Runaway Court: Forced Pregnancy Is Anything But Supreme

Liberals are freaking out about the overturning of Roe v. Wade focus on the citation by Justice Samuel Alito of a 1996 case wherein individual rights must be “deeply rooted in this Nation's history and tradition.”  This is not a constitutional citation.  The US Constitution does not contain the word “tradition.”  Indeed, that document was born of a revolution and was a product of “the Enlightenment” which sought to overthrown the traditional forms of governing and to substitute a completely new way of democratic-republicanism.

So I can understand the widespread concern about Alito quoting doctrine that is contained neither within Constitution nor based upon constitutional law, especially in light of the fact that Alito and the other Justices are so intent to point out “abortion” is not a right contained in the Constitution.  It seems the document is not as fixed as the conservatives want it to be.  They bend it to suit their agenda.  (Of course, the liberal Court of the 1960's and 1970's did the same in their turn.  As I have written before, I favor a liberal interpretation and believe it affords greater liberties than the conservative view.)

It turns out that the regulation of guns, for example, is (apparently) not a State Right, even though the Second Amendment specifically mentions that States have the right to “a well-regulated Militia.”  The Second Amendment does not mention Federal authority in the matter at all.  The day before the Roe decision shook our society, the Court struck down a New York regulation prohibiting the public carrying of concealed firearms without permit.  Permits “regulate Arms” but the Court in its Far Right radicalization has taken away the right of States to do as they choose, as called for by the Constitution.  No, this Court believes we should have the “wild west” out there.  Shoot 'em if you got 'em, boys!

Inconsistency is the harbinger of an agenda.  Indeed, Justice Clarence Thomas has declared that overturning Roe is the beginning of a crusade against liberal ethics in as much as he wants to overturn contraceptive rights and equality of marriage next.  Though distinctive, these may not be any more difficult to overturn than Roe.  Liberals rightly fear a reboot of this nation to the 1950's. Thomas and his ilk have a specifically Catholic Christian agenda and want to ram it down everyone's throats.  Voting rights is another area the Court has demonstrated the desire to reboot back to the 1950's, when minorities were disenfranchised.

Where Roe v. Wade is concerned, the judicial logic is clear.  The right to an abortion is a State Right.  Justice Alito's landmark 108-page opinion overturning Roe is a historic moment and a massive blow to Federal power and women's liberties.  We are back to the fundamental tension in American politics, how much central power should be applied and in what areas versus how the various States can do things.  It has been contentious through a civil war, segregation, common welfare, voting rights, gay marriage, and innumerable murders and protests.  That's the truth about the ongoing American experiment.  All that was solid has vanished into thin air.  We have a court that will reboot the 1950's.

Alito starts remarkably directly and succinctly. “Abortion presents a profound moral issue on which Americans hold sharply conflicting views.”  And then a bit later: “At the time of Roe, 30 States still prohibited abortion at all stages. In the years prior to that decision, about a third of the States had liberalized their laws, but Roe abruptly ended that political process. It imposed the same highly restrictive regime on the entire Nation, and it effectively struck down the abortion laws of every single State. As Justice Byron White aptly put it in his dissent, the decision represented the 'exercise of raw judicial power,' 410 U. S.,at 222, and it sparked a national controversy that has embittered our political culture for a half century.”

There are two crucial and fundamental problems with Alito's opinion.  First of all it is important to note that Alito sees abortion as a moral issue.  According to him it is not simply an ethical matter.  Your political belief about abortion reflects your sense of morality.  So, right there in the beginning, almost with a slight-of-hand, he has overreached.  Traditionally, abortion is a moral issue.  But, more recently and today, the vast majority of Americans oppose total bans on abortions.  Such overreach (a total ban based upon morality) can only exist within the power of specific States with less diverse and more segregated citizenry.  

No, abortion is a profound ethical issue and has been since before Roe v. Wade.  Overturning that decision does not nullify the fact that the majority of Americans, disbursed throughout the States, and within a well-established tradition of individual rights, want to grant abortion access even if it is only limited to rape and incest.  They want this not because they are opposed to the “sanctity of human life”, which is a moral question.  They want it ethically because they acknowledge that “Big Freedom” is freedom for others with which you do not agree to do what they think it best in their lives.  It is a ethical question.  

In truth, all Alito and the Court should be concerned with is the legal and ethical aspects of the Constitution.  The Constitution does not proclaim itself to be a moral document.  It very specifically and frequently proclaims its ethical power.  To evoke morality from the beginning is unfortunate because it makes an ethical issue a moral one, which is also the harbinger of an agenda.  Justices Stephen Breyer, Sonya Sotomeyer, and Elena Kegan failed in many ways in their weak dissenting opinion but the failure to place the issue on a strictly ethical footing is colossal.

