It is not a great surprise to see that the libertarian magazine Reason opposes abortion restrictions; one would assume so, given the libertarian creed. (Libertarians Ron Paul, a former House member, and his son, Sen. Rand Paul (R-Ky), however, both oppose abortion, and take the position that life begins at conception.) However, if the publication is going to declare that Justice Alito’s draft opinion in Dobbs is badly reasoned (and a publication named “Reason” should be careful when it makes such a claim if it wants to maintain a reputation for integrity) it has an obligation to rebut that reasoning competently and fairly.
Thus when I saw the headline on Reason’s website, “Alito’s Draft Opinion That Would Overturn Roe Is a Disaster of Legal Reasoning,” I clicked on it eagerly. Legitimate legal analyses of the draft have been in short supply, with even supposedly respectable legal scholars from the pro-abortion camp resorting to hysterical pronouncements rather than dispassionate argument.
Inexcusably, the author of the article under the clickbait headline doesn’t come close to making the case that the Justice’s draft fits that hyperbolic description. Worse, it is quickly apparent that she wouldn’t know a “disaster of legal reasoning” if, to quote Matt Hooper in “Jaws,” one swam up “and bit [her] in the ass.” As I read her mess, I thought, “Elizabeth Nolan Brown can’t possibly be a lawyer.” Indeed she isn’t. Her graduate degree is in theater.
Oh. One of those.
Why would Reason allow a non-lawyer to author a piece with that headline? Good question. Since Brown has no authority (or the skills) to make such a case, she resorts to appeals to other authorities. (Appeal to authority is a classic logical fallacy.) The scholarly authorities she chooses are a colleague at Reason (more on him shortly), and two unqualified commentators. University of Maryland history professor Holly Brewer didn’t analyze Alito’s opinion (though she probably could have done a better job than Brown, a low bar), but just cherry-picked one small part of it, the Justice’s argument that there is no historical justification for determining that abortion is one of the “unenumerated rights” protected by the Ninth Amendment. The other authority not on Reason’s staff is Jason Kuznicki, editor in chief of the think tank TechFreedom. Mirabile dictu, he’s also not a lawyer, but he’s a good social justice warrior, so he plays the race card. “The more we privilege deep roots in history, the more weight we have to give to some terribly illiberal ideas,” says Kuznicki. “Rights for white people have deeper roots than rights for black people, and no amount of time can change that.”
So Kuznicki would invalidate all legal history as a component of legal analysis because of slavery. How CRT of him!
Then Brown cites political “authorities,” and reduces her argument to a joke: Sen. Elizabeth Warren, who despite being a former law professor, has made no substantive arguments to counter Alito, just her usual demagoguery; Sen. Bernie Sanders (also not a lawyer), who embraces so many crazy positions that his opposition to the draft opinion would be the equivalent of an endorsement; Senator Amy Klobuchar, whose contribution to the debate is to predict a dire backlash at the polls, Rep. Ocasio-Cortez, who is an ignoramus and couldn’t comprehend Alito’s draft if there were a Cliff Notes version, and Senator Susan Collins, who had no substantive contribution to make but claimed that Justices Gorsuch, Kavanaugh and Barrett lied in their hearings if they voted to overturn Roe (which is itself a lie; as many have pointed out including Ethics Alarms, all of the Justices carefully avoided making any such assurances, only saying that Roe was “the law of the land” and thay they respected precedent), and most risible of all, Kamala Harris, who said the Republicans”want to take us back to a time before Roe v. Wade, back to a time before Obergefell v. Hodges, back to a time before Griswold v. Connecticut.” That’s some legal reasoning there, Madam Vice-President. At least “Reason” thinks so.
Clarification: I meant “most risible of all” of the politicians Brown cited to support her proposition. She also cited esteemed legal authority Whoopi Goldberg.
If Brown had gone to law school, she would have learned that when you include ostentatiously lame authorities—or, as in this instance, ridiculous ones— in your memo, brief or oral argument, the judge will conclude that you don’t have a case.
