My grandmother used to say that "one man should have one baby." I never figured out if that was a wish or a curse, but I'd like to modify it anyway. I think that the "one man" should be poor and pregnant and not wanting to be, and I think that his name should be Justice Lewis Powell.
It was Powell who added intellectual insult to the body-blow injury the Supreme Court dealt women on Monday. He was the one who wrote the majority opinion. He was the one who bent logic into a pretzel to explain that this 1977 decision "signals no retreat" from the Supreme Court's 1973 decision.
It would be delicious - maliciously delicious, I admit - to have him pregnant, perhaps even barefoot and pregnant, while i was appointed to explain back to him the wonderful consistency of his interpretation of the Constitution.
To begin with, perhaps I would remind him (as I passed him a slightly salted water to appease his morning sickness) that the Supreme Court in 1973 said that he could choose an early abortion freely. Indeed, it said that the state had no right to interfere with his privacy in determining whether he wanted to carry his pregnancy to term. It was a matter to be determined between him and his physician.
He might then explain to me that he had chosen to have an abortion. Perhaps he had already borne several children. Perhaps he was trying to get off of welfare. Perhaps he had contracted German measles. Perhaps he was too young or too old, or his wife had just deserted him, leaving him to support the children. Well, rich or poor (remember, this is a democracy), whatever he decided was his own private business.
But, he might protest, where can I get this abortion? You see, he might have read in the paper that under the 1977 ruling public facilities don't have to perform abortions. The public hospital nearest his home might well be among the 80 per cent that don't offer this procedure.
I would reassure him that this fact in no way interferes with, let alone "signals a retreat" from, his 1973 right to choose abortion. Why, he can still go state-shopping or clinic-shopping or hospital-shopping. I might suggest that he hurry a bit though, so he can have this abortion in his first trimester.
Now, understandably, Justice Powell might look a bit worried and start contemplating whether his robe could double as a maternity dress. The issue of money would probably come up since, in my fantasy, he isn't exactly rolling in chips. In fact, he is among the poor.
After he goes shopping, he has to make sure that Medicaid will pay for the procedure. He knows that Medicaid paid for 300,000 abortions last year. He knows that Medicaid will pay to deliver a baby. But he heard that, under the new ruling, the states don't have to use these funds to pay for elective abortions anymore.
Well, not to worry, I will calm him down with the thought that most states haven't yet banned Medicaid funding for abortions. Of course, there again, perhaps the fellow had better hurry. The Hyde amendment, which the Senate Appropriations Committee approved this week, may eliminate the use of any federal money for most abortions in every state.
Then, he could only have an abortion if his life were in danger, or if he had multiple sclerosis, renal disease or an ectopic pregnancy - or if he had been raped or had conceived this child through incest. You see, to be consistent - and consistency is very important in the law - the Supreme Court would probably have to uphold a federal ban, the way it upheld the state ban in Connecticut.
But , I would quickly repeat, this would not be a retreat from the Court's 1973 position. You see, I would explain slowly, because he is poor and pregnant and having an anxiety attack, this decision is simply a matter of public policy. It's not that the six justices had opinions on the subject of abortion. It's just that they don't like the idea of using the Constitution to boss the states. They think the law should be made by the legislatures, not the courts. So it was nothing against him personally.
Why, he is just as free as ever since 1973 to decide whether or not to have a child. He is just as free as any member of the middle class. He can still pay privately for an abortion in a private clinic or a private hospital with a private doctor, anywhere he can find one and any way he can get to it.
At that point, despite my best efforts, he might be a touch frustrated. What good does it do him to have the right to abortion if he has no way to pay for it and no hospital that will perform it for him? He might start blabbering about discrimination against the poor. He might even throw himself upon the mercy of the court, wailing, "You don't understand. I don't have the money to travel. I can't afford to pay for an abortion."
At that unseemly conduct, I would simply have to turn away. My logic, after all, would be intact. I would say judicially: "I can't help you. You see, that's a very private matter."