion. Think of what a strong psychological bond the American people make with Social Security, and how much of that is simply because you get an actual physical card at birth.

So don’t just enact the program; give the beneficiaries a blue ticket. Call it the blue-ticket program.5 Let people know that’s how you’re trying to address these crisis cases.

Haste Necessary

The blue-ticket concept could work. It’s an answer to a disastrous situation that doesn’t fix everything (nothing can) but which can at least help, in a way that doesn’t destroy any more lives, and which seems to do a better job of helping than abortion does.

What is it missing? What other needs can we meet that aren’t being met in this proposal? Remember, these cases are very rare, so we can afford to be generous—and people have needs other than financial needs as well.

And, more urgently: what other proposals are on the table? Surely I’m not the only pro-lifer talking about this. The pro-choicers aren’t going to let us forget about it: here’s Gov. Kristi Noem giving a correct but clearly inadequate reply when pressed about it on CNN.

Will pro-life leaders be able to do something (with this proposal or some other one), so that our society finally (fifty years late) has a workable, humane alternative to getting an abortion and trying to memory-hole the rape? I believe that there are a few pro-life legislators and lobbyists who read De Civitate, at least occasionally. If you’re one of them, I’d love to hear from you.

I know it seems unfair to return to the battlefield so soon after the exhausting work that brought us this far. On the other hand, we did have decades to do something about this, and we are all out of runway. We’re now at the point where, if we don’t act now, ten-year-olds will suffer without support, the voters will not let us keep our hard-won gains, and a whole lot more people will die.

So let’s get cracking, as we always do.

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UPDATE 4 July 2022: In the comments, Harmon Dow suggests purple, the color that has come to represent looking past partisanship to mutually agreeable solutions. I have to agree that’s a great idea.

PHOTO CREDIT: Photograph by Lesley Show entitled “Ten Year Old Climbing Tree.” Shared without changes (other than resizing) under a Creative Commons Attribution 2.0 Generic license.

1

Some states say 14. Some say 12. Some have a close-in-age exception where, for example, if two 14-year-olds have “consensual” sex, neither has committed a crime. Others do not.

I picked 13 here because that’s Ohio’s lowest age limit. All sex below that age is criminal, even if the offender did not know the victim’s age, although the law is not always enforceable if both victim and perpetrator are below the line.

2

This is complicated in rare cases where the person who impregnates the underage victim is also a child—for example, when a twelve-year-old girl conceives the child of a thirteen-year-old boy… or even an eleven-year-old boy. The father in these cases may or may not be a rapist, depending on circumstances, and can’t be tried like an adult. That doesn’t generally change the need to provide for the mother and her child, however, which is one reason why this plan doesn’t actually depend on the rapist’s wages but can merely be supplemented by them.

3

It’s tempting to make it 100%, but, if you do that, the rapist may not work at all. People need incentives to work, even in prison.

4

There are some states where rapists still have parental rights. Naturally, these should be terminated, but that’s a separate topic I’ve actually been meaning to write about for years.

5

You can’t use green (even though it’s the obvious choice: the ticket “green-lights” you for benefits), because green is currently associated with the abortion-rights movement. You can’t use yellow or gold because it’s too close to the “golden ticket” prize in Charlie & the Chocolate Factory and the idea that a child rape victim has won some kind of prize is abhorrent. You don’t want to use red or pink because both have pretty negative connotations “red tape,” “pink slip”). Blue seems fine. Hence, blue ticket.

A Very Late Dashed-Off Daily Dobbs upDate

NOTE: This post was originally published at my Substack. The footnote links go there instead of to the bottom of the page.

Days ago, I posted some initial reactions to “The Rest of Dobbs.” It was my sincere intention to post the rest the following day, but I’ve simply been slammed at my day job. I apologize for the delay.

Today, finally, we talk about the Thomas concurrence, and then, at last, that long, juicy dissent.

Thomas Steals the Headlines

I was tempted to call this section The Thomas Concurrence™, but I already used that joke for The Kavanaugh Concurrence™ in the last installment, and it wouldn’t be accurate anyway. There is no Thomas Concurrence™.

There are three.

Justice Clarence Thomas has three standard concurring opinions, which he files over and over (and over) again:

CONCURRENCE NUMBER ONE: “The majority’s decision in this case depends on Precedent X. I think Precedent X is totally wrong possibly open to question in future cases. However, since the issue was not raised by either party, I agree that Precedent X sufficiently answers this question and concur with the Court’s outcome on that basis.”

See, for example, Thomas’s concurrence in the abortion case Gonzales v. Carhart (2007) (specifically where he mentions leaving the Commerce Clause for another day) and his concurrence in Troxel v. Granville (2000) (leaving substantive due process for another day). Speaking of substantive due process…

CONCURRENCE NUMBER TWO: “God dammit, the Court’s gone and applied substantive due process again, and they don’t even have to, because they could reach the exact same outcome by doing the proper originalist thing: overturn The Slaughter-House Cases, treat the due process clause as procedural, and incorporate the Bill of Rights through the Privileges & Immunities Clause instead. We reached the right outcome but it’s so dumb that we’re still doing it through substantive due process.”

Everyone knows that the Bill of Rights—which used to only apply to the federal government—now applies to all governments, even state and local governments. (This is called “incorporation” of the Bill of Rights.) The Constitution says “Congress” can’t violate your freedom of speech, but, thanks to incorporation, your City Council can’t, either.

This is because of the 14th Amendment. But which part of the 14th Amendment?

In the late 1800s, the Supreme Court was trying to minimize the 14th Amendment, so they ruled against incorporation in a nonsensical farrago called The Slaughter-House Cases. This blocked incorporation through the most obvious clause, the “Privileges & Immunities” clause. Later on, the Court realized it really did think the 14th Amendment incorporated the Bill of Rights, but, instead of overturning Slaughter-House, they left it in place and just found another (really bizarre) way of incorporating it: through the “due process of law” clause. All incorporation since then has been done through this “substantive due process” logic, and it’s all frankly quite silly. Thomas certainly thinks so: he keeps writing about it!

See, for the most magisterial example of this concurrence, Thomas’s concurrence in McDonald v. Chicago (which is actually well worth reading).

CONCURRENCE NUMBER THREE: “Stare decisis is bad and it should feel bad.”

Stare decisis is the doctrine that the court should follow its own precedents, even if those precedents are questionable. This sacrifices some accuracy in the law for the sake of stability. Though its exact limits are frequently debated, stare decisis is pretty much universally understood today to be a cornerstone of the rule of law.

Justice Thomas’s most contrarian take is that stare decisis is not just a bad idea, but that it is actually unconstitutional, at least when used in cases that interpret the Constitution. If the Supreme Court interprets a statute wrong, Congress can (at least theoretically) pass a law to fix it. If the Supreme Court interprets the Constitution wrong, there’s almost nothing anyone can do, short of amending the Constitution. By upholding that incorrect interpretation later on under stare decisis, the Court (which is sworn to uphold the Constitution) will have, perversely, nullified part of the Constitution.

The now-canonical version of the stare-decisis-is-bad concurrence is Thomas’s concurrence in Gamble v. United States, but he’s been writing versions of this concurrence for his entire career.

I have to confess that I haven’t actually read Gamble, so can’t recommend for or against it. But I will say that Thomas has always been the most clear-eyed member of the Court, free of both cant and constraint. He is, for my money, smarter than Scalia (although Scalia was the better writer). You may come away from a Thomas concurrence saying, “That was dumb. I’m glad he’s the only one who thinks that.” You’ll rarely come away saying, “golly gee, that was a waste of time.” (This essay by someone who team-teaches with Justice Thomas sheds interesting light on the matter.)

Anyway, that’s a whole lot more about Justice Thomas’s overall jurisprudence than you really needed! What’s it have to do with Dobbs?

Thomas’s Dobbs concurrence is #2: Down With Substantive Due Process. (Roe was a substantive due process case.) This concurrence adds nothing to his long record of Down With Substantive Due Process concurrences. No justice joined his opinion, which suggests that his view on this is as marginalized on the Court today as it has been lo these many years.1 By most standards, this is a pretty boring Thomas opinion.

That’s a surprise. As soon as we found out that Alito was writing the majority, it was a given that Thomas would be writing separately. I predicted weeks ago on this blog that Thomas would be writing separately to suggest the correctness of Robert George & John Finnis’s view that fetuses are actually “persons” within the meaning of the 14th Amendment, and that abortion is therefore unconstitutional. I made this prediction partly because of Thomas’s obvious passion to end the oppression of the unborn. (He frequently associates that passion with the struggle to end the oppression of Black people, a topic near and dear to his heart.) But I also just thought it would be weird for Thomas to write such a bog-standard Thomas concurrence in such a momentous case.

Thomas seems to have known better than I. His surprisingly unsurprising concurrence grabbed all the headlines. Thomas’s one-vote, totally uncontrolling concurrence had no legal effect, but the threat to substantive due process rights frequently shared above-the-fold headline space with information about Alito’s controlling majority, and trumped the coverage of both Kavanaugh’s concurrence (which matters a lot because he’s the swing justice) and the joint dissent (which matters more than the Thomas concurrence because 3 justices > 1.) I think this coverage was partly because nobody at CNN knows anything about Thomas’s longstanding jurisprudence, but mostly because Thomas’s concurrence seemed to confirm many of the progressive establishment’s worst fears: the conservatives are coming for gay marriage, contraception, and the right to consensual fornication!

