It all came down to a Hula Hoop and a large, white bedroom pillow, with a leather belt tied tightly around its’ waist to underscore the question of when life actually begins.
That image and message were implanted in my brain 52 years ago, when I sat in the New York State Senate gallery, witnessing the live debate on New York’s liberalized abortion law, enacted in 1970.
I was a 21-year old Legislative Assistant for a Brooklyn Democrat that spring in Albany, and marveled at how a liberal Republican State Senator from Manhattan, Roy Goodman, had perfectly framed the issue of when, precisely, life began.
“Imagine this is the unfertilized egg,” Goodman said, holding up a Hula Hoop for all to see. Then, with his other hand he held up a white bedroom pillow, with a leather belt tied around the pillow’s middle.
“And, imagine this is a sperm cell, looking for an egg to fertilize,” Goodman smiled, knowing all eyes were riveted on him. Laughter rippled throughout the gallery where I sat. Think Woody Allen’s parachuting sperm in his movie “Everything You Wanted to Know About Sex.”
Goodman began to guide the “pillow”—with its leather spermatozoa tail– into the opening of the Hula Hoop.
“At what point does actual life begin?” he bellowed throughout the Senate Chamber? “Here?” He brought the belted pillow across the bottom of the Hula Hoop.
“Here?” he pushed it all the way through. “Or, someplace else, way down the road?”
Goodman’s brilliant illustration of a complicated question was clear to everyone. If a potential life began immediately at conception, what about the life of a sperm cell or an egg before conception? How far back before conception were religious fundamentalists willing to go to mark the “potential” for life? Pre-ejaculation? Pre-menstrual cycle? He reduced the anti-abortion absolutists screed to the theatre of the absurd, with the help of a Hula Hoop, a pillow, a leather belt and common sense.
The New York State Legislature settled on 6 months after the moment of conception, as the precise time of fetal viability, despite the fact that Senator Goodman’s own Jewish faith taught that life did not begin until the moment of birth. It would be three more years before Roe v. Wade settled upon that same 6-month standard.
The most liberal abortion law in the nation—following 142 years of New York having one of the most restrictive statutes—was an earthquake for women’s rights, the right to privacy and the guarantee for women of equal protection under the law, to exercise a legally protected right of personal control over their own bodies. At last, it was actual life, not an elusive “potential of life,” that mattered.
“Suddenly, New York had the most liberal abortion law in the world, ” said Dr. Alan Guttmacher, a leading pioneer in the field of birth control. Other states—Hawaii, Washington and Alaska—quickly followed suit, passing similar laws before Roe v. Wade was decided by the U.S. Supreme Court. Roe clearly drew upon those State Legislative legal precedents and practical experience.
That history—my living history—and the history of millions of American women, was ignored by the Ayatollah Alito in his dreadful draft of a US Supreme Court opinion, overruling“ both Roe v. Wade and Planned Parenthood v. Casey, which enlarged the constitutional basis for Roe to include the Due Process clause of the 14th Amendment. In Alito’s religiously-biased illusion, the 14th Amendment, like women, didn’t matter.
Ayatollah Alito, who, as the New York Times’ brilliant Supreme Court expert Linda Greenhouse pointed out, claimed membership in the Concerned Alumni at Princeton, a conservative group known for opposing the increasing number of women and non-white students at Princeton. Years later, after Princeton’s conservatives—led by such hatemongers as D’inesh D’Souza– couldn’t stop the influx of female students, Alito rapaciously ripped away privacy and equal protection rights for women across America.
That hard won women’s right had been championed by the first female justice on the U.S. Supreme Court, Sandra Day O’Connor—appointed by President Ronald Reagan—and backed by six other justices appointed by Republican Presidents: Chief Justice Warren Burger, Potter Stewart, Harry Blackmun, John Paul Stevens, David Souter, and Anthony Kennedy, in the Roe v. Wade, and Planned Parenthood v. Casey decisions. They were joined by the towering legal minds of Justice William O. Douglas, William J. Brennan, and Thurgood Marshall. Those two significant Supreme Court decisions establishing and expanding a woman’s right to choose the course of her own reproductive rights—without government or religious interference—were decided by a robust majority of seven Republican justices, joined by four Democrats. It didn’t matter to Alito that he was appointed to the Supreme Court seat previously held by the history-making Justice O’Connor. He did not share her passion for women’s equal rights, the right to privacy, nor for individual liberty.
