Abortion Rights and Supreme Court Wrongs
Is the Supreme Court really the protector of our “rights”? (Thomas Hawk)
Introduction
One might say that it is appropriate that I am writing this particular version of this column (see the end-note) on Pearl Harbor Day, 2021, 80 years after the Japanese sneak attack on Pearl Harbor, Oahu. But the attack on Constitutional Rights in the matter of freedom of choice in the outcome of pregnancy is anything but “sneak.” Thus, it would be more appropriate, perhaps, were it being written on the next day, the 80th anniversary of President Franklin Roosevelt’s famous (well famous to older folk --- I happened to be 6 when he delivered it and most likely heard it on the radio news which, at important times was always playing in my parents’ living room) “This a Day that Will Live in Infamy” speech.
For what the majority of the Supreme Court members who spoke in the recent oral argument day on the most recent attack on religious liberty and abortion to rights to get to the Court indicated that they would likely do to the Constitutional right to abortion when their current opinion is delivered on the matter in June will be day that shall then live in infamy: a major milestone on the road to creating a State of Religious Authoritarianism for our nation.
For quite some time, I have been writing on the matter of abortion rights, and most especially on the consideration of them in the context of the very real threat of the imposition of religious authoritarianism on the nation by the Republo-fascist Party. On the side of the pro-abortion rights forces a consideration of that approach to the conflict has received little if any attention. In the context of what happened in the U.S. Supreme Court on Dec. 1, 2021, which brings that conflict ever-closer to the surface, I am here offering a version of my most recently published column on the subject (see the end-note). (It should be noted that during the oral arguments Justice ?Sonia Sotmayor observed in passing that the anti-abortion rights position is based on “religion.” As if to prove her point [and mine], the anti-abortion-rights Right went ape-sh—t on that one.)
Introductory Comment on the Substance:
At that Supreme Court hearing Justice Brett Kavanaugh (who, Sen. Susan Collins from Maine assured us, would view Roe v. Wade with an open mind, and who said at his confirmation hearing that he regarded Roe v. Wade as settled precedent) among other things had this to say, in response to a question from a lawyer from Mississippi: " 'You're arguing that the Constitution is silent and, therefore, neutral on the question of abortion?' Kavanaugh asked a lawyer for Mississippi, with seeming approval. 'In other words, that the Constitution is neither pro-life nor pro-choice on the question of abortion but leaves the issue for the people of the states, or perhaps Congress, to resolve in the democratic process?’ "
Actually, Mr. Justice, the Constitution is NOT silent on that question, but I guess that whatever law school you went to didn't cover that subject. Every destroyer-of-abortion-rights whom I have ever come across in support of their position has taken one version or another of the “life-beings-at-the-moment-of-conception concept,” because any new fertilized egg is a "gift from God," or some equivalent thereof.
Actually, to adopt a Constitutional position that the criminalization of abortion is justified, regardless of the religious views of the woman desirous of having one, is to place religion at the center of the Constitutional law, as well Federal and state legislation. Which is, in case the Justice doesn't know it, a violation of the Establishment Clause of the First Amendment, which begins with the words: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;" "Life begins at the moment of conception" is a religious concept, which its promoters make clear over-and-over again. Thus, once again, any imposition, by law, on any person, Mr. Justice, is a violation of the Establishment Clause. Clearly, the Constitution is NOT silent on this matter.
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Now, on to some excerpts of one of my previous columns on this matter, with some editing here and there. This one is from: "The Destruction of Abortion Rights and the Rise of Religious Authoritarianism," 9/30/2020.
As many observers have noted (I wrote in late 2020), with the passing of Justice Ruth Bader Ginsburg our nation is heading into what could be an enormously retrograde period in regard of individual rights and liberties. In the immediate future Trump is going to get his far-Rightist woman (whichever one) confirmed to the Supreme Court. Even if John Roberts, a Rightist himself, but not that far a Rightist, continues to maintain something of an institutionalist approach to the Constitution and the role of the Court, again as is well-known, in the immediate future the Court will at least be a consistent 5-4 Right.
The essence of Roe v. Wade was that, until the generally accepted time of fetal viability outside the womb, 24 weeks, women were to have freedom of choice in the outcome of pregnancy. The anti-abortion-rights movement lay fairly low during the 1970s. It began ramping up with the advent of the Reagan Administration. In the 1980 campaign, Candidate Reagan and the leadership of the Republican Party decided to use the issue as one means of bringing the then-developing Political Religious Right further into their Party.