This is because Thomas said that Obergefell, Griswold, and Lawrence were substantive due process cases (true enough) and that they therefore should be overturned, with each of those rights reconsidered in light of the Privileges & Immunities clause instead. Thomas considers the majority opinion’s attempt to draw a firewall between Roe v. Wade and the rest of the substantive due process cases flimsy and unconvincing, and calls for further examination in future cases.

The thing is, Thomas is alone on this. More than alone: one of the reasons for Kavanaugh’s concurrence seems to have been specifically to reject Thomas’s line of thinking extra-hard—after the Alito majority already rejected it thoroughly. The Alito majority is a substantive due process decision to its core, as I have written elsewhere, animated by certain originalist motives but fundamentally accepting the whole body of substantive due process precedents.

Who’s Afraid of Clarence Thomas?

Still, this seems as good a place as any to address the burning question many people are worrying about: should we believe the Court’s protestations of innocence? Will they overturn Obergefell, Griswold, and/or Lawrence, thus threatening people’s same-sex marriages, contraceptive access, and adventures in fornication? After all, the majority opinion says that the only constitutional rights available through the 14th Amendment are those that are “deeply rooted in our nation’s history and traditions.” Rights to same-sex marriage, contraception, and fornication are not deeply rooted in our nation’s history and traditions. In fact, it’s quite the opposite! At least the first and the third were criminalized for much of our national history, and contraception wasn’t exactly smiled upon!

This “deeply rooted” test is legally correct. It is not a standard Justice Alito invented. It dates back to the beginning of substantive due process cases, notably in the Palko and Snyder cases of the 1930s. If you care about precedent—and hoo boy I’ve been hearing from a lot of people who disagreed with the Court this week that they care deeply about precedent—then you have to follow Alito’s “history and traditions” standard. Which means Obergefell, Griswold, and Lawrence need to be evaluated under that standard.

For that reason, I disagree with the majority of conservative commentators rushing to reassure Americans that their contraceptives and their same-sex marriages are perfectly safe. I don’t think that’s true. If Griswold, Obergefell, or Lawrence come before the Court again, then I think each case will fall—and, strictly as a legal matter, each case should. In my view, all three were errors of law. The Constitution is silent on the questions of contraception, marriage definition, and sexual morals. That means those questions can only be answered by the States and their voters, in the democratic arena.2

The best protection for these cases is the fact that nobody particularly wants to challenge them. My family does not use contraception, but I don’t think it would be a good idea to ban it. I would like to see Griswold overturned because I think it was a mistake and mistakes bug me, but I wouldn’t want to see anyone actually take advantage of Griswold being gone! The question of regulating contraception should belong to the voters… and the voters should say, “No thank you! We don’t want to regulate this!” As long as everyone else feels the same way, there will be no challenge, and it can’t be overturned.

Yet we’ve already seen that Obergefell does not enjoy universal acceptance. So we cannot count on popularity as the sole firewall.

The second-best protection for these cases is the fact that the courts don’t seem to want to take them… and the Supreme Court, at least, doesn’t have to! The Supreme Court routinely dodges straightforward legal questions that, politically, it simply doesn’t want to deal with. See, for instance, the decade of important Second Amendment cases Kennedy and Roberts refused to hear, leading right up to Bruen, decided last week. Also, the Court routinely dodges straightforward legal questions for political reasons even after those questions have arrived properly on the Court’s merits docket! See, for instance, Masterpiece Cakeshop v. Colorado, the “Christian cake-baker” case, where the Court rather pointedly ruled on a technicality rather than reaching the central question.

The third-best protection for these cases is the argument that there really is something fundamentally different about the right to an abortion, just as the majority opinion claims. With the rights of same-sex marriage, contraception, and fornication, you can at least argue that there is a broad right of privacy and personal autonomy in the American tradition. Call this the idea that consenting adults can do what they want as long as nobody else gets harmed… which (you could argue) implicitly encompasses all three of those rights (even if we didn’t realize it until decades after the 14th Amendment passed). It’s not a terrific argument, but it’s an argument.

Abortion is not like that, though. As lodestar Sherif Girgis explains, abortion is a case where somebody else gets harmed: the fetus. Whether or not you agree that the fetus is a full person with full constitutional rights, the Supreme Court has repeatedly recognized that society has a strong, sometimes compelling, interest in protecting that life (or “potential life,” as people who don’t know biology sometimes mistakenly put it) from harm.

The Court is at least kind of thinking along the same lines as Girgis. Dobbs rejects the idea that abortion itself is deeply rooted in our nation’s history and tradition, but it tries to section that rejection off from a broader rejection of the right to physical autonomy (although it has to blow some holes in Casey’s idea of bodily autonomy to get there, for example, in section II.C.1). Thomas thinks that sectioning-off is weak. The dissent thinks it’s a joke, even a prevarication. I think it’s better than a joke, but I still find it unconvincing. Griswold was wrong, and a Court that squarely faces that question again must say so.

All of this is a very long and careful way of saying that, while I do not think it’s very likely that the Court will return any of these issues to the democratic process, I do think it is (remotely) possible. It probably needs one more Thomas-style conservative on the Court to have any practical legs, and, even then, it’s a long shot, but it’s possible.

I must then acknowledge that, for some people, even a slim risk poses enormous danger. I am no fan of Mark Joseph Stern, but it is worth considering this from his perspective:Mark Joseph Stern @mjs_DCIf you are insisting that Dobbs does not threaten Obergefell and you have never once had to worry that the government would deem your spouse and children legal strangers, I need you to sit the fuck down and shut the fuck up.June 28th 2022489 Retweets2,880 Likes

If I were personally in a same-sex civil marriage (or considering entering one) in a state where the new definition of marriage remains unpopular with voters,3 I would personally be taking a look at my relocation options five or ten years down the line. I wouldn’t be putting those options into effect, yet.4 But Dobbs has given such people reason to be nervous. I don’t want to gaslight them by saying there’s absolutely no way the Court will ever undo Obergefell. It’s very unlikely, but it’s within the realm of the plausible. (I don’t think contraception users or fornicators have anything comparable to worry about.)

The Joint Dissent

Let’s break this up a little. I think the joint dissent (authored by Kagan, Breyer, and Sotomayor) can be divided neatly into two parts: the honest dissent and the dishonest dissent.

I’m not really sure that I have much to say about either of them, having already said much of it in my prior analysis of Alito’s majority. But let’s take a gander.

The Honest Dissent

The first part of the dissent is, firstly, a straightforward defense of the constitutional right to abortion.

At a deeper level, however, it is a defense of an entire way of doing law that was born in the early 20th Century, thrived through much of it, and now appears to be breathing its dying gasps. That way of doing law is “living constitutionalism.”

Under living constitutionalism, judges are entitled to interpret vague phrases in the law according to the beliefs and values of present-day society. (Under originalist-textualism, judges must interpret vague phrases according to the textual meaning as understood by the generation that wrote the phrase.) The last time I explained this, I used the example of the 8th Amendment, which forbids “cruel and unusual punishment.” Does this mean the same thing today as it meant when it was ratified, or has its meaning evolved as our society’s understanding of cruelty has evolved? If it means the same thing today, then the death penalty is clearly constitutional. If its meaning has evolved, then the death penalty may be unconstitutional.

Living constitutionalism has several problems:

• First, it turns the law from a free and democratic decision made through a definite process into a zombie animated by the “spirit of the age,” shambling forward and transforming itself without the People getting to vote on it.
• Second, it militates strongly against stability in the law, since the actual meanings of the words are constantly shifting as society grows. (It is very ironic to be a supporter of stare decisis when your living constitutional legal theory makes stare decisis impossible by definition.)
• Third, the people who actually decide what “modern values and beliefs” should be applied (and which ones should be ignored) are always unelected judges, and “modern values and beliefs” always (weirdly!) turn out to match up perfectly with the judges’ values and beliefs—which the judges then impose on the whole country, with unprinted “penumbras” in the Constitution as their justification.
• Fourth, the Constitution suggests this evolutionary theory is wrong because the Constitution already provides a mechanism for expressing society’s evolving views and values: Article V, which allows The People to amend the Constitution by overwhelming popular mandate. (Consider: If the death penalty is truly “cruel and unusual” by “modern standards,” why can’t those of us who oppose it get an amendment passed expressly saying so? Because our view is not actually shared by modern society; it’s just elite opinion.)
• Fifth, no one actually seems to really believe in living constitutionalism, as Michael Stokes Paulsen argued in “Is Bill Clinton Unconstitutional?” (showing that living constitutionalists never interpret the requirement that the president be 35 years old according to an evolving standard reflecting modern beliefs and values. The idea that text in the Constitution stands “not so much for what it says, but for the presupposition… which it confirms” is pretty much limited to situations where it can get elite opinion enshrined as constitutional doctrine without the hard work of persuading actual voters. Roe v. Wade, which overturned deeply-rooted state laws in the overwhelming majority of states on flimsy reasoning, is the ur-example of this impulse.

In short (as I have argued pretty well elsewhere), living constitutionalism tends to eventually boil down to a jurisprudence of ipse dixit: the law is whatever five judges think it should be, regardless of what the law actually says, because those five judges said so. Abortion jurisprudence, especially, has been governed by ipse dixit since its inception. (Seriously, you should read the article I just linked.) Originalism ain’t perfect, but it (pragmatically) offers at least some constraints on this freewheeling judicial dictatorship, and it (theoretically) seems to better reflect what laws in a rule-of-law society actually are.

