5 May 2022
Politico released an article, 2 May 2022, about a draft they obtained of a supreme court decision that will overturn Roe V. Wade and another related base. From all I have heard the leak is genuine but may change before the final release expect to arrive in June. Some comments to make on this draft and the arguments quoted from it.
I suspect some of you remember Robert Bork. He is best known for being the one to finally fire Archibald Cox as all his superiors before him had resigned. The short version of his reason is, had he not done it there would be no justice department left. He was also the first supreme court nominee in my lifetime whose nomination was a political fight—one could say it was a signal of the beginnings of the polarization of American democracy that we see now—and the issue that came up often was abortion. Bork believed that the right to privacy that abortion was based on was not a constitutional right and so should not have been ”created” to support Roe v Wade. I read his book on the subject soon after that and he makes the case well. Bork also argued that the state legislatures should have made these laws not the supreme court. This argument seems to be the basis for the leaked opinion.
My personal opinion has changed a lot on the subject since the 1980s due to growing up, learning more about women and their plight in a white male dominated society, and learning more about the poor. In an ideal world, maybe in the 60’s, state legislatures would be willing to move in the direction of allowing abortion rights and other sexually related freedoms. Alito in the opinion states this was the case. An aside: this was the case also in affirmative action for blacks. This motion toward liberal policies seems to have stopped when the supreme court ruled on Roe and when Congress passed the Civil rights act of 1964, respectively. Many things have changed since the 60’s: Changes made by congress after Watergate, the law of unintended consequences, changed politics to a corporate money run exercise; Polarization in politics and the country has increased to an unworkable extent; Gerrymandering has become extreme; The poor are getting poorer and the rich richer; The country is no longer a melting pot but a collection of disputing factions (seekers of victim status) that can only manage temporary alliances before they begin to eat their own young.
Some quotes to discuss: “We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision….”
Justice Samuel Alito in an initial draft majority opinion [as quoted in Politico]
This is a stupid statement, or maybe just disingenuous or naïve. There are lots of things that are not in the constitution: phones, cars, the internet, streetlights, railroads, electricity, and steam engines come to mind. Does he mean that none of the laws pertaining to any of these things are constitutional? He says this decision is only about abortion but how is this any guarantee? State legislatures can, and have, passed laws regulating these things but they will be federally unconstitutional since they are not mentioned in the constitution. Reductio ad absurdum—one hopes.
I will add that this is a typical literalist argument on Alito’s part. The literalist, Biblical literalism usually comes to mind, takes their arguments out of context (textually or historically) or just extremely selectively. They state, as he did, I only want to talk about abortion and there are no other consequences. The Bible Thumper says homosexuality is a death sentence in the Bible but forgets that adultery, lying, steeling, and disrespecting one’s parents are also. Alito forgets that the constitution itself was only passed because it was changed. We call this the Bill of Rights which implies it was part of the original but it is actually just the first ten amendments added so the document would be ratified by the states. There are now 33 of them. The document is, and was designed to be, flexible, the idea that the word abortion is not in it therefore it is unconstitutional is absurd.
Another two quotes: “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.”
Justice Samuel Alito in an initial draft majority opinion [as quoted in Politico]
And he writes as quoted in Politico, “We cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work,” Alito writes. “We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision.” [same source]
Considering the previous quote, this makes no sense. On one hand, Roe should be overturned because it caused division (a rather dubious claim, like division did not exist before), to, we do not know what the effect will be or what the political decisions will be. Disingenuous or just stupidly blind?
The real problem with this decision and the entire anti-abortion stance itself is they are making laws that do not affect themselves. This is not ethical. This ruling will overwhelmingly affect poor women and poor families. The argument about “saving babies”, while dealing with the minutia of how many weeks a fetus becomes viable does nothing for the child that is created and the next year (the US has a very high infant mortality rate as it is—doesn’t even make the top ten in infant mortality, just think when all the now aborted babies are born to poor women with no health care, no child care, etc.) and the next eighteen years, and then the rest of their lives. Right now the right blames poor people for being poor, they say poor people are entitled and lazy, but they are completely willing to enhance that argument with child negligence by forcing them to have a baby they could not afford that will only bring them down further—but that, according to the right, is their own immorality. Aside, the second: isn’t it ironic that the right spent the last two years complaining that the government is deciding on their mask, vaccine, and for the last twenty years their health care coverage decisions is completely rabid to deny women the right their own bodies and family decisions.
The future: Could it be that this will lead to more democratic involvement? Will women save democracy? Could it be that once the initial, retaliatory, in-your-face, laws are passed and then the negative consequences hit that abortion will again move toward state acceptance? If one thinks about the mothers and children, the poverty, and then the burden on the social and financial fabric of the country the experiment is naïve and not worth it. I read today that Ireland began to change their laws by this very problem. A woman was allowed to die for lack of treatment because the doctors had to wait until the baby was dead first—they both died.
Next up for the right, is to ban same sex marriage. This is their other bugaboo. There being no right to privacy anymore there obviously cannot be any right to choose for yourself how you have sex or who with.
To be fair, this was a draft opinion. Faint hope……
Aside, the third:
Hark 