The change in public opinion and feeling in relation to the African race which has taken place since the adoption of the Constitution cannot change its construction and meaning, and it must be construed and administered now according to its true meaning and intention when it was formed and adopted.
Dred Scott v. Sandford – supreme.justia.com
Women were never seen as full, responsible citizens of the United States. They weren’t allowed to vote even after the results of the Civil War and the changes to the Constitution that invalidated the Dred Scott decision. Black men could vote, black women could not. No women could vote until the passage of the 19th amendment on August 18, 1920. Even today women are still seen as suspect, as not really capable of making informed decisions about their own bodies and their own futures. To this day there is no part of the Constitution that guarantees equality before the law to women.
This started to change after 1920. With the right to vote, women became almost full citizens. They were allowed to own property as early as 1848, seventy-two years before they were trusted with voting rights. In the 1960s women gained the right to open a bank account. They could vote forty years before they were trusted to handle their own finances at the bank.
There was one thing women have always been trusted with though, and that was the birthing and raising of children. Getting pregnant and producing the next generation of human beings was the only thing that was gladly left to them; the children and all the housework that came along with raising them.
Midwives and doulas were women, and they were the experts that were brought in to deal with births and the prevention of unwanted births, prior to the invention of modern medicine and the creation of the AMA. There wasn’t a thing called abortion before that point. They referred to it as restoring the menses, the return of the monthly bleeding that comes along with being a female of the human species.
There were no laws in place to prevent abortions before quickening prior to the physician’s crusade lead by that one man, Horatio Storer. Because he wanted to push midwives out of the birthing room, to take away from women the one thing they had been entrusted to do throughout human history, he started the chain of events that has lead us down the long, winding road to where we are today. Had he not started his crusade against abortion practiced by anyone other than AMA doctors, none of the events we have witnessed in our lifetimes would have played out the way they have. He lit the fire of the pro-life movement that took over evangelical America.
The belief that separate and equal life begins inside a woman’s body and not once a baby is born may be the way that anti-abortionists frame their arguments, but their arguments amount to a denial of female equality no matter how you frame it. Forcing someone to do something with their body that is contrary to their will is involuntary servitude, especially when that something permanently alters the body in question and can last anywhere from a year to the rest of their lives. Slavery of the kind practiced after slavery was outlawed.
This kind of enslavement is worse than the chattel slavery that is practiced out in the open, is acknowledged and can be targeted for what it is. This type of immoral usage is a fraud, a trick at the expense of the other who is powerless to stop you from abusing them, hamstrung by the unequal laws that constrain them. If men, the law-creators, carried children then motherhood would be one of the most well-funded endeavors in human creation. On reflection, that is probably how it should be funded.
Forcing women to birth children that they don’t think of as people is dangerous to society itself. Children are not punishment and we cannot afford to treat them as punishment, nor can we justify the taking of them from their families as providing children for the adoption mills; institutions that were founded for racist and genocidal reasons in the distant past. Adoption mills that the newest Justice on the SCOTUS bench have profited from more than once.
Denying women legal equality was the platform on which the Moral Majority and the modern American conservative movement were founded. The antics of people like Phyllis Schlafly, Jerry Falwell and many, many others were the broadsides unleashed on the women’s rights movement, a movement that was set to establish women’s rights in the United States Constitution for the very first time.
The Equal Rights Amendment (ERA) was the instrument that they used to whip their followers into line with in the late 70’s. This is an almost forgotten historical fact these days, but the ERA was what got them off their pews and into State Houses agitating for an end to women’s liberation. The ERA was the motivator, the last straw, but it was the Supreme Court of the United States (SCOTUS) Roe v. Wade decision that lit their hair on fire to start with.
I have never understood why it is that Roe triggered them in this fashion. Abortion has always existed, even if we didn’t call it that. Roe was a perfectly acceptable compromise that took both sides into account. It would have been preferable if the legislatures of the various states and the federal government had cared enough for women’s health to do the right thing and make the procedure legal and available for poor women who didn’t want to have more children they couldn’t feed, but then being thoughtful and humane to those we exploit under capitalism isn’t the kind of behavior that comes naturally.
I distinctly remember accompanying my mother to a Planned Parenthood center in Dallas as a teenager in the late 70’s. We had to travel there from our hometown in Sweetwater because abortion services weren’t a thing you could find out in the hinterlands of Texas. You had to go into the cities for those types of services; and you didn’t tell anyone that’s what you were going there for if you did go there. So we made a side trip to Six Flags on that journey as a cover story, but we also went there to get someone an abortion.