Ah, but here I’ve gone made my case against living constitutionalism instead of letting the dissenters make their case in favor. I apologize. The dissenters are emphatically in favor of interpreting the Constitution according to “new societal understandings and conditions.”

After all, at the time the 14th Amendment was ratified, women were not among its authors nor among the full citizens it generally protected. The dissenters argue that the practice of the time (abortion was widely banned) should be ignored in light of our evolving understanding (reflected in other laws, including our Equal Protection clause jurisprudence) that women are equal citizens. This understanding should then lead us to embrace an interpretation of the 14th Amendment that incorporates modern values, including the value that people (especially women) are free to “make private choices about family matters, child rearing, intimate relationships, and procreation.”

Whence this value? Who voted to put it in the Constitution? That’s the point of living constitutionalism: nobody had to vote on it! It’s just there now. The Equal Rights Amendment would have enshrined a broad version of this rule explicitly in the Constitution. The ERA failed, after a titanic, very public, political battle, in large part because it was written so broadly that opponents feared judges would use it to establish a right to abortion. The American people did not want to do that, so the ERA did not enter our Constitution. The joint dissent views this entire political struggle as a pointless sideshow, because the 14th Amendment already began to include the ERA within itself (including that right to abortion!) as soon as the principles supporting the ERA passed some ineffable threshold of public (or at least elite) support.

Anyway, the dissent argues that this putative right to “private choices about procreation” is essential to establish women’s even more fundamental “right of self-determination.” Pregnancy and parenting carry substantial risks and burdens, including substantial health risks. The dissenters consider contraception and/or adoption, but find both insufficient to deal with those risks. Since mothers have a right to self-determination, and there are no acceptable alternatives, mothers’ right to self-determine must necessarily include a right to abortion.

A “balance” may be struck between the fetus’s rights and the mother’s rights, but no more than that. Unsurprisingly, the dissenters think the balance should be struck roughly where Casey and the Carhart cases struck it: a mother can be discouraged from aborting, but never prevented, at any stage of pregnancy. (Whence this judgment? Based on this opinion and on Casey, it’s what their gut tells them is the right balance. Ipse dixit.) This kind of interest-balancing is, today, more often considered the province of elected legislators—but living constitutionalism did a lot of interest-balancing in its heyday. The dissenters think that was a good thing. What do we have equitable judges for if not to judge equitable balances based on precedent and their own good horse sense?

“That does not mean anything goes,” the dissent insists. However, it provides no evidence for this claim. No limiting principle is offered—because no limiting principle on this method of lawmaking is possible. (I will link, one last time, to my Law & Liberty article about this.)

The dissent thinks Roe and Casey were correctly decided. It thinks this not because Roe and Casey can be justified under the 14th Amendment’s original public meaning, but because they think a stingy view of fetal rights is good public policy. They think their preferred public policy is inextricably tied to principles they have decided are part of the warp and woof of modern American society, and which they therefore read into the 14th Amendment, even though that Amendment is from 1868. The first half of the dissent is a pleasingly forthright defense of this hoary living constitutionalism.

At least, it’s a defense of living constitutionalism as long as progressives are the ones ipseing the dixit. As much as progressives dislike originalism, one has to imagine that, if Sohrab Ahmari finds his way into winning a popular election and explicitly interprets the “free exercise of religion” to exclude all false religions (meaning all religions other than Catholicism), the Court’s progressives would not look so fondly on this principle, even though it is, legally speaking, the same principle.

The Dishonest Dissent

The other half of the dissent is a really aggressive misinterpretation of stare decisis. Having argued that Roe and Casey were correctly decided and should be upheld for that reason alone, the dissenters argue that, even if Roe and Casey were wrong, they should still be upheld under stare decisis.

Defending stare decisis in a particular case is often like defending the Alamo. It’s the last refuge of someone who is on the brink of losing the argument, and puts the defender in the unenviable position of saying, “Even if this precedent is legally wrong, even if this precedent is causing harm to one of the parties to this case, in contravention of the Constitution and the laws of this country, we should still uphold the precedent—and the injustice it causes—because it would be too messy to do the other thing.” Still, the argument can be made. Sometimes, it needs to be. Unlike Clarence Thomas, I think stare decisis is important.

But the version of stare decisis described here in this dissent is simply wrong. They severely distort the historical record to make their case, and cursory examination shows that the rule they propose here for overturning precedent is gravely inconsistent with the Court’s own precedents on overturning precedents!

The dissenters argue, basically, that the Court should overturn precedents only if at least one (ideally more) of the following conditions is met:

1. The precedent has been rendered out of step with (or effectively abrogated by) in contemporary case law in light of intervening developments in the broader doctrine.
2. The basic premise of the precedent has been undermined by fundamental factual changes.
3. The precedent being overruled “occurred very close in time” to the overruling decision, so did not engender substantial reliance and could not be described as having been “embedded” as “part of our national culture.”

The majority opinion points out, indignantly, that this doctrine (if honestly followed) would have meant that (after an initial “very close in time” period when Plessy could have been overruled), Plessy v. Ferguson could not have been overruled until sufficient time had passed for new precedents to undermine it and/or fundamental facts about segregation to change. (It’s not enough for a new court to put a new emphasis on already-known facts; those facts need to have changed this the initial decision.) This view of stare decisis would mean that Plessy could not have been overruled between roughly 1905 and 1940, no matter how egregiously wrong Plessy was. (And it was really wrong.)

The dissent offers a lot of terse replies to this point, hurled rapidly at the wall one after the other to see what sticks:

• The “I know you are but what am I?” defense: the dissent doubts that Plessy could have been overturned on originalist grounds so the fact that it seemingly couldn’t be overturned on stare decisis grounds, either, is no demerit.
• The “it could have been overturned quickly” defense: the dissent notes that, if Plessy had been overruled in the first few years of its existence, without a change in the Court’s personnel, that would have been okay. Of course, that was never going to happen; overturning Plessy required a change in the Court’s personnel, and this was a national moral imperative.
• The “but bad things are bad” defense: the dissent argues that it was okay to get rid of Plessy, even against the stare decisis rules, because Plessy was bad and Roe was good. Plessy hurt people, but Roe/Casey “protected individual rights.” This, of course, is question-begging: if the majority agreed that Roe/Casey were good, no stare decisis defense of them would be necessary. (Also, they were not good! Thomas points out that Roe/Casey killed 63,000,000 humans!)
• The “bare majority” defense: the dissent suggests that unanimous decisions like Brown may overturn precedent (even against “the rules”) while 5-1-3 decisions like Dobbs must not.

A larger difficulty becomes clear in the dissent’s defense of West Coast Hotel v. Parrish. West Coast Hotel, decided in 1937, overturned Lochner v. New York, a 40-year-old substantive due process case that had granted an individual “liberty of contract,” which rendered minimum wage laws and other labor regulations unconstitutional. Next time somebody tells you the Supreme Court has never overruled an individual right, remind them of Lochner! Not only did they overrule an individual right, but it was FDR’s New Deal judges who did it! (They were right to do so. Lochner was wrong like Roe.)

The dissent insists that this was justified by the “factual development” of the Great Depression, “which disproved Adkins’ assumption that a wholly unregulated market could meet basic human needs,” a development which was “common knowledge through the length and breadth of the land” (so the West Coast Court alleged). It was also justified by “legal developments” which had weakened Lochner, including some decisions which had refused to extend it in certain contexts, and certain “statements in those decisions” which were “impossible to reconcile” with precedent.

But, if that’s our low low standard for factual and legal developments, Roe has emphatically gone through the same process! I could lay out the evidence about sonograms, falling abortion rates, changes in how America protects women’s autonomy… but the majority opinion already does a pretty good job of this! Go read it! The dissent dismisses all this as weak tea, but without acknowledging that the evidence used to overturn precedent in some of their favorite cases (including West Coast Hotel) was much weaker tea! As for legal developments, I wrote years ago that Roe was not only undermined several decades ago—it was outright overturned. The decision that overturned Roe? None other than Planned Parenthood v. Casey. This is not a remotely unusual interpretation of Casey. Both pro-lifers and pro-choicers have adopted this view at various times, to certain legal advantage. Casey was itself a drastic legal development in the history of abortion rights—one which drastically narrowed those rights.

This doesn’t even mention the federal Partial-Birth Abortion Ban Act, Gonzales v. Carhart, the multiplicity of state and federal feticide laws, the intense legal backlash in favor of at least limited fetal rights, and the generally growing awareness of the unborn and their interests (which I recently discussed in the context of tax law). If Lochner fell because of “legal developments,” certainly Roe has had enough developments to do the same.

One of the decisions the dissent talks about in glowing terms (and which Breyer actually voted for at the time), Lawrence v. Texas, overturned a major 1980s decision called Bowers v. Hardwick. Lawrence’s stare decisis analysis was barely a couple pages long. (The stare decisis analysis in the Dobbs majority runs for 27 pages.) Scalia made fun of Lawrence in his dissent at the time for violating all the “rules” of stare decisis. Lawrence overruled Bowers because there were insufficient “reliance interests,” because it was not consistent with the values expressed in Casey and Romer v. Evans, because it was not consistent with European practice (neither is our abortion law; ask the German Constitutional Court), and because its reasoning was (in the Court’s view) egregiously wrong. The main reason Bowers fell, though, is because the people who voted for Bowers left the Court and new personnel joined the Court.

Yet we find Lawrence listed in an appendix to the dissent as a case where overruling the precedent was justified “in light of developments in the legal doctrine, as well as changed social understanding of sexuality.”

