Reversing the Attack on Women's Bodily Autonomy
"Either this nation shall kill racism, or racism shall kill this nation." (S. Jonas, August, 2018)
This is the Diktat that the Republican Religious Right would install to have power over us all.
(Image by Rodel Bontes) Details DMCA
An introductory remark on the role of chance in history: On June 15, 1815, it rained in the vicinity of the Belgian town of Waterloo. Had it not, it is likely that Napoleon's artillery would have arrived in time for the upcoming battle, and he might well have won it. On June 17, 1972, a (stupid) burglar at the "Watergate" in Washington, D.C., twice left a piece of tape on a door-latch. If on his rounds a nightwatchman had just not happened to notice it, twice, and after he saw it that second time, had he not called security, what we know to this day as "Watergate" likely never would have happened. If Ruth Bader Ginsburg had lived, let's say, for another three months, I likely would not have been writing this column.
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A second introductory remark: As an old joke goes, on a panel, a Priest, a (Protestant) Minister, and a Rabbi were asked: "When does life begin?" The Priest answered "at the time conception." The Minister's reply was "at the time of viability." The Rabbi responded: "Life begins when the kids go to college and the dog dies." Yes, there are differences, even in religious belief, on this matter.
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In this country, we have been living with either answer 2 or answer 3 (or both) since the Supreme Court in 1972 determined that the right to privacy which had been found in the Constitution by a previous Supreme Court also covered a woman's right to choose to have an abortion, within certain time limits. As is all too-well known, the current version of the Supreme Court, which happens to be dominated by Catholics (see the note below on where the current Catholic doctrine that "life begins at the moment of conception" originated), has found that no, the right to privacy (which they have apparently left standing for some instances, at least for now) does not extend to the right to choose, for women, about what to do with their own body, in which a fetus happens to be growing. That decision by the Court is of course not a personal one, but rather a political one. And not only is it a political one but it is a political one that holds that the matter is not with in the province of the Federal government but rather that of the 50 state governments.
In his 66,102 words spread out over 118 pages* Justice Alito among other things tries to tell us that neither his opinion nor any of the state abortion-rights-ending laws have anything to do with religion. No, he tells us, they have to do with a very dense explanation of why certain precedents can stand, by what is called stare decisis, while others cannot. (I am not going to get into that one, except to say that of course it is a matter of opinion.) The reasoning as I said is rather dense, but for the most part it comes down to "I like this one (previous decision), but I don't like that one," like what Justice Scalia, who always claimed to be real, died-in-the-wool "stare decisis" kind-of-guy, did with every previous Superme Court ruling on the meaning of the 2nd Amendment, which he overthrew in "Heller."
Another part of the Alito opinion comes down to "rights are rights, except when they're not," and when it comes to women having control over what goes on in the own bodies (and in case of fetuses up to some time certain) they're not. Each and every woman's body is open to the "democratic process" in each of the 50 state legislatures. That is the 50 state legislatures are at complete liberty to tell women, with the force of law behind the "tell," what they can and (mostly) cannot do with a pregnancy.
And then, oh dear, Alito tells us that this ruling has nothing to do with religion. Rather it has everything to do with this Supreme Court's judgement that abortion-ban interference is one of a set of "social-life" decisions (which for Justice Thomas would include homosexuality and contraception but not [as many others have pointed out] interracial marriage) which are not be left to the individual (in this case the woman) but the government of the particular state in which she happens to reside. In the 66,102 words there is great deal of to-ing-and-froing by Alito in an attempt to explain the (il)logic (in my view) of this position, but by golly in the end the man just gives the whole game away: it is all about religion after all.