That wasn’t the only time I went to a women’s health clinic for services like abortion. There were girlfriends and acquaintances that needed help, help that I was happy to assist them in getting. The Planned Parenthood center in San Angelo didn’t perform abortions but did conduct screenings for disease and provided access to contraception. Contraception, another bugaboo of the Moral Majority, one that they would prefer we didn’t notice they had a problem with.
Healthcare is Not a Popularity Contest
Roe wasn’t even the best vehicle that could have been presented as the case that would have secured equality, bodily autonomy, for women. The Notorious RBG thought that a different case should have been advanced:
Who can say what a different case with a different, less medically obsessed, decision would have done for the cause of women in the United States.
As the morality laws across the country started to fall one by one. From interracial marriage to contraception and onwards, the Christianists watched from the sidelines and fumed as their religious beliefs enshrined into law were struck down, and they demonstrably grew more agitated as the country became more and more secular. Until Roe. Until it became clear that the country wasn’t going to adhere to their christian beliefs until they stepped forward and made their beliefs the basis for party loyalty.
…and so was born the Moral Majority, with the ERA as their first target. They were the force that got Ronald Reagan the Republican nomination and then the presidency. With that success under their belt, they then worked to infiltrate every bit of government that they could, altering the course of the American experiment with their meddling. With their need to see America be Christian first and foremost.
I really thought they’d never reverse Roe. They’d never be that stupid, that incapable of understanding what it was that Roe was part of. Incapable of understanding the intrusions into their own lives that reversing Roe would make possible. But the leaked Alito opinion proved how wrong I was. I had to finally admit that they did plan to reverse it and that they are every bit as stupid as I first thought they couldn’t be.
It’s quite possible that Alito leaked the draft opinion himself in an attempt to keep Robert’s watered down Dobbs opinion from gaining traction in the court. We may never know the facts of it. What can be said is that both the draft opinion and the SCOTUS Alito-authored decision are blatantly unconstitutional documents.
It seems weird to write those words about a SCOTUS decision, a SCOTUS that is supposed to be the maintainer of Constitutional law. However, Alito’s arguments completely ignore the ninth and tenth amendments to the Constitution and sets their intent aside in favor of conservative ideology.
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, including the one on which the defenders of Roe and Casey now chiefly rely – the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Washington v. Glucksberg, 521 U. S. 702, 721 (1997) (internal quotation marks omitted)
Politico – Text of initial draft, supremecourt.gov
Unenumerated rights are guaranteed under the Ninth amendment and the due process clause in the fourteenth is just the stick on which the unenumerated rights have been measured by the SCOTUS. Justice Alito focuses on the due process clause without answering the question of why the due process clause applies at all. A right to an abortion need not be mentioned anywhere or indeed required to meet the high bar that Alito sets in his decision because the Ninth amendment makes no requirements on what an unenumerated right is. It is the SCOTUS that applies this false rule.
Justice Alito handwaves several times about personhood in his decision but he never does justify his legal opinion on the subject of abortion in anything substantial. He can’t do this because there is no person present inside the person of the mother, no matter how hard you squint at the problem. There is no soul, no functioning brain and insufficient oxygen to make the brain function even if it is developed enough to function in the final weeks of pregnancy. There is no proof of the existence of the soul and so he can’t argue ensoulment at conception as his basis for rejecting abortion as a legitimate medical procedure, and there certainly isn’t a person present at conception if there is no soul present.
Nor is it really a right to an abortion that most women seek but rather the right to the same kind of medical care that is provided to men. Medical care that includes treatment of all of their internal organs as if they are just like the internal organs of a man. This treatment would necessarily include abortion when she and her attending physician, doula or midwife deemed it necessary. That’s it. No refereeing by the government on any level. Her body, her choice.
The decision in the Dobbs case is nothing more than conservative ideology and it contains no legal or historical merit of its own aside from the fact that its author sits on the SCOTUS and is empowered to make these kinds of decisions for all of us. Sits on a court hand-crafted by Donald Trump and the Federalist Society to do what this opinion does, stop abortion from being performed in states that don’t want to grant bodily autonomy to women. The Moral Majority has finally gotten exactly what it asked for. I doubt they will enjoy having it as much as they thought they would.