I mean, come on. Any rule of stare decisis weak enough to allow Lawrence because society liked gay people better after 20 years (which is true enough) is weak enough to allow two or three Dobbses because sonograms humanized fetuses for 50 years. I can’t believe the dissenters believed otherwise. They really did think Roe/Casey were correctly decided, but the stare decisis rule they propose is neither supported by its own precedents, nor by the dissenters’ own actions in other cases. It is a special good-for-this-ride-only rule of stare decisis designed especially and exclusively to preserve abortion rights against the clamor of the voters and the silent screams of the unborn.

That’s It

I’m done. I hope the extra length of this (final?) Dashed-off Daily Dobbs upDate made up for its lateness. Despite the extra prep time, I’m still not doing a good job editing it, so it preserves that dashed-off flavor!

1

This is frustrating to me, because Thomas really sold me in the McDonald concurrence. I used to oppose all incorporation, but Thomas convinced me that Privileges & Immunities incorporation was correct. Make it law!

2

Very possibly my favorite dissent of all time is Potter Stewart’s pithy rebuttal to Griswold. It begins:

Since 1879, Connecticut has had on its books a law which forbids the use of contraceptives by anyone. I think this is an uncommonly silly law. As a practical matter, the law is obviously unenforceable, except in the oblique context of the present case. As a philosophical matter, I believe the use of contraceptives in the relationship of marriage should be left to personal and private choice, based upon each individual’s moral, ethical, and religious beliefs. As a matter of social policy, I think professional counsel about methods of birth control should be available to all, so that each individual’s choice can be meaningfully made. But we are not asked in this case to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the United States Constitution. And that I cannot do.

Read the whole thing.

3

Really I’d be at least a little nervous in any state where opposition exceeds 30%, which is quite a lot of them—or at least it was in 2017, when I got that poll from.

4

It is worth noting that I am big on making plans for slim but extreme risks. I’m one of the few people I know who has a decent supply of water, dried food, and a weather radio in the basement, in case of nuclear attack. I stocked up on toilet paper for Covid-19 in late February 2020, fully three weeks before the Great Toilet Paper Shortage of March 2020. (Don’t worry: I figured stores would only be closed for a few weeks, so I bought only bought one extra bag. I wasn’t hoarding.)

I also have a list of countries I might consider fleeing to with my family in the event that religious liberty in this country collapses or full-on persecution begins. If Mrs. Clinton had won the 2016 election, I planned to flesh that list out some more by looking into their immigration rules and jobs markets.

In other words, I am not giving out any advice I haven’t taken myself, and I am just a tiny bit paranoid.

Dobbs & some piping hot takes on the Emancipation Proclamation.

NOTE: This post was originally published at my Substack. The footnote links go there instead of to the bottom of the page.

On 20 October 1862, shortly after word of the Emancipation Proclamation reached Europe, the Reverend G. Haven, Jr. (visiting Rome at the time), sent the following letter to the abolitionist newspaper The Liberator, which was run by my favorite abolitionist, William Lloyd Garrison:

We cannot stop without one word of rejoicing at the approach of the hour of deliverance and exaltation of America. The Proclamation is as life from the dead. It will be known in history without any adjective, as The Declaration and The Constitution are known. To leave American the greatest of slaveholding nations—to find it on our return, after a brief absence, almost universally free, it seems well nigh miraculous. It is miraculous! “It is the Lord’s doing, and marvellous in our eyes.” How the souls of the martyrs of this faith, from Lovejoy to John Brown, must exult as the tidings go heavenward! How the greater martyrs that have perished by myriads in their Southern dungeons will exalt and magnify Him in whose hand are the hearts of rulers and people, and who turneth them as the rivers of water are turned! For his right hand and mighty arm have gotten him the victory.

Immediate and unconditional emancipation—the first and ceaseless cry of William Lloyd Garrison—emancipation with the inevitable ultimate of arming the liberated slave to preserve his freedom—the doctrine and practice of Capt. Brown—and this by the President, supported by Governors and people! How small and feeble appear the governments of Europe beside such decrees! No nation here has a record a millionth part as grand. Gladstone may flatter the slaveholders, and fool his own people by saying that Jeff Davis has created a nation. Abraham Lincoln has emancipated a nation. True, the work is not ended. The War of Independence had not ceased when Independence was declared. But it seems impossible now that any other result should happen than the extinction of the slaveholding clans, and the elevation of black and white to one level and one destiny.

Even if compelled to abandon the Southern territory, we shall at least make the United States what it never has been before—everywhere free. But we shall not allow these our fellow-citizens to be reduced again to bondage. The preservation of their liberty and of our own hangs together. The new life will clothe our armies with ideas; make Generals men as well as soldiers, and ensure us ultimate and glorious victory. Here, amid the ruins of the greatest of nations, destroyed because it would not destroy slavery, I rejoice in this act by which America secures for herself a grander, long, and infinitely better dominion than that of Rome.

This is beautiful, and true. It’s the hottest of hot takes, and, 160 years later, it makes my heart sing.

However, Rev. Haven’s reaction was uncommon! The Liberator was a radical right-wing newspaper, akin perhaps to The American Spectator today. Roughly one-half of America was enraged about the Emancipation Proclamation:

Let me be very clear: This ruling changes nothing in Minnesota today, tomorrow, or as long as I am governor. We will not turn back the clock on reproductive rights. Minnesotans deserve to decide for themselves when to make the most important decision of their lives – whether or not to become a parent. Today, that fundamental right to personal freedom and privacy – a right that we have held for half a century – was overturned….

I will exercise my discretion to decline requests for the arrest or surrender of any person charged with a criminal violation of a law of another state where the violation alleged involves the provision of, assistance with, securing of, or receipt of reproductive health care services…

Oh, no wait, sorry, let me stop there. I pasted in the wrong file. That’s what Minnesota Governor Tim Walz said in response to Dobbs. Here’s the anti-Emancipation reaction I meant to paste:

We may well leave it to the instincts of that common humanity which a beneficent Creator has implanted in the breasts of our fellowmen of all countries to pass judgment on a measure by which several millions of human beings of an inferior race, peaceful and contented laborers in their sphere, are doomed to extermination, while at the same time they are encouraged to a general assassination of their masters by the insidious recommendation “to abstain from violence unless in necessary self-defense.” Our own detestation of those who have attempted the most execrable measure recorded in the history of guilty man is tempered by profound contempt for the impotent rage which it discloses.

So far as regards the action of this Government on such criminals as may attempt its execution I confine myself to informing you that I shall unless in your wisdom you deem some other course more expedient deliver to the several State authorities all commissioned officers of the United States that may hereafter be captured by our forces in any of the States embraced in the proclamation that they may be dealt with in accordance with the laws of those States providing for the punishment of criminals engaged in exciting servile insurrection. The enlisted soldiers I shall continue to treat as unwilling instruments in the commission of these crimes and shall direct their discharge and return to their homes on the proper and usual parole.

That was written by Jefferson Davis, the “President” of the insurrectionist pseudo-government which styled itself the Confederate States of America. You can see how I got these two documents mixed up.

But it is unsurprising that the enemies of a great swath of humanity remained enemies of those humans after the law recognized that those humans had rights.

What I found much more interesting was how many Northern papers reacted negatively to the Emancipation Proclamation. These are papers that nominally approved of the Union cause in the Civil War, but found the actual abolitionist movement yucky and dangerous. Here, for example, is the pro-Union, anti-Lincoln New York Journal of Commerce:

In a pluralistic democracy like ours, the convictions of a minority cannot be made into law over the will of the majority. This means that, for those opposed to abortion, there is no way around the hard work of persuasion and the necessity for compromise. But the Trumpified GOP with which most of the prolife movement has aligned itself in recent years has no time for persuasion or compromise, and no interest in attending to the uneasy ambivalence many people feel about this issue.

Oh, shoot! Sorry! I’m really at odds and ends today, aren’t I? That’s Commonweal’s editorial on “The End of Roe.” Here is the New York Journal of Commerce on the Emancipation Proclamation (emphasis in original):

Mr. Lincoln has yielded to the radical pressure, and issued a Proclamation. It is, on the whole, a curious document. We have no inclination to-day to discuss its wisdom, or the probabilities of the effect it will produce in rebeldom. We have only anticipations of evil from it, and regard it, as will an immense majority (!!) of the people of the North, with profound regret. …The only result which an adherence to the principles of this Proclamation can lead to is a continuation of the war, in a dark future, in which the end is beyond our vision.

Again, you can see how I stumbled. “Pro-Union, anti-Lincoln” rhetoric scans a whole lot like “pro-life, but anti-MAGA-pro-lifer” rhetoric. I like David French, but when I see him write a headline like, “Roe is Reversed, and the Right Isn’t Ready,” I cannot help recalling the Boston Post’s insistence that, while emancipation might be a good idea, America was not yet ready for it, and “thus [President Lincoln should] defer the proclamation in question until at least the year 1900.” What’s 37 more years of unrelenting mass human suffering and cruelty if it gives us time to build support networks and popular sentiment?

French, to his credit, does not go so far as that. Others have:

The Emancipation Proclamation has been sanctified in memory. Virtually everyone in America today supports it as a moral triumph and a legal truism. We all like to imagine that, had we been there, we would have been on the side of the presidential proclamation that ultimately saved so many people from torment and death. But this fantasy is because we are have little understanding of who opposed the Proclamation, why they did so, and how very much they were like us. Slavery, like abortion, was an Evil That Ran Through Everything, a sin so deep it caught everyone in its current one way or another.