It was also at about that time (early 1980s) that the anti-abortion-rights forces began using the term "pro-life" to characterize their movement. ("Pro-life" is a term that was actually invented after the end of the Second World War by Hitler's Pope, that great pro-lifer who kept his own counsel about the Holocaust during the War, Pius XII.) And since that time, even some elements of the pro-choice movement have used the term "pro-life" to describe the anti-choicers. Thus at least some focus has been lost over what was in fact at the center of Roe v. Wade, which was decided on a "right to privacy" interpretation of the 14th Amendment. But there is a very big additional support-for-individual liberties issue out there, beyond the “right to privacy” and the right to liberty in the control of one’s own body, just waiting to be mobilized. And that is the issue of religious authoritarianism.
As it happens, to repeat, the position of the anti-abortion-rights forces is based exclusively on the religious concept of "when life begins." But, to repeat again, that is an entirely religious concept. A prime example is Gov. Kay Ivey of Alabama, who has said that in her opinion "every life is a sacred gift from God." That obviously religious position is fine --- for her. But she wants that belief to be ensconced in the law. And the AL law, based on that religious concept, if allowed to go into effect, would imprison physicians or women-having-an-abortion or both, and the death penalty was considered. Cannot get any more religiously authoritarian than that.
For the Protestant side of the anti-abortion-rights movement the authority for their position is the "inerrant word of God" as found, for example, in one particular version of the Bible. The version most often cited by the anti-choicers is the “King James” version, an English translation created in the early 17th century by a 52-member committee of scholars and theologians. That is a point often missed by the "inerrantists," and their critics as well. If the King James version were to be regarded as "inerrant," one would have to assume that "God" spoke through every member of that committee. Could have happened. But what the hey? And, of course, what does that say about the myriad other versions of the Bible, appearing in numerous translations from the original Aramaic, Hebrew, Greek, and Latin? Are they “inerrant?” And if they are, why, it must be asked, did God wait so long to have an inerrant version produced?
As for the anti-choice Catholics, they rely on an 1869 dictum from Pope Pius IX that life begins at the moment of conception. (This Pope was also the one who established the dictum of Papal Infallibility.) That dictum happens to have reversed then-current Catholic doctrine, going back at least as far as St. Thomas Aquinas, that life begins at the "time of quickening." What is it that makes Pope Pius IX right and the revered Saint wrong?
What the Republican Religious Right wants to do is right out of the 16th century: put the power of the State and the criminal law behind one particular set of religious doctrines. To say nothing of forcing a fundamental violation of the Establishment Clause of the 1st Amendment that they totally ignore: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." And of course, it's not just the organized Religious Right. We now (2020) have an Attorney General who claims that a major enemy for our nation is "militant secularism." As a militant secularist myself, I take this particular charge most personally. And of course, one must then ask, if they succeed on this matter --- of specifying approved religions as well as non-approved non-religious belief --- what's next? The total violation of the Establishment Clause (in reverse) to go after folk who are non-religious?
What I am suggesting here is that in addition to defending the "woman's right to choose," the pro-choice/abortion-rights side needs to address this fundamental question: are religious fundamentalists going to be allowed to set social policy on one of the oh-so-many matters of personal being and belief, based solely on the religious dogmas that they personally adhere to. They so desperately want their religious beliefs to set social policy, as church-going steadily declines in the United States, that they advocate the employment of the criminal law to do so. Not only that, but the anti-abortion-rights doctrine, religion-based as it is, ignores the fact that many women who seek abortions, and their male partners, are themselves religious. They simply have a different set of religious beliefs than do the Fundamentalists and the Dominionists.
This is a position and a policy that can take us straight back to the religious wars in Europe and Great Britain of the 16th and 17th centuries. Perhaps if imprisonment doesn't work to stop women from having abortions and physicians from providing them, burning at the stake will be next. If the drive to establish religious authoritarianism on the matter of abortion as the governing doctrine for the nation is not stopped, right now, what will be next? And in my view if the pro-choice forces do not begin to fight on this issue, if we as a nation do get back to the time of Bloody Mary (the English Queen, not the drink), they will be as responsible for that state of affairs as would be the Republican Religious Right.
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Postscript:
It does look as if we are going to lose this battle in the Supreme Court. Should the Republo-fascists take the House and the Senate in 2022, or 2024, the first thing that McConnell, or a successor, will do is end the Filibuster. Then with "Roe" (before which each state could set its own abortion policy) gone, the Republo-fascist Congress can pass a national law banning abortion everywhere. How about them apples?
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This column is based in part one recently published on OpEdNews, “Abortion Rights: Once More into the Breach, Dear Friends.”