The Dog Only Thinks He Wants to Catch the Car
This is hardly the first time this kind of ideological judicial activism has been performed, either. Casey was itself a meddling in the judgement of Roe, an attempt to loosen the rules so that the states that wanted to restrict abortion into the second trimester of a pregnancy could do so. This rigged SCOTUS has also neutered the Establishment Clause with the Carson v. Makin decision, clearing the way for governments to promote whatever religion they like by supporting them with tax generated funds. They have endorsed public prayer in schools in yet another reversal of established law. It seems that conservatives are completely okay with judicial activism if the judges do things that they agree with.
Clarence Thomas has stated the goals of the conservative majority on the court quite clearly. If they are going to be ideologically consistent, then all the decisions he mentions in his concurring opinion in Dobbs (Griswold, Lawrence and Obergefell) also must fall. Whether they will get to tell us which orifices we can have sex with, whether we can use contraception while having sex or marry the same-sex partner of our choice is uncertain, but we should definitely not assume they won’t try and come for those previously established rights. What about wet dreams, Justice Thomas? Can I still enjoy my wet dreams?
Chief Justice Roberts wanted to head off the blatant declaration that Alito penned on the subject of abortion, that much is clear. The court bears his name as Chief Justice and consequently he is obsessed with trying to maintain the court as a relevant fixture in the US Government and not have it relegated to the backwater it was at the time of the founding. Perhaps he and his conservative cronies should have thought about the possibility of the Court becoming a tool of religious zealots before they pimped themselves out to the religious right in 1979. It’s a little late to worry about the Court’s reputation now.
This court has shown its true allegiance. Its allegiance isn’t to the Constitution that they swore an oath to uphold, it is to their own Christianist ideology, and nothing will sway them from their path. They are as certain of their moral superiority as the Taney court was certain of theirs when they authored the Dred Scott decision.
What a difference five years makes. In 2017, I feared that the court was ‘lead[ing] us … to a place where separation of church and state is a constitutional slogan, not a constitutional commitment’.
Today, the court leads us to a place where separation of church and state becomes a constitutional violation. If a state cannot offer subsidies to its citizens without being required to fund religious exercise, any state that values its historic antiestablishment interests more than this court does will have to curtail the support it offers to its citizens.
Sonya Sotomayor dissent from Carson v. Makin (Amicus)
Just like Dred Scott and any other American with black skin was back in 1857, women have been remanded back into the custody of the men that they have sex with, or are raped by, to be their property once more. That is the effect of making it impossibly expensive to raise children on the one hand, providing no safety net for those women who find themselves unexpectedly pregnant; and forcing those same women to take years out of their lives to raise the children that they didn’t want, weren’t planning on and have no established support system to lean on. They will turn to the people who put them in this position and be forced to rely on them indefinitely.
It’s worse than that even. No one ever talks about ectopic pregnancies. No one wants to talk about anencephaly or other equally tragic birth defects that aren’t found until the third trimester.
Those women will also need to get abortions or face trauma or possible death from the pregnancy. An abortion is far safer than giving birth, even in the most advanced country on the planet, which isn’t the United States anymore. It also isn’t murder or whatever else you might believe about it based on things you have heard. Abortion is a medical procedure, a chemical result, as natural a course of events as a successful live birth is. We occasionally still call it a miscarriage, but that’s just an abortion by a different name. In the case of chemical abortions, its probably the same cause as a miscarriage. How do you plan to investigate that and tell the difference between the two?
Women Will Die
With this decision by Justice Alito and his fellow conservative SCOTUS conspirators, women are reduced once again to being baby-making machines. They are a walking uterus, worth nothing if they cannot produce viable children. They might as well be axolotl tanks, machines that do nothing but turn out new people. Machines without brains, without desires, without thought. They are slaves, just as black people were once slaves. Slaves to their biological processes.
Being unable to have children is the only way to be free in this society. To be a natural, normal human being is to be a slave if you are a woman. This status will eventually be transferred to the men who get them pregnant, too. I talk about the consequences of reversing Roe at length in the linked article on the subject here and above.
John Cornyn said the quiet part out loud when he suggested that Brown v. Board needs to be targeted next. It’s not about his personal racism when he says this, not directly anyway. It’s about using racial inequality to make us all pay for unwanted pregnancies since it can be shown that there are unequal medical outcomes that will be made worse by striking down Roe.
The cost that the Dobbs decision will inflict on poor women will be almost incalculable. I brushed over several obvious costs and curtailments of rights that women will experience in both of my articles that I’ve linked other places in this article. I see no reason to go through the list of bad outcomes that I’ve already produced there save this one thing; miscarriages happen. Miscarriages happen frequently (about a third of pregnancies) Will we prosecute these unfortunate women like murderers? If history is any judge, we will.