It is not surprising, then, that the initial proclamation of slavery’s downfall was met with ambivalence or hostility by so many people who should have known better. Likewise today.

The Emancipation Proclamation freed almost no slaves at the time of its announcement. Emancipation took years more of war, and some very tricky political work, to achieve even the 13th Amendment. The full weight of society was not behind the spirit of equality—was not truly ready to welcome the slaves into its bosom—until the Civil Rights Movement, and arguably still isn’t ready today. Emancipation was nevertheless a great and necessary advance. Dobbs, similarly, is the beginning of the work, not the end. But it is a great beginning, worth celebrating.

If you are feeling some ambivalence today, then I congratulate you for two reasons:

First, you are now able to sympathize with the people who felt ambivalent about the Emancipation Proclamation. The people who wrote for the New York Journal of Commerce and the Boston Post were not insane or evil. They were not even, so far as I can tell, pro-slavery! They were just very wrong about how to prioritize a human rights issue of historic importance. They were wrong about whether freedom for the oppressed should wait until the oppressor is good and ready. You know now that they weren’t evil, because you feel the same, and you’re not evil, either. It is always good for the soul to learn how to sympathize with other people whom you once simply couldn’t understand. Congratulations.

Second, you have now been warned. The pro-Proclamation letter of Rev. G. Haven has received the sanction of memory, because it was right, because it saw through all the grimy evils of the writer’s time to the beautiful future of life, liberty, and equality it would achieve. The writers opposed to the Proclamation are fortunate to have been forgotten, because otherwise they would stand condemned. My advice: try to react to Dobbs in a way that will earn you the sanction of memory when justice for all children finally sings out across America… whether that happens five years from now or five hundred.

On the other hand, if you are feeling not ambivalence but hostility today—if your reaction was more in line with Jeff Davis’s than Commonweal’s—well, then you are on the other side from me in our nation’s Cold Civil War. You stand against the rights of unborn children, as a former generation stood against the rights of other unpersoned Americans. I respect your opinion, and recognize that many people honorably believe it (as many people have honorably believed in every atrocity since Adam & Eve), but can wish you nothing but swift, honorable, and total defeat, delivered in the patient spirit of another Civil War document, Lincoln’s Second Inaugural:

“With malice toward none, with charity for all, with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in, to bind up the nation’s wounds, to care for him who shall have borne the battle and for his widow and his orphan—to do all which may achieve and cherish a just and lasting peace among ourselves and with all nations.”

(Image credit: Samuel Bronston’s The Fall of the Roman Empire, 1964.)

NOTE: This post was originally published at my Substack. The footnote links go there instead of to the bottom of the page.

Dashed-Off Daily Dobbs upDate #2 of 2 for today but man I got more to say

I dash these updates off after developments in Dobbs v. Jackson and/or Whole Woman’s Health v. Jackson. They are lightly edited, stream-of-consciousness impressions of the day’s action. They’re good but don’t set too much store by them. I couldn’t make time for a picture on this one.

Earlier, I posted the new sections of Alito’s 5-justice majority opinion in Dobbs. It took me until quite late at night to finish reading the rest. During the day, I have an actual day job, and hoo boy it was hard to think about Dobbs when Amazon Web Services was melting down on me for six hours straight.

Then, during the evening, I had to attend a celebration with a few women (and a few men) who have worked their whole lives to protect the unborn. There was pizza and ice cream and some water balloons. I hope that you, too, took some time to celebrate. (Or will take some time in the next few days.) Today is only the beginning of the fight for unborn rights, not the end… but there are children alive right now at this minute who would have died today if this decision were not handed down. And it’s thanks to the hard work, advocacy, and, yes, prayers of millions of people like you. Celebrate.

If you want an example, here’s one. Robin Marty is a dedicated, devoted woman who believes so strongly in the right to abortion that she runs an abortion clinic. I respect her enormously. She tweeted this morning:

Robin Marty @robinmartyAnd honestly all I am asking for at the point is that it waits until Monday. If we can just manage to help that one complicated patient that we KNOW will have no other option, maybe I can find this worth it. If we have to cut her off… I don’t know.June 24th 20226 Retweets130 Likes

That’s a child Ms. Marty was not able to kill, despite her best efforts. The democratically-passed laws of her state protected that child’s life. Although statistics are harder to come by than some wish to admit, it appears that the overwhelming majority of mothers who are denied the opportunity to abort their children are happy about that five years later.1

We might also look to Texas, where some of these children who were improbably saved by SB8 are now being born. The particular teen mom in that story, who loves her babies more than anything, but who but clearly is not getting all the support she needed from her family, is now the subject of a successful pro-life GoFundMe. She will certainly not be the last mom who needs our support.

Not all the moms (and dads) we need to help will have their stories amplified by the Washington Post. Not all of them will be successfully crowdfunded. We must look to our own communities, keep our eyes open for mothers who are falling through the cracks, and do all in our power to support them. Sometimes this will mean $10 in a pass-the-hat. Sometimes it will mean much more. I know pro-lifers who have become deeply involved in the lives of women who had nowhere else to turn; who have spent thousands supporting one mom and one child; who have driven moms in crisis pregnancies to the hospital to give birth because there was no one else; who have adopted children as their own because the mother would otherwise have aborted. The press doesn’t want these pro-life women and men to exist (it ruins the “Handmaid’s Tale” narrative), and many of the people they help don’t want to be advertised to the world as charity cases—who would? wouldn’t it be ghoulish of us?—so nobody knows these stories. But you can’t throw a stone in a pro-life gathering without hearing one or ten.

We have done so much. There is still so much more to do. But, today: celebrate.

Anyway, that wasn’t supposed to be the topic of this post. I actually wanted to talk about the rest of the Dobbs decision, because gosh darn it I spent hours reading it. I try not to write what has already been written elsewhere by others smarter than me, but I think I have a few things to say that are still worth saying.

The Dogs That Did Not Bark: Gorsuch and Barrett

Gorsuch and Barrett helped overturn Roe today. They said nothing at all. This was a surprise. I have thought for many years that Barrett would naturally be assigned to write the decision (if Thomas didn’t assign it to himself). This is, firstly, because Barrett is very smart and a solid writer, secondly because Barrett’s scholarship on the key issue of stare decisis is exceptional—she knows more about stare decisis than anyone else on the Court, because her academic career focused on it so much—and thirdly because she is a woman and a mother, and the symbolism of a woman and mother standing up for all this country’s children (not just her own) and rejecting the equality lie of Roe/Casey is important, even if legally irrelevant.

Or so I thought, anyway. Nobody else did, apparently. Thomas assigned the decision to Alito. Barrett didn’t write a concurrence of her own. Nor did she join either of the other concurrences. She cast her vote for Alito’s decision and that was it. I do suspect that Barrett helped Alito refine his stare decisis arguments. Reading Justice Kagan’s dissent, her side of the Court could really have benefitted from having someone with ACB’s expertise on the subject.

Gorsuch also wrote nothing. I assumed he was writing a concurrence, because Alito had the majority opinion, and I would have guessed Gorsuch would be ahead of Alito in line to write the majority, unless he were diverted for a concurrence. When we learned that Roberts was doing a Stupid Roberts Thing, I thought Gorsuch even more likely to write something, because he and Roberts are constantly at each other’s throats. (I wonder whether Roberts drifted left faster recently because he hates Gorsuch.)

Nope, turns out Gorsuch was content to let the majority speak for him. (To be fair, it’s a very good majority, better than I expected from Alito, so Thomas was right to assign to him.)

The Kavanaugh Concurrence

Justice Kavanaugh wrote what I have come to call The Kavanaugh Concurrence™. In any sufficiently controversial case, when Kavanaugh sides with the conservatives, he writes separately to explain that he loves, honors, and respects all sides of the case, greatly regrets all the discord that may follow from his decision, and explains why he doesn’t think the losing side needs to be scared.

To my memory, Kavanaugh never writes The Kavanaugh Concurrence™ when he sides with the progressives.

Honestly, fine, whatever. It’s probably actually a good idea to take some time to say nice things about your vanquished opponents, even if it’s a futile gesture doomed to be ignored in today’s environment. The problem I have with The Kavanaugh Concurrence™ is that it’s always so darned obsequious, like he isn’t so much trying to recognize the losing side as an honorable opponent as he is trying to get them not to hate him, disinvite him from all the social functions, and burn down his house.

Here, his strategy is to repeat the line he tested out at oral arguments: he insists that the Court isn’t siding with anyone, but adopting the neutrality that the Constitution prescribes. Abortion is left to the state legislatures, where it belongs, and people can agree or disagree about it in good conscience, with democracy deciding.

This particular Kavanaugh Concurrence™ is particularly vexing, though. In trying to insist that the losing side in Dobbs really has nothing to worry about, he makes two fairly major concessions to the other side that I really wish he hadn’t made.

First, Kavanaugh insists that the Constitution is silent on abortion… in both directions. Kavanaugh expressly rejects the claim advanced by Robert George, John Finnis, and others that unborn people are people and that abortion itself therefore violates the 14th Amendment. The Alito majority carefully avoided making any judgment about that question. Kavanaugh stomps on it, saying that no justice has ever held this position and that he doesn’t, either. (He makes literally no argument against anything George & Finnis and the others have said. He just dismisses it outright, seemingly out of a desire to smooth the dissent’s feathers.)