Astonishingly, Ayatollah Alito devoted paragraphs and pages of his dystopian decision to 400 years of twisted history about the “quickening” of fetuses, and crimes for doctors administering drugs to women to bring about miscarriages. His blind search to prop-up his pre-existing prejudices, “found” there was no specific mention of a right to “abortion” in the original Constitution, drafted by 55 wealthy white men. Conveniently, Alito failed to mention, or notice, that women themselves were not mentioned in the Constitution, until 1868, when the 14th Amendment went into effect, recognizing all women and Black men, as individual citizens. Instead, Alito attached an archaic array of 28 draconian “fetal life” laws—enacted by states from 1825-1868, when women were still treated like property of the men they were married to, without any constitutional rights of their own. It would not be for another nearly 60 years until women won the right to vote.
Writing in a New Yorker article entitled “What’s Missing from Alito’s Decision to Revoke the Right to Abortion,” Jessica Winter schooled the Ayatollah that: “No State law outlawed marital rape until 1975; no man was found liable for sexual harassment until 1977; and, pregnancy was a fireable offense until 1978.”
Finally, as if straining to carve out a special protected status for fetuses over the rights of actual existing “persons”—contrary to American history, common law, practice, morality and the diverse religious practices of many Americans—wasn’t enough magical thinking, Ayatollah Alito went after the privacy rights to interracial marriage, procreation, contraception, and marriage equality on page 44 of his inflammatory Fatwah:
“What remained was a handful of cases having something to do with marriage, (Loving v.Virginia, 1967, right to marry a person of a different race or procreation; (Skinner v. Oklahoma, 1942, right not to be sterilized); Griswold v. Connecticut, 1965, (right of married persons to obtain contraception); Eisenstadt v. Baird, 1972, (same right for unmarried persons).”
But, adds Ayatollah Alito, in a warning of how he’ll go after Lawrence v. Texas (right to sodomy between consenting adults), and Obergefell v. Hodges (right to marriage equality) which Alito raged against in a dyspeptic dissent in the case, foreshadowing his full in-flagrante flipping-off of women’s rights in overruling Roe and Casey:
“None of these decisions involved what is distinct about abortion: it’s effect on what Roe termed “potential life.”
Ironically, in his rush to dismiss all privacy and equal rights that differ from his narrow catechism of beliefs, the Ayatollah trashed the institution of marriage, the one thing all religions agree upon, even if they differ on when actual life begins. He dismissed those highly significant individual rights cases as having “something to do with marriage,” as if, marriage was no longer a preferred predicate, or in the best interests of the state, to nurture a “potential life,” as Alito insisted upon in Obergefell v. Hodges. Procreation? Sterilization? Contraception? Societal stability? None of those actual things matter, according to Alito, as much as the “potential for life,” despite its’ obvious reliance upon the existence of all of the others for its conception and development.
Republican State Senator Roy Goodman had it correct over 50 years ago. If the leather-belted pillow enters the Hula Hoop, or the Hula Hoop jumps over the pillow, actual life, does not begin. In the real world—and not a cloistered, imaginary religious one–that precise moment should be a decision left to the individual woman, in consultation with her doctor.
Ayatollah Alito, anathema to a living “person’s” actual rights to liberty—since the Constitution explicitly mentions “persons,”–would be loathe to admit, that the term “potential for life,” or even a “potential person,” never existed in the Constitution or in the jurisprudential traditions of this nation, until, of course, Roe v. Wade introduced it into law.
To accept that new legal term, and reject the 49-year old legal precedent for a living individual’s liberty which Roe v. Wade established, is to literally, throw the actual life-giving bathwater out with the “potential baby.” As mothers have known for millennia, you can’t have one without the other.