Law is a fickle beast

Life, death, and the absurdity of legal interpretation

Feb 28, 2024

As context for this essay, I am a writer and lawyer who currently works in public defense. Meaning, I represent clients who can’t afford an attorney in their criminal and family law matters. These are my personal views—the kind that emerge from sitting in silence for long enough. The ones that rap at my window and say, hey, we’re ready, with an urgency I won’t allow myself to ignore.

The law is a fickle beast. We lawyers spend our days, weeks, years arguing about the meaning of a word or whether someone was harmed by what another did or didn’t do. Meanwhile people sit in cages, and are massacred, and babies are born to those who are loath to bear them while other babies are ripped from their crying mothers’ arms.

Yes, hello. Welcome to a most cheery installment of this newsletter.

I’m sure you’ve heard that the Alabama Supreme Court, in an 8-1 decision, ruled that embryos are considered “people” under Alabama law. Naturally, this is going to shake out strangely. A woman on Tiktok posted a video of herself driving in the HOV lane holding a petri dish of her fertilized eggs. And one would wonder about the tax implications. Can IVF patients now list 10+ dependents on their 2024 return?

An Alaska congressman introduced his own bill that would adopt the same definition. Apparently twelve states have such measures in the works, and three states have already implemented it.

The thing is, this is fear mongering. The bill is not going to pass in Alaska—plus, we have a constitutionally protected right to abortion as part of our robust privacy clause. Laws like this are fear mongering, until they’re not. They are smoke and mirrors, until they’re not.

It’s funny that old men—and those are the people pushing these laws, go check—are so obsessed with protecting embryos, mere bundles of cells that could potentially create new life. Instead of looking ahead to what awaits them next, they look backwards, to the very beginning of their time.

It’s a privilege to fear death. I suppose I don’t know what went through Aaron Bushnell’s mind before he self-immolated outside of the Israeli Embassy. I don’t know if he was afraid. Unlike those living within ongoing genocide, Bushnell had a choice. I can’t know whether he was afraid. Only that, if he was, he decided it was worth it.

I sometimes wonder about my clients serving life sentences. What goes through their mind as they contemplate the rest of their days.

As their lawyer, it’s not my job to ask such questions. I think, under the right circumstances, that I could. But it’s not my job. As much as I like to believe I’m on the “right” (righteous?) side—and comparatively, I am—the reality is less noble. As a lawyer, I’m often just another a cog in the wheel of the machine that keeps them jailed.

It is a privilege to fear death. It is a privilege to pretend it isn’t coming for us. To plan our lives as ever-expanding lists of achievements without care for the one fact that binds us all.

I struggle to understand this perceived cultural obsession with life. Treating embryos as people. Prosecuting doctors who assist someone in dying the way they want to go.

I know that it’s ultimately about control. I know it’s a straw man argument, any time someone claims to care about “life” while treating living people as less than human.

Looking at Palestine, Sudan, Ukraine, Yemen, the U.S. prison industrial complex, lack of affordable medical care, homelessness, I think: is this life? Is this it, the thing you, always you, consider so sacred?

In such times, I am drawn to the spiritual. As a child I thought perhaps I would become a monk. I always wanted to know the why. Why is the world like this? Why are we here? Why do bad things happen? Why life?

I wanted to know what happens next. So I went seeking. I studied religion in college, both to emulate my dad and also because it was what came closest to answering why.

I traveled the world in search of answers until I found myself on a research trip seated inside a golden geodesic dome in southern India as a beam of light fell from an opening in the ceiling onto a crystal.

Tell me why, I said. I was lost and pleading. The logic did not hold.

Sadly, there is no answer beyond what we feel inside ourselves. It’s taken decades to discover this. If I’m lucky, I’ll get to keep discovering for many decades more.

I think my childhood dream of becoming a monk in some ways expressed my desire to leave this world. I’ve long believed that it’s possible to be alive and not *here.* Conversely, I also believe, as many have before, that it’s possible to leave this world through death yet still remain.

There’s a character in HBO’s True Detective: Night Country who perhaps is too good to be real. Her name is Rose and she lives in rural (fictional) Ennis, Alaska, after having had some kind of important academic career in the Lower 48. Rose kept remnants of her old ways: fancy dish ware and a taste for luxury. But her life now is mostly solitary. Well, except for the ghosts. She lives at the edge of the ice and sees them walking. Rose is the shepherd between the living and the dead.

I don’t know why we don’t all think more about death. Is it fear that keeps us away? If so, fear of what? Pain, loss?

How many people have you known in your life who, although perhaps still alive, are no longer with you? How many people have you grieved who still breathe this air?

When we fear death, what are we afraid of exactly.

My favorite types of religions are ones that espouse eternal recurrence. Our matter has always been here, since the dawn of time. Since before time was even a construct that our little human heads could understand.

In that sense, sure, you can say these frozen embryos are living. (I’m not going to say they are “people,” no.)

But if I allow you the embryos. If I agree with you that they are indeed living, and because they are living, they must have rights. If I allow you that, then you must give me the rest of it, too.

Trees are living. We know that. What about rocks? I believe rocks are living. I’ve certainly been a rock in a past life.

Rivers. Rivers are the most alive things one can see. And if they are living, the lawyer then must argue that rocks and rivers have rights too.

Everything in this world is living. Is a collection of cells that have been and will be again.

If I give you your embryos, give me that. Respect the river as you do those cells. Respect the air and the permafrost and the trees, too. Protect their rights just as you force me to recognize embryonic life.

The law is a fickle beast. Rules made by people who have the power to enact them.

Or, per Robert Cover, former Yale professor:

Legal interpretation takes place in a field of pain and death. [] A judge articulates her understanding of a text and, as a result, somebody loses his freedom, his property, his children, even his life. Interpretations in law [] constitute justifications for violence which has already occurred or which is about to occur. When interpreters have finished their work, they frequently leave behind victims whose lives have been torn apart by these organized, social practices of violence. Neither legal interpretation nor the violence it occasions may be properly understood apart from one another. This much is obvious…1

These are times when the lawyer in me turns to the spiritual agent in me. Not so that I, like the Chief Justice of the Alabama Supreme Court, can insert my god into legal decisions that enact pain on others. Not that.

Instead, the lawyer in me turns to my spiritual agent because she is the only one who knows how to handle such absurdity.

Law is the master’s supreme tool.2 It will never dismantle the house.

As a lawyer, I am but serving the master. I am the master. Even here, on the side of public defense, the side I see as potentially righteous.

I pity the man who so fears death that he wields the sword on behalf of “extrauterine life.”

You know what other life is extrauterine? All of it, except for during those nine-ish months of gestation (for humans, at least).

What a load of BS.

In impersonating a “frozen embryo from Alabama” on last week’s SNL episode, Marcello Hernandez says it best. He equates the freezer where he’s kept to a jail, which is preferable only to the worst of atrocities: being placed in nine months of solitary confinement—aka, the womb.

Comedy expresses what law cannot. Meanwhile, here I am, once again donning my barrister’s cap. Perhaps recognizing the futility of our systems is one step, however small, towards breaking from them.

The law is a fickle beast, made by fickle people who’d rather not confront their mortality. Yet here we all are, stuck in it.

vessels

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