Second, Kavanaugh makes a very significant concession to future case law, again on the basis of no discussion whatsoever:

May a State bar a resident of that State from traveling to another State to obtain an abortion? In my view, the answer is no, based on the constitutional right to interstate travel.

Not even a footnote to explain the right to interstate travel! This is a problematic concession, because one of the next frontiers in the abortion wars is indeed going to be interstate drama. For example: suppose Pennsylvania passes a law allowing abortion, but requires mothers to secure the consent of the father first. If the father does not consent to the abortion, then the abortion is forbidden, and he assumes full responsibility (and sole custody) for the child until the child turns 18. (I’m not saying it’s a good law, just saying it’s a law that could exist.) Violation of this law is both a crime (a doctor performing the abortion can go to jail) and a tort (the mother can be sued for damages for depriving the father of his paternal rights). Now suppose an expectant mother wants to abort her child, but dad says no. Contravening the law, she crosses the border into New Jersey, which has abortion on demand, and aborts the child.

Justice Kavanaugh apparently believes the father has absolutely no legal remedy here. His partner has just killed his only child, but, because she crossed state lines, there’s nothing anyone can do to redress the harm done to him. That… doesn’t seem correct. Or, at least, it’s not half as simple as he wants to make it to allay the dissent’s concerns.

Oh, well. Kavanaugh may reconsider in the right case, and I really can’t be too mad at him, because the pressure Roberts put on him to defect from the majority must have been very intense. And Kavanaugh loves Roberts. And Kavanaugh craves acceptance. He overcame these obstacles to do the right thing today, both legally and morally. I’m gonna cut him some slack if he feels the need to soft-pedal it, especially since I agree with his core notion of being nice to your opponents.

John Roberts, Fartface

I am not going to cut Chief Justice Roberts a modicum of slack. He doesn’t deserve it. He deserves less. He is the least respectable person on the Court today, including all three of the dissenters (with whom I passionately disagree).

I used to try so hard to defend this guy. I still think he had a point about saving the Affordable Care Act through judicial minimalism!2 But this concurrence-in-the-judgment today is next-level nonsense. My reaction on Facebook today was, “Roberts really is a little crapburger.” My sister reminded me that, two years ago, when Roberts handed down June Medical, my Facebook reaction to that was “Roberts you dumb fart.” So, yeah, I’m done with this dope. He is not doing law and has not been trying to do law for a long time. He is playing politics, trying to forge compromises like a gorram Congressman instead of an Article III judge—the chief Article III judge, as a matter of fact!

Roberts says that the Question Presented to the Court was a narrow one: “are all previability abortion bans unconstitutional?” This is correct. Although the very practice of selecting only isolated questions from appeals is legally questionable, it’s a common practice, and that was the only question the Court took in Dobbs.

Roberts then insists that you don’t have to overturn Roe or Casey in order to answer that question (correctly) with “no.”3 Literally everyone involved in this case disagrees. Both sides think this case hinges on Roe or Casey falling or not. But Roberts alone among all human beings thinks otherwise. He must either be America’s biggest brain-genius or its biggest idiot.

How can he allow previability abortion bans without overturning Roe/Casey? The central holding of Roe preserved by Casey was that a woman has a right to abortion until viability, at which point the interest in fetal life becomes stronger. Roberts proposes to abolish this line, because the legal basis for the line is nonsense (true), but he insists that this is all the Court should do. It should otherwise keep Roe and Casey on the books.

What Roe and Casey would even mean with their central holding vitiated is unclear. Obviously, the viability line would have to be replaced with something. (If abortion bans are allowed, and there’s no replacement line, Roe/Casey are overturned anyway!) So Roberts suggests that the true holding of Roe/Casey was that mothers needed “sufficient time” to decide whether to abort or not. He proposes the “sufficient time” standard as the new rule, rooted in Roe/Casey. This is nonsense on stilts, and Roberts surely knows it. He is not clarifying those decisions or partially overturning them. He is rewriting them.

A judge who knew something about the law once explained how to apply stare decisis and how to know when to set it aside. That judge was clear that, once you have to rewrite a precedent to keep it on its legs, it’s time to let it go:

To the extent that the Government’s case for reaffirming Austin depends on radically reconceptualizing its reasoning, that argument is at odds with itself. Stare decisis is a doctrine of preservation, not transformation. It counsels deference to past mistakes, but provides no justification for making new ones. There is therefore no basis for the Court to give precedential sway to reasoning that it has never accepted, simply because that reasoning happens to support a conclusion reached on different grounds that have since been abandoned or discredited.

Doing so would undermine the rule-of-law values that justify stare decisis in the first place. It would effectively license the Court to invent and adopt new principles of constitutional law solely for the purpose of rationalizing its past errors, without a proper analysis of whether those principles have merit on their own. This approach would allow the Court’s past missteps to spawn future mistakes, undercutting the very rule-of-law values that stare decisis is designed to protect.

That judge’s name was John Roberts, writing in Citizens United. The shell who sits on the Court today is not recognizable as the same man.

Roberts presents his transformative “sufficient time” rule, but he fails to acknowledge that he is thereby rebuilding the foundations of Roe and Casey on new constitutional ground. He fails to inquire whether that ground is sound, or has any basis in the Constitution or any other precedents outside this line of cases. He fails to elaborate on what it might mean, leaving that question for future courts.

But he does stop long enough to explain that his proposed rule would smash the hard, pro-unborn, democratic legislation of a dozen states to ickle tiny bits:

…But under the narrower approach proposed here, state laws outlawing abortion altogether would still violate binding precedent. And to the extent States have laws that set the cutoff date earlier than fifteen weeks, any litigation over that timeframe would proceed free of the distorting effect that the viability rule has had on our constitutional debate. The same could be true, for that matter, with respect to legislative consideration in the States. We would then be free to exercise our discretion in deciding whether and when to take up the issue, from a more informed perspective.

We know full well from John Roberts’ past work that “exercising our discretion in deciding whether and when to take up the issue” means “we will never touch this issue again as long as I can prevent it.” This constitutional decree, issued by King John, would have lived as long as he did, rooted not in the Constitution, not in the rule of law, but in John Roberts’ own will—and his decree would have prevented the People from exercising their right to legislate democratically for yet another generation.

Roberts has the insane audacity to call this position judicial modesty.

A cynic would notice that Roberts proposed line, while it has absolutely no visible basis in law recognized by either side of this debate, does happen to fit very nicely with what national polls say would be the most broadly popular settlement of the abortion debate. Allowing abortions in the first trimester and banning them beyond that is broadly popular with the public.

Like a gorram Congressman.

Will Roberts Resign?

This is a question worth asking. Roberts’ rulings are so far up his own buttocks at this point that it is no longer clear what he is actually doing it all for. Turning Dobbs from a 6-3 into a 5-1-3 certainly didn’t help with that judicial integrity and legitimacy he’s always talking about. The fact of the matter is, Roberts’ days as the swing justice in control of the Court are probably behind him. He surely knows this. Even if the pendulum swings back thanks to future nominations, it’s unlikely to make him the swing again, at least not for long; it’s more likely to put Kagan in control of the Court. Roberts is now an unhappy mediator of two increasingly warring sides. He is impotent to affect many landmark decisions and equally impotent to suppress the growing culture of leaks, to discourage illegal picketing at his justices’ homes, or to catch the leaker. And I think he’s probably very annoyed at the conservative majority that is rapidly leaving him—him, King John Roberts—behind!

So maybe there’s a part of Roberts that’s saying to himself, “I could get out of this job right now, and I would Save The Court’s Legitimacy (in the minds of Georgetown progressives, anyway, and all I have to do is resign my conservative seat and let Joe Biden replace me.”

I don’t think that’s a good plan, but Roberts has a lot of plans I don’t think are good, so who knows?

I don’t think this is very likely. Maybe 10% likely. There’s a large chance he still wants to try to do some good (as he sees it) at the Court, and an even larger chance that these few paragraphs completely misread his personality. But still it’s a question worth asking, at least in a Dashed Off Daily Dobbs Update where my editorial standards are more or less stream-of-consciousness. Next week is the traditional week to announce retirements! Stay tuned.

Abrupt Conclusion

Just like when the Dobbs draft leaked, I intended to get everything about the opinion written in one go. I failed. It’s late and I have a big day tomorrow (not abortion-related). I have to go to bed.

I will try very hard to write more tomorrow about Thomas’s surprisingly unsurprising concurrence, and then, of course, about the joint dissent (which is by far the longest part of the decision I haven’t touched yet). Good night!

(And don’t forget to celebrate!)

1

This factoid comes from a New York Times article, but the NYT is paywalled, so here’s a link to the generally not-too-reliable LifeSiteNews that reports on the NYT article. You can click through to the NYT or just take LSN’s summary’s word for it: the Turnaway Study found that only 5% of mothers turned away from abortion still wish they didn’t have the baby five years later.

Of course, it is worth mentioning that the study found an equally small percentage of women who got abortions ended up regretting it.

2

I now think the tell that Roberts was not doing law in the ACA case was his treatment of the Anti-Injunction Act, which I didn’t care about at the time, but it made no sense and was not consistent with Roberts’ later reasoning.

3

In the originally posted version of this post, this said “yes” instead of “no.” I don’t usually correct DODDU posts, but this was pretty confusing! Updated 27 June 2022.

Dashed-Off Daily Dobbs Update #1 of ?

NOTE: This post was originally published at my Substack. The footnote links go there instead of to the bottom of the page.