Now let’s examine the only relevant authority Brown uses to show that Alito’s draft is “a disaster of legal reasoning.” This one is Damon Root, who is a legitimate legal scholar and fully capable of performing a critical analysis of Alito’s reasoning. He didn’t do one, though; I assume that like me, he prefers to devote the time and energy necessary to the actual opinion and not a leaked draft. The only qualified legal authority, then, that Brown cites for her proposition that Alito’s reasoning is a “disaster” doesn’t claim that Alito’s reasoning is a “disaster” at all. Huh!
What Root does argue, in an earlier Reason article titled “What the Leaked Abortion Opinion Gets Wrong About Unenumerated Rights” is put this way:
The author of the leaked draft opinion, Justice Samuel Alito, makes the standard conservative argument against abortion rights. “The Constitution makes no reference to abortion,” Alito writes, “and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.'” Alito continues: “The right to an abortion does not fall within this category.”
But there is at least one big way in which the unenumerated right at issue in Dobbs may very well fall into this category. Namely, the right to terminate a pregnancy may be justly seen as a subset of the right to bodily integrity.
“May very well fall into this category”? “May justly be seen as a subset of the right to bodily integrity”? “At least one”? If Alito’s reasoning is such a disaster, why is Root so equivocal? I know why: his argument is also weak, and he knows it.
“Bodily integrity”? How does that translate into a right to have a medical procedure that removes another living organism from one’s body? Root doesn’t explain that himself—he also pivots to an appeal to authority. Yup: Brown’s claim that Alito’s legal reasoning is a disaster hands off its argument to Root, who also hands off the argument, this time to a Prof. Sheldon Gelman—it’s an appeal to authority that appeals to authority!
Root also quotes Gelman to the effect that “the right to bodily integrity may be traced back to the Magna Carta.” Wait—didn’t Brown use as another authority the guy who said historical references to rights were inevitably racist? How can Brown use both opinions to criticize Alito’s draft? Well, she can’t, or shouldn’t, but she doesn’t know what she’s talking about.
Now Root’s sole authority for the “bodily integrity” theory is a 28-year-old law review article by the afore-mentioned Prof. Gelman. As it happens, I had read this thing when it was first published. Try to read it yourself: I dare you. It is almost a parody of scholarly Authentic Frontier Gibberish in which the high weeds of philosophical nit-picking obliterate any useful observations.
However, I can summarize the portion that Root is relying on simply: “life,” as in “life, liberty and the pursuit of happiness,” means more than just the right to live, but also the right to live a productive and free life. The Magna Carta forbade the king from cutting off the legs and arms of citizens as a breach of a basic right: a man without a limb was still alive, but his life was much diminished. That’s the right to “bodily integrity.” Thus, Gelman argues, abortion is included among the “unenumerated rights” mentioned in the Ninth Amendment, because the burden of having an unwanted child permanently and materially diminishes the woman’s life—you know, just like losing a leg.
Interesting. But isn’t it strange, indeed hypocritical, to argue for the right to abortion based on an expanded interpretation of the right to life when abortion by definition involves ending a life?
Here’s Gelman’s answer:
One might argue that fetuses have lives, and that a conflict, therefore,
exists between the woman’s and the fetus’ rights of life. No
Justice has ever endorsed that argument, and the considerations
cited in Roe-for example, that abortion is not generally
regarded as murder and that fetuses are not counted in the
census, counsel strongly against it.
One might argue that fetuses have lives, might one? The fiction that fetuses don’t have lives is central to the one-life-only fiction inherent in the “pro-choice” euphemism, but if it hadn’t been thoroughly debunked by 1994, and I’d be shocked if it hadn’t, it certainly is now. Furthermore, the two arguments Gelman cites from Roe are infamous—talk about including weak authorities in your brief! It is not unusual for someone who kills a child in the womb to be prosecuted for murder, when the means of killing isn’t an abortion. 38 states recognize the fetus or “unborn child” as a crime victim, with the crime being homicide or feticide. The census argument is too silly to even debate. Whoever decided that counting the unborn in the census was not likely to be thinking about whether a fetus was alive of not. That the unborn aren’t included in the census proves nothing regarding whether they are alive or not.
Yes, Gelman’s law review article is a disaster of legal reasoning. Brown’s article is a disaster of journalism and punditry, and Reason should hide its metaphorical head in a bag for publishing it.