A second fundamental problem with the Alito opinion is that the Mississippi law in part reads: “Mississippi’s Gestational Age Act provides that '[e]xcept in a medical emergency or in the case of a severe fetal abnormality, a person shall not intentionally or knowingly perform . . . or induce an abortion of an unborn human being if the probable gestational age of the unborn human being has been determined to be greater than fifteen (15) weeks.'” Miss. Code Ann. §41–41–19.  Alito's opinion goes on to use the “unborn human being” phrase several times.  The phrase does not appear in any other opinion, for or against.

This is a huge problem.  Is an embryo a “human being”?  In my judgment no.  There is pulsing tissue (but no heart, what is called a "heartbeat" is our imagination) after a few weeks and there is movement in the womb a couple of weeks after that, but that is no different from what a fetus does in many other animals like fish or chickens.  There is nothing uniquely “human” about these early stages.  It is the human imagination that assigns importance to these things.  There is no “baby” in there, there are no emotions, there is no “awareness” that constitutes distinctly human Being.

Yet, also with the ease of a slight-of-hand, by upholding the Mississippi law the Court has given legal precedent to the idea of an “unborn human being.”  This is very dangerous.  The fetus, at this stage, is not a human being.  Medically speaking, it is part of the woman's body.  In fact, Judaism takes this correct and precise view.  This is an essential distinction.  This is how life can be sanctified and abortion, nevertheless, permitted.  Because the fetus, especially in its earliest stages, has no “being.”  Rather, it is an extension of the woman.  The “unborn human being” clause might be the most dangerous aspect of this decision, simply because it is not mentioned by anyone on the Court.  It is accepted by default and it is wrong. 

Otherwise, as indicated in the rest of the quoted text at the beginning, Alito contends that the right to an abortion was up to each State and that this interaction of States was a “political process” (20 States for, 30 States against) that Roe unjustifiably interrupted.  It is interesting how Alito views the process of government.  Apparently, inferred rights (those not specifically innumerated in the Constitution)  are rightly up to the State legislatures which are (theoretically) more directly representative of how the “local” people want to be governed.  

It should be noted that Alito closes out his opinion with two appendices over numerous pages.  The first cites where various States prohibited abortion (or “inducing a miscarriage”) from 1825 to 1952 with vast majority of these opinions from the 19th century.  The second offers instances where various Territories that later became States criminalized abortions.  This inclusion seems to support Alito's perspective that “tradition” dictates we reboot our society in line with archaic State law.  It is interesting to note that no State said anything about abortion when the Constitution was ratified in 1788 and for over 35 years afterwards.  Historically speaking, “original intent” left abortion unregulated.  But the so-called “originalists” work their wrecking ball anyway.

Alito's appendices serve as proof that the Justice's mind is stuck in the past and believes, in effect, “segregation today, segregation tomorrow, segregation forever.”  America must be locked and chained to the values of long-dead people, who do not represent a majority of the American public today.  55% of Americans identify as “pro-choice,” the most in history, while less than 40% identify as “pro-life.”  This is the fundamental problem with the “conservative” mode of government.  It is stuck and unchanging even though, ethically speaking, America has always been a sea of change and it has in all ways changed such that only a minority of the people actually agree with Alito and the Court.

The conservative mode defines what morality is and bases ethics secondary to that.  A “liberal” mode of government, born of the Age of Reason, sees the world as inherently ethical, first and foremost.  Because it values Big Freedom for others to act as they choose against my wishes so long as their wishes cause me no material harm.  The liberal mode allows citizens to choose how they live their lives.  The conservative mode seeks to restrain Big Freedom and force everyone to live under a strict structure defined by whatever tradition conservatives choose.  In this case, the conservative mode is in favor of forced pregnancy wherever States so desire it.  Pregnancy is no longer a private matter (which was part of the basis for Roe to begin with).  Pregnancy is a State matter, which is Orwellian at the very least.

I grow tired of hearing how conservatives are against “big government.”  Everyone wants big government.  Everyone.  They simply want big government made in their image.  Conservatives want big government to (as examples) ban abortions and expand gun-toting freedom.  For them, that kind of big government is great.  Big government that expands access to voting or tries to protect the environment is bad government.  (As indicated in this recent Court ruling here.)  So goes the conservative mode.

Interestingly, Chief Justice John Roberts's concurring opinion discards Alito's States Rights arguments in favor of addressing the issue differently.  He calls Alito out for his overreach – on sensible ethical rather than moral grounds.  The case before the Court could have been decided as a State Right without overturning the Federal Right to abortion.  The Mississippi law does not ban abortions except after 15 weeks.  The Mississippi law does not violate the “viability” clause in Roe v. Wade.  Therefore, the Court should grant the State the right as long as abortion is not banned completely.  Roberts walks a tightrope, as he did with his Obamacare ruling, by saying there's no reason to allow the complete banning of abortions when the law before the Court does not ban abortion completely.  This is clearly overreach based purely on the contention that abortion is a moral problem best left to how local people want to do things.  But, Roberts chastises his fellow conservatives for not showing “judicial restraint.”

