The apparent determination of the U.S. Supreme Court to make a controversial ruling down there has triggered a vicious lack of debate in Canada. Aside from Rex Murphy, who said if only we had our own government it wouldn’t matter what some foreign judges did, everyone scurried about saying they supported the status quo exactly as it is, didn’t know anyone who didn’t love abortion on demand, didn’t want to, and had no interest in why anyone might not share their view. This brittle conformity is what passes for productive discussion here nowadays.
To be fair, the same can be said of a certain segment of the American media. My daily feeds from NBC and the New York Times in particular read like participants in the debate not observers of it, right down to the usual “experts say”. (And the Washington Post exquisitely stood up for the rights of “pregnant people”.) But in the United States a lot of people have vocally dissented. They’re having an actual debate, or at least an argument. We’re having a conformism frenzy including mocking Americans for that repulsive diversity on major issues. For instance Margaret Atwood calmly tweeting“Judge Alito’s argument could just as easily be used to remove the vote from women & non-‘white’ men, and to boot women off the Supreme Court.”
Once again I must quote a line from John Stuart Mill that is generally incomprehensible to those who most need to hear it: “He who knows only his own side of the case knows little of that.” On which basis I defy you to pick up some piece of conventional Canadian media, or tune in to the politicians, and see whether anyone getting the vapours over the looming reversal of Roe v Wade even tries to explain how an intelligent and well-meaning person might feel differently.
Including on purely legalistic grounds. It is true that the rule of law is not well served by frequent judicial reversals on key matters. But it is also true that sometimes a major case is decided so badly that a reversal is needed. In the worst ruling in American legal history, Dred Scott in 1857, there was neither time nor inclination for a reversal, so the Civil War happened instead. But in another appalling case, Plessy v Ferguson in 1896, it took the Court 58 years to decide that segregation was deliberately unfair to black people.
For the Court to reverse itself, especially after a long period, is embarrassing. But it should be more embarrassing to persist in an obvious mistake because you’re too vain to admit it. And one such mistake is to deny that a court ruling could be bad jurisprudence even if you think it’s good policy.
I think Roe is bad in every way. But in theory it is, or should be, possible to be so militantly pro-choice you’d be willing to abort yourself yet concede that its tortured reasoning was an affront to legal logic. On which, incidentally, I’d like to know what proportion of people insisting that Roe is the greatest ruling ever have the slightest idea what the legal jiggery-pokery was behind it, or could name the actual precedent-setting case in which it was performed.
In fact it was Griswold v Connecticut in 1965, and “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy.” Which by Planned Parenthood v Casey in 1992 had morphed into “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” Eerily echoing the Dred Scott refusal to compel Americans to recognize the personhood of blacks.
One Canadian lawyer just wrote in the National Post that “Roe makes abortion a constitutional right… Roe is a triumphant illustration of the success of the second-wave feminist movement.” But a court ruling cannot make something a constitutional right. It can only recognize it as one, rightly or wrongly. And you’d think a lawyer would know such a thing.
Perhaps not, in these days of critical legal studies. Just as most Canadian advocates of abortion on demand don’t seem to realize our own Supreme Court, in 1988, did not rule that it was a Constitutional right here. On the contrary, while striking down the existing law the Court clearly explained how to draft a replacement that would withstand Charter scrutiny. But the politicians chickened out.
It’s not that they were pro-life and didn’t dare say so. It’s that they were pro-choice and didn’t dare say so, more from general cowardice than defiance of clear public opinion. So they pretended the Court had said what they wished it had said, and have so pretended ever since.
As for public opinion in Canada, it seems muddled. Various polls until fairly recently found about a third of us wanting some restrictions, though a recent one found overwhelming support for the status quo, plus changes, and that half of pro-choicers think “Abortion rights are now under threat in Canada due to what’s happening in the United States.” I think one reason why people are confused, and exceptionally prone to give conflicting answers depending how the question is phrased, is that the public debate has consisted of a bunch of supposedly smart, thoughtful people hollering “Yeah, me too, whatever” instead of exploring the issue politely and in depth.
On that basis allow me to quote more from Mill, because to admit that there are two points of view is not to concede that you are wrong. On the contrary, the passage above continues, “His reasons may be good, and no one may have been able to refute them. But if he is equally unable to refute the reasons on the opposite side, if he does not so much as know what they are, he has no ground for preferring either opinion… Nor is it enough that he should hear the opinions of adversaries from his own teachers, presented as they state them, and accompanied by what they offer as refutations. He must be able to hear them from persons who actually believe them… he must know them in their most plausible and persuasive form.”
In Canada we increasingly take the opposite view, spewing hateful rhetoric at adversaries instead of refuting their ideas, for instance our Prime Minister lashing out at the truckers’ convoy “racist and misogynist” then accusing others of mindless incivility.
Abortion is not the only topic on which practically the entire Canadian governing class, politicians and commentators, exhibits this reflex. Try to get one of them to explain why a person might dispute climate orthodoxy, and you’d be lucky to get a clumsy parody. Or why spending money you don’t have on programs you don’t need could be a bad idea in a recession. And while lately there’s been a general panic over Medical Aid In Dying, again everyone agrees: it’s excellent but is being handed out too casually.
Still, let’s focus on abortion. Ask them to explain why we care if the United States Supreme Court makes a ruling we don’t like. Or why a reasonable, decent person might dislike the jurisprudence behind Roe. Or even (deep breath, big dare) the killing of innocent unborn babies.
Then jump back as a vicious blast of conformity explodes, engulfing and annihilating the shade of J.S. Mill and that of reasonable discussion.