The Supreme Court has overturned its abortion precedents, allowing states to protect the unborn for the first time in nearly 50 years. While there is still a great deal of work to be done, this decision represents the largest single expansion of human rights in the United States of America since the 13th Amendment.

There is so much to read and so much to write (and some of us have day jobs!), but I haven’t seen this reprinted anywhere else yet, so I’ll post it quick and come back later.

Justice Alito’s draft majority opinion is now an actual majority opinion. Most of it remained unchanged, so I won’t go over it again. I have done that plenty on this blog already (and you can peruse the archives if you want my analysis of the original draft!).

However, aside from some interesting new footnotes, Alito added two important sections in response to the concurrence and dissent. I reproduce those sections here, without further comment (in part because they say all that needs to be said), because I haven’t seen them spelled out clearly elsewhere.

First, on stare decisis, deep-rootedness, and the dissent’s dishonest “balancing” test:

II. D. 1.

The dissent is very candid that it cannot show that a constitutional right to abortion has any foundation, let alone a “deeply rooted’” one, “‘in this Nation’s history and tradition.” Glucksberg, 521 U.S., at 721; see post, at 12-14 Goint opinion of BREYER, SOTOMAYOR, and KAGAN, JJ.). The dissent does not identify any pre-Roe authority that supports such a right—no state constitutional provision or statute, no federal or state judicial precedent, not even a scholarly treatise. Compare post, at 12-14, n. 2, with supra, at 15-16, and n. 23. Nor does the dissent dispute the fact that abortion was illegal at common law at least after quickening; that the 19th century saw a trend toward criminalization of pre-quickening abortions; that by 1868, a supermajority of States (at least 26 of 37) had enacted statutes criminalizing abortion at all stages of pregnancy; that by the late 1950s at least 46 States prohibited abortion “however and whenever performed” except if necessary to save “the life of the mother,” Roe, 410 U. S., at 139; and that when Roe was decided in 1973 similar statutes were still in effect in 30 States. Compare post, at 12-14, nn. 2-8, with supra, at 23-25, and nn. 33-34.

The dissent’s failure to engage with this long tradition is devastating to its position. We have held that the “established method of substantive-due-process analysis” requires that an unenumerated right be “‘deeply rooted in this Nation’s history and tradition’” before it can be recognized as a component of the “liberty” protected in the Due Process Clause. Glucksberg, 521 U.S., at 721; cf. Timbs, 586 U.S., at ___ (slip op., at 7). But despite the dissent’s professed fidelity to stare decisis, it fails to seriously engage with that important precedent—which it cannot possibly satisfy.

The dissent attempts to obscure this failure by misrepresenting our application of Glucksberg. The dissent suggests that we have focused only on “the legal status of abortion in the 19th century,” post, at 26, but our review of this Nation’s tradition extends well past that period. As explained, for more than a century after 1868—including “another half-century” after women gained the constitutional right to vote in 1920, see post, at 15; Amdt. 19—it was firmly established that laws prohibiting abortion like the Texas law at issue in Roe were permissible exercises of state regulatory authority. And today, another half century later, more than half of the States have asked us to overrule Roe and Casey. The dissent cannot establish that a right to abortion has ever been part of this Nation’s tradition.

II. D. 2.

Because the dissent cannot argue that the abortion right is rooted in this Nation’s history and tradition, it contends that the “constitutional tradition” is “not captured whole at a single moment,” and that its “meaning gains content from the long sweep of our history and from successive judicial precedents.” Post, at 18 (internal quotation marks omitted). This vague formulation imposes no clear restraints on what Justice White called the “exercise of raw judicial power,” Roe, 410 U.S., at 222 (dissenting opinion), and while the dissent claims that its standard “does not mean anything goes,” post, at 17, any real restraints are hard to discern.

The largely limitless reach of the dissenters’ standard is illustrated by the way they apply it here. First, if the “long sweep of history” imposes any restraint on the recognition of unenumerated rights, then Roe was surely wrong, since abortion was never allowed (except to save the life of the mother) in a majority of States for over 100 years before that decision was handed down. Second, it is impossible to defend Roe based on prior precedent because all of the precedents Roe cited, including Griswold and Eisenstadt, were critically different for a reason that we have explained: None of those cases involved the destruction of what Roe called “potential life.” See supra, at 32.

So without support in history or relevant precedent, Roe’s reasoning cannot be defended even under the dissent’s proposed test, and the dissent is forced to rely solely on the fact that a constitutional right to abortion was recognized in Roe and later decisions that accepted Roe’s interpretation. Under the doctrine of stare decisis, those precedents are entitled to careful and respectful consideration, and we engage in that analysis below. But as the Court has reiterated time and time again, adherence to precedent is not “‘an inexorable command.’” Kimble v. Marvel Entertainment, LLC, 576 U.S. 446, 455 (2015). There are occasions when past decisions should be overruled, and as we will explain, this is one of them.

II. D. 3.

The most striking feature of the dissent is the absence of any serious discussion of the legitimacy of the States’ interest in protecting fetal life. This is evident in the analogy that the dissent draws between the abortion right and the rights recognized in Griswold (contraception), Eisenstadt (same), Lawrence (sexual conduct with member of the same sex), and Obergefell (same-sex marriage). Perhaps this is designed to stoke unfounded fear that our decision will imperil those other rights, but the dissent’s analogy is objectionable for a more important reason: what it reveals about the dissent’s views on the protection of what Roe called “potential life.” The exercise of the rights at issue in Griswold, Eisenstadt, Lawrence, and Obergefell does not destroy a “potential life,” but an abortion has that effect. So if the rights at issue in those cases are fundamentally the same as the right recognized in Roe and Casey, the implication is clear: The Constitution does not permit the States to regard the destruction of a “potential life” as a matter of any significance.

That view is evident throughout the dissent. The dissent has much to say about the effects of pregnancy on women, the burdens of motherhood, and the difficulties faced by poor women. These are important concerns. However, the dissent evinces no similar regard for a State’s interest in protecting prenatal life. The dissent repeatedly praises the “balance,” post, at 2, 6, 8, 10, 12, that the viability line strikes between a woman’s liberty interest and the State’s interest in prenatal life. But for reasons we discuss later, see infra, at 50-54, 55-56, and given in the opinion of THE CHIEF JUSTICE, post, at 2-5 (opinion concurring in judgment), the viability line makes no sense. It was not adequately justified in Roe, and the dissent does not even try to defend it today. Nor does it identify any other point in a pregnancy after which a State is permitted to prohibit the destruction of a fetus.

Our opinion is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth. The dissent, by contrast, would impose on the people a particular theory about when the rights of personhood begin. According to the dissent, the Constitution requires the States to regard a fetus as lacking even the most basic human right—to live—at least until an arbitrary point in a pregnancy has passed. Nothing in the Constitution or in our Nation’s legal traditions authorizes the Court to adopt that “‘theory of life.’” Post, at 8.

And later, on stare decisis (again), the other substantive due process cases, and Chief Justice Dumbfart Roberts’ idiotic middle way. (I accord the dissenters a certain degree of respect, because at least they believe the terrible things they are writing. Roberts doesn’t believe what he’s writing at all. He is no longer even pretending to operate as an Article III judge rather than a dictator.)

V.A.1.

The dissent argues that we have “abandon[ed]” stare decisis, post, at 30, but we have done no such thing, and it is the dissent’s understanding of stare decisis that breaks with tradition. The dissent’s foundational contention is that the Court should never (or perhaps almost never) overrule an egregiously wrong constitutional precedent unless the Court can “poin[t] to major legal or factual changes undermining [the] decision’s original basis.” Post, at 37. To support this contention, the dissent claims that Brown v. Board of Education, 347 U.S. 488, and other landmark cases overruling prior precedents “responded to changed law and to changed facts and attitudes that had taken hold throughout society.” Post, at 43. The unmistakable implication of this argument is that only the passage of time and new developments justified those decisions. Recognition that the cases they overruled were egregiously wrong on the day they were handed down was not enough.

The Court has never adopted this strange new version of stare decisis—and with good reason. Does the dissent really maintain that overruling Plessy was not justified until the country had experienced more than a half-century of state sanctioned segregation and generations of Black school children had suffered all its effects? Post, at 44-45.

Here is another example. On the dissent’s view, it must have been wrong for West Virginia Bd. of Ed. v. Barnette, 819 U.S. 624, to overrule Minersville School Dist. v. Gobitis, 310 U. S. 586, a bare three years after it was handed down. In both cases, children who were Jehovah’s Witnesses refused on religious grounds to salute the flag or recite the pledge of allegiance. The Barnette Court did not claim that its reexamination of the issue was prompted by any intervening legal or factual developments, so if the Court had followed the dissent’s new version of stare decisis, it would have been compelled to adhere to Gobitis and countenance continued First Amendment violations for some unspecified period.

Precedents should be respected, but sometimes the Court errs, and occasionally the Court issues an important decision that is egregiously wrong. When that happens, stare decisis is not a straitjacket. And indeed, the dissent eventually admits that a decision could “be overruled just because it is terribly wrong,” though the dissent does not explain when that would be so. Post, at 45.

V. A. 2.

Even if the dissent were correct in arguing that an egregiously wrong decision should (almost) never be overruled unless its mistake is later highlighted by “major legal or factual changes,” reexamination of Roe and Casey would be amply justified. We have already mentioned a number of post-Casey developments, see supra, at 33-34, 59-63, but the most profound change may be the failure of the Casey plurality’s call for “the contending sides” in the controversy about abortion “to end their national division,” 505 U. S., at 867. That has not happened, and there is no reason to think that another decision sticking with Roe would achieve what Casey could not.