“We granted certiorari to decide one question: 'Whether all pre-viability prohibitions on elective abortions are unconstitutional.' That question is directly implicated here: Mississippi’s Gestational Age Act, Miss. Code Ann. §41–41–191 (2018), generally prohibits abortion after the fifteenth week of pregnancy - several weeks before a fetus is regarded as “viable” outside the womb. In urging our review, Mississippi stated that its case was “an ideal vehicle” to “reconsider the bright-line viability rule,” and that a judgment in its favor would “not require the Court to overturn” Roe v. Wade, 410 U. S. 113 (1973), and Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992). Today, the Court nonetheless rules for Mississippi by doing just that. I would take a more measured course. I agree with the Court that the viability line established by Roe and Casey should be discarded under a straightforward stare decisis analysis. That line never made any sense. Our abortion precedents describe the right at issue as a woman’s right to choose to terminate her pregnancy. That right should therefore extend far enough to ensure a reasonable opportunity to choose, but need not extend any further certainly not all the way to viability. Mississippi’s law allows a woman three months to obtain an abortion, well beyond the point at which it is considered “late” to discover a pregnancy. […] I see no sound basis for questioning the adequacy of that opportunity. But that is all I would say, out of adherence to a simple yet fundamental principle of judicial restraint: If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more [my emphasis]. Perhaps we are not always perfect in following that command, and certainly there are cases that warrant an exception. But this is not one of them. Surely we should adhere closely to principles of judicial restraint here, where the broader path the Court chooses entails repudiating a constitutional right we have not only previously recognized, but also expressly reaffirmed applying the doctrine of stare decisis. The Court’s opinion is thoughtful and thorough, but those virtues cannot compensate for the fact that its dramatic and consequential ruling is unnecessary to decide the case before us.

“Both the Court’s opinion and the dissent display a relentless freedom from doubt on the legal issue that I cannot share. I am not sure, for example, that a ban on terminating a pregnancy from the moment of conception must be treated the same under the Constitution as a ban after fifteen weeks. A thoughtful Member of this Court once counseled that the difficulty of a question 'admonishes us to observe the wise limitations on our function and to confine ourselves to deciding only what is necessary to the disposition of the immediate case.' Whitehouse v. Illinois Central R. Co., 349 U. S. 366, 372–373 (1955) I would decide the question we granted review to answer—whether the previously recognized abortion right bars all  abortion restrictions prior to viability, such that a ban on abortions after fifteen weeks of pregnancy is necessarily unlawful. The answer to that question is no, and there is no need to go further to decide this case.

“I therefore concur only in the judgment.”  The word “only” carries a lot of weight here.  Roberts concurs with the judgment but not with the overreach of throwing the baby out with the bath water.

Roberts is, perhaps, the last moderate left on the Court.  The wisdom of moderation is in short supply, judicially speaking.  This is the real danger to liberalism.  Not only are we becoming locked forever in the traditions of the 18th century but that we potentially have a runaway Court that will show no judicial restraint at all in re-establishing every original intent of the Constitution except its obvious revolutionary (not traditional) intent.  If this Court had been sitting in the 1960's we would have never gotten civil rights and segregation addressed.  Because those, too, along with many other things (interracial marriage, for example), were within the purview of the States.

Generally speaking, I am a States Rights kind of guy.  To be honest, there is nothing wrong with the meat and potatoes of the conservative opinion.  The Mississippi law seems fairly sensible to me.  It still allows for abortions after 15 weeks in the case of medical necessity, for  example.  But casting abortion in a moral light instead of as a judicial issue allowed Altio, Thomas, and the three Trump appointments to impose conservative values upon every liberal citizen in a conservative State.  This grotesquely limits freedom.

But it might not really matter.  Robert's opinion is correct and he is right that Alito and the others pissed on all the bushes with their morality and their haste to overturn Roe.  That Roberts could not prevent this bodes poorly for the court.  Because its legitimacy is now in question from a moderate perspective.  Whereas before the legitimacy of Roe was challenged, now the pendulum swings the other way and, if the States continue their “process”, more States will inevitably adopt the right to an abortion.  With 55% of Americans identifying as more “pro-choice” than “pro-life” then it would seem to be only a matter of time.

Of course, it is one thing for the majority of Americans to support abortion to some degree in a poll.  It is a very different thing to make Americans actually do the voting necessary to elect State officials that will nullify the various abortion bans that will go into place.  Whether there are enough abortion supporters to impact the policies of the various States remains to be seen.  It seems to me the 55% pro-choice majority should make an impact at some point.  But, will they vote?

