Margaret Atwood Profoundly Embarrasses Herself in the Atlantic

By Charles C. W. Cooke

Friday, May 13, 2022

 

The only explanation I can come up with for how something this profoundly illiterate was published in the pages of the Atlantic is that the editors wanted the byline “Margaret Atwood” so much that they were prepared to let the author embarrass herself to any degree in order to obtain it.

 

Riffing off of the potential overturning of Roe v. Wade, Atwood asks:

 

Theocratic dictatorships do not lie only in the distant past: There are a number of them on the planet today. What is to prevent the United States from becoming one of them?

 

What is to prevent the United States from becoming “a theocratic dictatorship”? Nothing, I guess — other than that there’s no appetite for the United States to become a theocratic dictatorship; that the case against Roe is legal, not theological; that the case against abortion isn’t theological, either; and that the explicit text of the U.S. Constitution — not contrived, cynical, extraconstitutional nonsense cases such as Roe and Casey, but the explicit text of the U.S. Constitution — renders such a system illegal in every way imaginable. From separation of powers to free speech to due process to the establishment of religion to the guarantee of a republican form of government to the scheduling of elections to term limits, the Constitution flatly bars such an outcome. And nobody — nobody — on the Supreme Court has questioned a single one of the provisions that guarantee it.

 

Still, I suppose it’s too much to ask Atwood to have familiarized herself with any of that. Barreling ahead in her ignorance, she writes:

 

It is now the middle of 2022, and we have just been shown a leaked opinion of the Supreme Court of the United States that would overthrow settled law of 50 years on the grounds that abortion is not mentioned in the Constitution, and is not “deeply rooted” in our “history and tradition.” True enough. The Constitution has nothing to say about women’s reproductive health. But the original document does not mention women at all.

 

No, it doesn’t, although that doesn’t mean they aren’t protected by it. Regardless, the absence of the word “woman” from the “original document” has precisely nothing to do with the question at hand. The original document also didn’t include the 14th Amendment, and yet it was that amendment that was used — incorrectly – to justify Roe. Were the argument against Roe that it violated the “original document,” Atwood’s angle here would merely be silly. That Atwood is pointing to the “original document” while wading into an ongoing debate about the meaning of one of the major changes to it renders her take wholly absurd. The on-the-merits brief against Roe — a brief that is conceded by pretty much every honest legal observer, irrespective of their view of abortion or of the appropriate stare decisis analysis — is that it does not faithfully apply the terms of any part of the Constitution as it currently exists, and that if Americans wish to change this, they will need to amend the Constitution further to do so. Saying “but women haven’t always been included” isn’t merely non-responsive; it’s a ridiculous non sequitur.

 

Undeterred, Atwood continues:

 

Women were nonpersons in U.S. law for a lot longer than they have been persons. If we start overthrowing settled law using Justice Samuel Alito’s justifications, why not repeal votes for women?

 

Again, this is embarrassing. “Justice Samuel Alito’s justification,” as outlined in his draft Dobbs opinion, is that Roe is bad law because, as the pro-choice legal scholar John Hart Ely put it:

 

It is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.

 

Why? Because its conclusion

 

is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure.

 

This, quite obviously, is not true of “votes for women,” because “votes for women” were achieved via a constitutional amendment that reads:

 

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

 

Congress shall have power to enforce this article by appropriate legislation.

 

This elementary problem aside, Atwood contradicts her own “if we start overthrowing settled law, then what?” approach within three sentences of introducing it, when she notes:

 

The Supreme Court’s 1927 Buck v. Bell decision held that the state may sterilize people without their consent. Although the decision was nullified by subsequent cases, and state laws that permitted large-scale sterilization have been repealed, Buck v. Bell is still on the books.

 

Gosh, imagine that! A bad Supreme Court decision that “was nullified by subsequent cases”! And if, indeed, “Buck v. Bell is still on the books,” then we ought to fix that right away, no? So it is with Roe.

 

Atwood then falls into the classic First Amendment trap that is the favorite of semi-informed commentators everywhere. She writes:

 

The hard line of today’s anti-abortion activists is at “conception,” which is now supposed to be the moment at which a cluster of cells becomes “ensouled.” But any such judgment depends on a religious belief—namely, the belief in souls. Not everyone shares such a belief. But all, it appears, now risk being subjected to laws formulated by those who do. That which is a sin within a certain set of religious beliefs is to be made a crime for all.

 

First off, this isn’t true. I believe that life begins at conception, and I don’t believe in God or in the soul. There are many others like me. Second, it is telling that Atwood can only hint at the idea that there is a First Amendment problem here, rather than defend it with reference to the Constitution’s text. Vaguely, Atwood suggests that

 

the writers of the Constitution, being well aware of the murderous religious wars that had torn Europe apart ever since the rise of Protestantism, wished to avoid that particular death trap. There was to be no state religion. Nor was anyone to be prevented by the state from practicing his or her chosen religion.

 

This is true. But it’s also irrelevant, because the Supreme Court’s declining to pretend that the Constitution protects abortion neither creates a “state religion” nor prevents anyone from “practicing his or her chosen religion.” Unless Atwood believes that the First Amendment prohibits religious people from taking part in lawmaking entirely — and if she does, she ought to say so — it’s hard to see the relevance of any of this to the matter at hand.

 

In conclusion, Atwood starts talking about witches, and then gets both the law and the history wrong in her rhetorical coup de grâce. She writes:

 

If Justice Alito wants you to be governed by the laws of the 17th century, you should take a close look at that century. Is that when you want to live?

 

This is false. If Alito’s opinion in Dobbs becomes precedent, it will do nothing more than ensure that Americans are “governed” by abortion laws that have been made by their contemporary elected representatives — who, one hopes, will work harder to understand the issue than Margaret Atwood has.