The dissent, however, is undeterred. It contends that the “very controversy surrounding Roe and Casey” is an important stare decisis consideration that requires upholding those precedents. See post, at 55-57. The dissent characterizes Casey as a “precedent about precedent” that is permanently shielded from further evaluation under traditional stare decisis principles. See post, at 57. But as we have explained, Casey broke new ground when it treated the national controversy provoked by Roe as a ground for refusing to reconsider that decision, and no subsequent case has relied on that factor. Our decision today simply applies longstanding stare decisis factors instead of applying a version of the doctrine that seems to apply only in abortion cases.

V. A. 3.

Finally, the dissent suggests that our decision calls into question Griswold, Eisenstadt, Lawrence, and Obergefell. Post, at 4-5, 26-27, n. 8. But we have stated unequivocally that “[nJothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” Supra, at 66. We have also explained why that is so: rights regarding contraception and same-sex relationships are inherently different from the right to abortion because the latter (as we have stressed) uniquely involves what Roe and Casey termed “potential life.” Roe, 410 U. S., at 150 (emphasis deleted); Casey, 505 U.S., at 852. Therefore, a right to abortion cannot be justified by a purported analogy to the rights recognized in those other cases or by “appeals to a broader right to autonomy.” Supra, at 32. It is hard to see how we could be clearer. Moreover, even putting aside that these cases are distinguishable, there is a further point that the dissent ignores: Each precedent is subject to its own stare decisis analysis, and the factors that our doctrine instructs us to consider like reliance and workability are different for these cases than for our abortion jurisprudence.

V. B. 1.

We now turn to the concurrence in the judgment, which reproves us for deciding whether Roe and Casey should be retained or overruled. That opinion (which for convenience we will call simply “the concurrence”) recommends a “more measured course,” which it defends based on what it claims is “a straightforward stare decisis analysis.” Post, at 1 (opinion of ROBERTS, C. J.). The concurrence would “leave for another day whether to reject any right to an abortion at all,” post, at 7, and would hold only that if the Constitution protects any such right, the right ends once women have had “a reasonable opportunity” to obtain an abortion, post, at 1. The concurrence does not specify what period of time is sufficient to provide such an opportunity, but it would hold that 15 weeks, the period allowed under Mississippi’s law, is enough—at least “absent rare circumstances.” Post, at 2, 10.

There are serious problems with this approach, and it is revealing that nothing like it was recommended by either party. As we have recounted, both parties and the Solicitor General have urged us either to reaffirm or overrule Roe and Casey. See supra, at 4-5. And when the specific approach advanced by the concurrence was broached at oral argument, both respondents and the Solicitor General emphatically rejected it. Respondents’ counsel termed it “completely unworkable” and “less principled and less workable than viability.” Tr. of Oral Arg. 54. The Solicitor General argued that abandoning the viability line would leave courts and others with “no continued guidance.” Jd., at 101. What is more, the concurrence has not identified any of the more than 130 amicus briefs filed in this case that advocated its approach. The concurrence would do exactly what it criticizes Roe for doing: pulling “out of thin air” a test that “[nJo party or amicus asked the Court to adopt.” Post, at 3.

V. B. 2.

The concurrence’s most fundamental defect is its failure to offer any principled basis for its approach. The concurrence would “discar[d]” “the rule from Roe and Casey that a woman’s right to terminate her pregnancy extends up to the point that the fetus is regarded as ‘viable’ outside the womb.” Post, at 2. But this rule was a critical component of the holdings in Roe and Casey, and stare decisis is “a doctrine of preservation, not transformation,” Citizens United v. Federal Election Comm’n, 558 U.S. 310, 384 (2010) (ROBERTS, C.J., concurring). Therefore, a new rule that discards the viability rule cannot be defended on stare decisis grounds.

The concurrence concedes that its approach would “not be available” if “the rationale of Roe and Casey were inextricably entangled with and dependent upon the viability standard.” Post, at 7. But the concurrence asserts that the viability line is separable from the constitutional right they recognized, and can therefore be “discarded” without disturbing any past precedent. Post, at 7-8. That is simply incorrect.

Roe’s trimester rule was expressly tied to viability, see 410 U.S., at 163-164, and viability played a critical role in later abortion decisions. For example, in Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, the Court reiterated Roe’s rule that a “State may regulate an abortion to protect the life of the fetus and even may proscribe abortion” at “the stage subsequent to viability.” 428 U.S., at 61 (emphasis added). The Court then rejected a challenge to Missouri’s definition of viability, holding that the State’s definition was consistent with Roe’s. 428 U.S., at 63-64. If viability was not an essential part of the rule adopted in Roe, the Court would have had no need to make that comparison.

The holding in Colautti v. Franklin, 439 U. S. 379, is even more instructive. In that case, the Court noted that prior cases had “stressed viability” and reiterated that “viability is the critical point” under Roe. 439 U.S., at 388-389. It then struck down Pennsylvania’s definition of viability, id., at 389-394, and it is hard to see how the Court could have done that if Roe’s discussion of viability was not part of its holding.

When the Court reconsidered Roe in Casey, it left no doubt about the importance of the viability rule. It described the rule as Roe’s “central holding,” 505 U. S., at 860, and repeatedly stated that the right it reaffirmed was “the right of the woman to choose to have an abortion before viability.” Id., at 846 (emphasis added). See id., at 871 (“The woman’s right to terminate her pregnancy before viability is the most central principle of Roe v. Wade. It is a rule of law and a component of liberty we cannot renounce” (emphasis added)); id., at 872 (A “woman has a right to choose to terminate or continue her pregnancy before viability” (emphasis added)); id., at 879 (“[A] State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability” (emphasis added)).

Our subsequent cases have continued to recognize the centrality of the viability rule. See Whole Women’s Health, 579 U.S., at 589-590 (“[A] provision of law is constitutionally invalid, if the ‘purpose or effect’ of the provision ‘is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability’” (emphasis deleted and added)); id., at 627 (“[W]e now use ‘viability’ as the relevant point at which a State may begin limiting women’s access to abortion for reasons unrelated to maternal health” (emphasis added)). Cite as: 597 U.S. (2022) 75

Not only is the new rule proposed by the concurrence inconsistent with Casey’s unambiguous “language,” post, at 8, it is also contrary to the judgment in that case and later abortion cases. In Casey, the Court held that Pennsylvania’s spousal-notification provision was facially unconstitutional, not just that it was unconstitutional as applied to abortions sought prior to the time when a woman has had a reasonable opportunity to choose. See 505 U.S., at 887— 898. The same is true of Whole Women’s Health, which held that certain rules that required physicians performing abortions to have admitting privileges at a nearby hospital were facially unconstitutional because they placed “a substantial obstacle in the path of women seeking a previability abortion.” 579 U.S., at 591 (emphasis added).

For all these reasons, stare decisis cannot justify the new “reasonable opportunity” rule propounded by the concurrence. If that rule is to become the law of the land, it must stand on its own, but the concurrence makes no attempt to show that this rule represents a correct interpretation of the Constitution. The concurrence does not claim that the right to a reasonable opportunity to obtain an abortion is “deeply rooted in this Nation’s history and tradition’” and “implicit in the concept of ordered liberty.’” Glucksberg, 521 U.S., at 720-721. Nor does it propound any other theory that could show that the Constitution supports its new rule. And if the Constitution protects a woman’s right to obtain an abortion, the opinion does not explain why that right should end after the point at which all “reasonable” women will have decided whether to seek an abortion. While the concurrence is moved by a desire for judicial minimalism, “we cannot embrace a narrow ground of decision simply because it is narrow; it must also be right.” Citizens United, 558 U. S., at 375 (ROBERTS, C. J., concurring). For the reasons that we have explained, the concurrence’s approach is not.

The concurrence would “leave for another day whether to reject any right to an abortion at all,” post, at 7, but “another day” would not be long in coming. Some States have set deadlines for obtaining an abortion that are shorter than Mississippi’s. See, e.g., Memphis Center for Reproductive Health v. Slatery, 14 F. 4th, at 414 (considering law with bans “at cascading intervals of two to three weeks” beginning at six weeks), reh’g en banc granted, 14 F. 4th 550 (CA6 2021). If we held only that Mississippi’s 15-week rule is constitutional, we would soon be called upon to pass on the constitutionality of a panoply of laws with shorter deadlines or no deadline at all. The “measured course” charted by the concurrence would be fraught with turmoil until the Court answered the question that the concurrence seeks to defer.

Even if the Court ultimately adopted the new rule suggested by the concurrence, we would be faced with the difficult problem of spelling out what it means. For example, if the period required to give women a “reasonable” opportunity to obtain an abortion were pegged, as the concurrence seems to suggest, at the point when a certain percentage of women make that choice, see post, at 1-2, 9-10, we would have to identify the relevant percentage. It would also be necessary to explain what the concurrence means when it refers to “rare circumstances” that might justify an exception. Post, at 10. And if this new right aims to give women a reasonable opportunity to get an abortion, it would be necessary to decide whether factors other than promptness in deciding might have a bearing on whether such an opportunity was available.

In sum, the concurrence’s quest for a middle way would only put off the day when we would be forced to confront the question we now decide. The turmoil wrought by Roe and Casey would be prolonged. It is far better—for this Court and the country—to face up to the real issue without further delay.

He goes on to conclude as he did before… but, this time, as the law of the land.

More later.