(Criminal Prosecution Of Pregnancy Loss Expected To Increase Post-Roe)
After they’ve strapped these poor women down and successfully forced them to have children, someone is going to have to pay those costs. Absentee fathers will be targeted first. This is not news to poor fathers whose wages have been garnished for quite some time for this purpose. They will be further demonized in the coming years, with calls for punishment that I don’t even want to think about, much less try to predict.
The taxes on everyone will have to be raised eventually, even if rulings like Brown v. Board are reversed. Raised to help fund the increased burden that the thousands, perhaps tens of thousands, of unwanted children will create. Children and then adults that will swamp most of the red states in the country. The cost of schooling or the cost of prison. The cost of food and shelter or the cost of healthcare. Red states that will deny to their last breath that this economic crisis, this glut of uneducated, unwanted people was caused by their delusions about abortion and the sanctity 0f life and they will look to the Blue states to save their asses one more time.
The Things You Own End Up Owning You
All of this might have been avoided, some of it could still be avoided. Laws should be based not on ideology but on best principles objectively proven through trial and error. Bronze-aged morality does not work when coupled with instantaneous communication across the entire world and world-wide next-day shipping.
The circumventing of state-maintained abortion laws is already taking place. This creates black markets in drugs and medical procedures which are essential, black markets defended by people who normally would never think about breaking a law. The destruction of the rule of law follows on the heels of the average person’s willingness to simply look the other way in order to save a loved one’s life or future. You thought the drug war was expensive? Get ready for a drug war 5 to 50 times more expensive depending on how seriously you want to take this sanctity of life thing.
In order to stop this erosion of trust in the law it is essential that we take back control of our government from these ideologues who have taken the power in our absence. We have sat too long behind the Roe decision and congratulated ourselves too early on our enlightened society. The barbarians are well beyond the gates now because they are in control of the Senate, the SCOTUS and most of the States.
We the People can fix this, if we understand the priorities that must come next. Go to your local party precinct meetings. Let them know you are there to help. Get out, canvas your neighborhood, and vote. Vote to throw out Republicans and anti-choice, misogynist leaders of every stripe (yes I’m looking at you Joe Manchin) more importantly, let your representatives know your mind about what they are expected to do as your representative in the State House and in Washington D.C.
The ERA has been approved by enough states now. It needs to be confirmed as having been ratified, and it needs to be encoded into US law immediately. The ERA may not be enough to fix this problem all on its own, but it will be a start. Restart and expand the child tax credit immediately. These funds will go directly to where the problems will appear first, families with dependent children. Children they weren’t planning on having but now will be forced to have. Get the government out of the process of determining health outcomes for individuals. Just like the law everywhere else should be, objectively determined best practices should be what occurs in medical clinics unless the individual insists on being treated differently.
Then there is the Supreme Court of the United States. The court has been treated as a final authority on Constitutional law since Marbury v. Madison in 1803, but there is no basis for the court being treated this way written into the constitution itself. That is the precise belief that Roberts hoped to preserve, that the court has any say over what can be enforced as law in the United States. We may not be able to change the way the court is used by the people who are there already, but there is nothing that says we can’t make the court as big as we want it to be. Twenty, thirty, even fifty justices, whatever the number is that we decide is enough to make sure that the views of the American people are part of the deliberations of the Court itself. Large enough to make sure that a tiny group of judicial activists can’t just decided to change a half century of established jurisprudence in the blink of an eye with one flawed ideologically driven decision.
The last time that unconstitutional, unpopular, far-reaching opinions like Dobbs were handed down by the court, the Civil War broke out. We are about to enter those turbulent waters for a second time, driven there by the same backwards mindset that gave us the Dred Scott decision in 1857. No matter what the SCOTUS says, women will demand their independence. They will fight for it and they will die for it as well as die from the lack of it.
We envision a world where every reproductive decision, including abortion, takes place in thriving communities that are safe, peaceful, and affordable. We envision a world where all people have the power and resources to care for and affirm their bodies, identities, and health for themselves and their families—in all areas of their lives. As we shift the conversation about abortion, it will become a real option, accessible without shame or judgment.
abortionfunds.org
Featured image screencapped from: nwlocalpaper.com/our-summer-of-rage
Postscript
July 3 – The original text of this article contained several hasty legal arguments that I have since excised, and I have expanded on some other thoughts as well. I apologize for the misinformation that I might have passed on earlier. I also added in the Meidas Touch ad.