How do we know this? Well, in these 66,102 words the words "unborn human being" appears 11 times, and the word "unborn" a total of 19 times, all in critical, decision-forming places. (My oh my, isn't the word counter built into Word a wonderful thing.) And, as it happens, "unborn human being" is a distinctly Catholic doctrine. How do we know this? Well, it became Catholic Doctrine explicitly, and for the first time in the history of same, only in 1869 when Pope Pius IX set forth the dictum that life begins at the moment of conception. (That same Pope established for the first time the Doctrine of Papal Infallibility.) That dictum happens to have reversed Catholic doctrine, going back at least as far as St. Thomas Aquinas, that life begins at the "time of quickening." But since the self-designated "infallible Pope" said it, it is (as the current U.S. President would say) what it is. As for the anti-abortion-rights Protestants they find support for their position in one or 'tother of the versions of the Bible in English, like the King James version (which happens to have been written/translated into English from Latin by a committee of [obviously all divinely-inspired] theologians and academics).
So yes, with this Supreme Court decision, we are entering into a period of U.S. religious authoritarianism about which I and some others have been writing for quite some time. As it happens major players in the pro-choice movement, like Planned Parenthood and the American Civil Liberties Union, for the most part steered clear of this kind of approach to the matter, until the very end, when it was too late. What their reasoning for the avoidance was, I have no idea. Maybe they didn't want to offend anybody.
As it happens, as my regular readers know I have been writing on this issue since the publication of my 1996 "future history" book, "The 15% Solution: How the Republican Religious Right Took Control of the U.S., 1981-2022." In response to the "leaked" Alito opinion, a couple of months ago I published a relevant excerpt from the book which described (remember, it was a "future history," modeled actually on Jack London's "The Iron Heel") a (fictional) Constitutional Amendment by a then-future Christian-Rightist-Republican government that outlaws abortion nationally.
And so, where do we go from here? Very briefly for now, on the attack, using the First Amendment as our primary weapon. Let's leave "right to choose" (as a political argument/strategy, not as an absolute societal principle to be re-established) behind. Let's face it. It failed to win the war. Let's go full-fledged on the attack against religious authoritarianism and how any anti-abortion-choice law which is based on it (and they all are, in one way or another), designed to apply before the time of fetal viability outside the womb uses a definition of life based on one religious conept or another. As such, it violates the "establishment clause" of the First Amendment, which says: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech." For those who might say that abortion should be illegalized not on religious grounds but on the "I think so" ground, the next clause of the 1st applies: "abridging the freedom of speech."
An onslaught of litigation should be launched against every state government which is already enacting their "trigger" laws and launched those are prepared to quickly enact abortion bans. They should be tied up in knots. Litigation, as we know well, as has been the case with the destruction of the rights guaranteed by Roe v. Wade, can last for years. If such cases got to this Supreme Court, it would be very interesting to see just how they right-wingers would wiggle around to get out from under the first Amendment. And who knows, it might take so long that the structure-composition of the Court would have been changed, in one way or another.
Now is not the time to give up. Now is the time to begin new legal assaults on Christian-Rightist-Reaction in the United States and it thrilling to know that various types of challenges have already begun.
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*THOMAS E. DOBBS, STATE HEALTH OFFICER OF THE MISSISSIPPI DEPARTMENT OF HEALTH, et al., PETITIONERS v. JACKSON WOMEN'S HEALTH ORGANIZATION, et al. on writ of certiorari to the United States court of appeals for the fifth circuit. Opinion by Justice Alito.
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Postscript on the politics of freedom of choice in the outcome of pregnancy, and the far, far reach of those politics.
In 1931, the then-famous U.S. humorist Will Rogers famously said: "I don't belong to any organized political party. I'm a Democrat." Republicans, for the most part, don't have that problem. In 1980, Ronald Reagan, running for President, having come out of Hollywood where abortions were a dime a dozen, saw the political opportunity of the decade: get on the ban-abortion train then being led by Jerry Falwell and the Repub. Party will eventually get to the political promised land, regardless of any other polices it might, or might not, have. And they stuck with it, and lo and behold, that 6-3 majority on the Supreme Court will be serving many other purposes for the Republican Party, purposes on which they could not possibly have run --- like making your air ever more difficult to breath while guaranteeing the profits of the fossil fuel industry(s) for as far as the eye can see (that it until the air gets too smoke filled to see even them).