If they do, then this will work itself out as did Prohibition a century ago.  Conservatives used their moral power to ram the illegality of alcohol down the nation's collective throats.  This was no different than overturning Roe.  Abortions will continue because people want and need abortions and most Americans believe in the right to choose.  People had abortions before Roe. The political process isn't what Alito or even Roberts thinks it is.  The process is you cannot remove an individual right once it is in place.  Granting a right is more tolerable than taking a right away.  That is overreach, every time.  In the not too distant future this decision will be practically forgotten and the Court likely viewed as irrelevant to life in the States.

In the meantime, this will inevitably lead to all sorts of issues between the States.  What if a State claims control over its citizenry when they are visiting other States?  Can a person from Texas go to New York for an “abortion vacation”?  Justice Brett Kavanaugh has already suggested that States might not have the right to prohibitory actions taken by their citizens while visiting other States.  How will States enforce their restrictive abortion laws?  They must know about every pregnancy.  Every miscarriage must be subject to drug testing to ensure no abortion pills were used.  This is Gestapo stuff.

It is noteworthy that corporate America could step up here and assist with these abortions, if needed.  It could be that the Court's decision leads to an unprecedented expansion of “corporate life” in American culture.  Where restrictive “moral” judgments do not apply to ethical “business” employee benefits.

Another possibility is that this may well lead to a redefinition what it means to be a “citizen” of a State.  With abortion rights States offering citizenship to those of other States in order to “reside” within the laws of whatever State they choose.  Wouldn't that be an interesting mess?  No Court decision is without “unintended consequences” and the larger, more fundamental the decision the more pervasive and basic the unexpected effects.

As with everything contemporary, technology controls this issue, rather than laws, mores, customs, or traditions.  Abortion pills will be widely available, via a black market if nothing else.  Anyone seeking an abortion will be able to obtain them once these “Jane” networks are established, which will be quickly.  The internet will play a big role in getting women the access they need.  This will lead to all sorts of ridiculous and unnecessary situations.  Is Texas going to put a pregnant woman behind bars because she tried to have an abortion and couldn't?  Does this same woman commit a crime in Texas by having a chat online with a virtual abortion provider?  Every IP address will have to be monitored for that to happen.  More Gestapo stuff.

But, with the technology readily available and the majority of people opposed to the Court's retrograde decision in favor of forced pregnancies, one would think the legitimacy of this decision would not last for long.  I feel that the overturning of Roe will not last as long as Roe did.  That is, we won't have to wait another five decades before abortion is legal nationwide again.

Of course, a radical conservative Court, with a demonstrated propensity for minimal judicial restraint, can do a lot more damage to our society in the meantime.  In which case a “legitimation crisis” will most certainly manifest in our country where the Court is concerned.  People may choose to just ignore the Court entirely.  Technology will make this possible.

Even without a law degree it is clear from reading the various opinions that Roe was a badly made law.  You do need a law degree to understand exactly what was technically wrong with Roe and I certainly don't pretend to understand the mechanics of the arguments on either side of the issue.  It reads, however, like Roe was forced, manufactured, weaseled.  

The dissent argues that having nationwide access to abortion is of tremendous benefit to women in particular and to society as a whole.  But that is a sociological perspective, not a legal one.  It is as fundamentally flawed as the Alito's moral argument.  Even "the notorious RGB," Ruth Bader Ginsburg, was not happy with Roe as the legal cornerstone for abortion. So, while I am no constitutional scholar, it seemed obvious reading these opinions that Roe was legally weak to begin with.  Perhaps the cases for contraception and gay marriage are stronger.  I hope they are, anyway.   

The Court can try to steer us back to the 1950's.  By picking and choosing as they please some laws as States Rights and others as not.  But I think, as with practically every other aspect of our society, Generations Z (see here and here) and Alpha will not think highly of the Court's decision.  They will see the issue of abortion differently than any previous generation and they will live their lives in ways that defy any claim to “tradition” and “precedent.”  They will do whatever technology allows them to do and any institution standing in their way will be damned.  

I bemoan the missed opportunity to have a liberal Court.  Instead we have this radicalized conservative majority that represents a dead-end past in opposition to the way American actually is.  It may take another generation to correct this issue.  In the meantime, this Court will inflict its traditional Catholic will upon all of us.  That is not supreme.  That is the opposite of supreme.  The institution is hellbent on making itself irrelevant.  

Overturning Roe is not the train wreck.  It is only the beginning of the train wreck.  The future does not belong to this Court, nor to the minority of citizens who support the coming cascade of antiquated decisions.  The future belongs to the generations born since 1997 and being born today.  They are the voters of the future and by the time all of them can vote in sufficient numbers, these conservative opinions will seem even more ridiculous than they do today.  Just as Prohibition and segregation are relics of past conservative Courts, allowing States of ban abortions is destined for the dustbin of history.