Abortion is front and center in the news today as a result of the decades old pressure by a significant number of the Evangelical base of the Trump Old Party, (TOP), formerly the GOP. The obsession about banning abortion totally, with no exceptions for rape or incest, is one of the few articulated policies of TOP, (the other being guns). Trump, who was aided and abetted by Senator McConnell’s cynical hypocritical manipulation of judicial selection, has ensured the eventual demise of Roe v Wade with three Supreme Court judicial picks who Trump promised would do just that.
Roe v, Wade and its subsequent key affirmation Casey has protected the women’s right to choose for the past fifty years. That law is being challenged by the Mississippi State Legislature and the case is to be decided by the Supreme Court of the US. A Supreme Court which has six of the nine members of the Federalist Society - a highly conservative body which has dedicated itself to educate the legal community to its value system.The Supreme Court of late has been accused of being politicized resulting in its approval rating dropping to record lows. The current debate over a women’s right to choose will increase the perception of it being partisan.
Nobody “likes” abortion - least of all those who have to make the decision as to whether they should terminate a pregnancy or not, regardless of the circumstances of the conception. Discussion around the topic is not commonplace and ignorance willful. Few are aware, for example, that the preferred method of abortion up to ten weeks is via medications. Ironically, or not so ironically, it is men, usually white men, who decide on the legality of the issue. Women, studies have shown, if they cannot have a legal abortion, will often resort to a dangerous illegal alternative.
THE FEDERALIST SOCIETY, ABORTION, ROE v WADE AND THE SUPREME COURT
The Federalist Society, which was founded in 1982 by the conservative students of the prestigious Law Schools of Yale, Harvard and Chicago Universities to challenge liberal values that were being manifested in the interpretation of the of 1789 American Constitution. One of the central themes behind the formation of the Society was the fact that throughout history Republican appointed judges had often provided the swing votes to support “liberal” values. The Republican appointed Judges such as Stephens, O’Conner and even Kennedy were periodically persuaded that the Constitution had to be interpreted in relation to the times that prevailed.
The objectives of the new society were to check Federal Power and Ito interpret the Constitution according to its original 1789, as amended in 1792, meaning. Ironically also one of its aims was the protection of “individual liberty”. The Federalist Society has reached the height of its influence with the current Supreme Court where the six Conservative Judges on the bench have had affiliation with the organization. The Society is heavily funded with “dark money” as well as from the usual “suspects” including the Scaifs and the Kochs. In several exposes Leonard Leo of the Federalist Society has been named as the co coordinator and fund raiser of the project to elect Federalist members to the Supreme Court.
The fifty year struggle against the “individual liberty” of a women’s right to choose has finally reached its pinnacle with a sympathetic Supreme Court about to sanction State control of a women’s body. The debate is ostensibly about lessening the gestational period in which an abortion can be enacted. But to illustrate the objective of the “Republican” protagonists they have already put into place a law in Texas which effectively ends all legal abortions. The latter by means of a draconian law that empowers vigilantes to enforce it. (The Supreme Court have not put an injunction on that Texas Act till such time as they can consider it). There are also almost two dozen restrictive laws lying dormant in States controlled by the “Republicans” ready to put in effect should Roe be overturned.
On its face the law the Supreme Court has heard argument on merely impacts the period up to which a women could obtain a legal abortion however there was little doubt that this is the thin edge of the wedge. Only Chief Justice Roberts is pretending that it isn’t what it is. The State of Mississippi openly declared the motivation for this legislation in its lengthy brief to the court, was calling for the overturn of Roe v Wade. Mississippi legislators made it clear that with the current make up of the Supreme Court, including three new Federalists, this was the time for negating Roe v Wade,
The Roe v Wade Supreme Court decision had ensured the right of women free choice as to whether they could terminate their pregnancies was decided in 1973. Following that decision the backstreet abortion rate dropped dramatically and by 1974 the number had decreased from one hundred and thirty thousand to seventeen thousand. The law gained precedent after precedent notably in the 1992 landmark case - Planned Parenthood v Casey.
The US Supreme Court is an unelected body whose members are appointed for life. In their naïveté the Founders gave them the divine right to be the final arbiter of the American Constitution and in fact everything else. The Founders wanted to get rid of a single monarch but some how inexplicably allowed the institution of unfettered power to what is now a cabal of nine, some of whom behave as if they were indeed appointed by G-D, not by a messy unholy political process. In fairness to Trump the “Republican” Party, in the knowledge that any Judge certified by the Federalist Society was guaranteed to axe Roe, has via, George Herbert Bush, (Justice Thomas), George W. Bush, (Justices Alito and Roberts) and lastly Donald Trump, (Justices, Gorsuch, Kavanaugh and Barrett), have ensured the desired outcome..
Jay H. Ell realizes that there are those with strong religious views on the subject. These citizens have a right to have their views respected. However as Judge Sotomayor pointed out this total anti abortion crusade, which has no provision for women who are raped and where incest is the cause, is religiously inspired. (The American Constitution expressly separates Church and State). Different religions have sharply divergent views on the dividing line as when the fetus is “viable” and when the soul enters the body. Also the argument of the sanctity of life that some protagonists of complete denial of abortions rings somewhat hollow as those self same people are supporters of the death penalty. The bulk of the movement is also against any form of contraception. Several of the protagonists have denied that Covid or HIV, both that have claimed eight hundred thousand lives, are “a thing”.
The crisp point is whether in a secular society any religious view can trump the rights of individuals who in fact collectively make up the majority.
So onto the nub of oral arguments that were heard in the Supreme Court in the denouement of the battle on abortion.
THE ORAL ARGUMENT IN THE STATE OF MISSISSIPPI’S ABORTION LAW, (DOBBS V JACKSON WOMEN’S HEALTH ORGANIZATION).
There was the text and subtext to the oral arguments on the Mississippi Law which had as its stated intent to overturn Roe v Wade. However on its face it merely moved the limit from twenty - two weeks to fifteen weeks as to how long women were entitled to control their bodies. The rationale for the initial limitation in Roe and Casey was that the fetus was considered to be viable at twenty - two to twenty - four weeks. There was no rationale for the arbitrary date selected by the “Republican” legislature other than as this move, on its face, did not appear draconian it would make it easier to get everyone on board.
Any rational observer listening to the oral arguments would have to agree that there could not be a more unqualified body of unsympathetic ignoramuses deciding this deeply personal, ethical, practical and medical question. The fact that the Supreme Court took this matter up in what was considered “decided’ law was in of itself a confirmation of the Mississippi legislators’ assessment that the Judges of the Supreme Court had changed. Nothing else in medicine, science, ethics or religion had emerged other than the Constitutional arbiters of what is right or wrong - “The Deciders” as George W. Bush might have put it, would be inclined to agree. Society itself was probably at the zenith of acceptance of the status quo - ninety - one percent of women believed that this decision was best made between patient and doctor. They in effect were arguing in favor of “privacy” which incidentally was one of the bases of the initial ruling on Roe and its subsequent reiterations.
Justice Sonia Sotomayor who with endless interventions laid bare the patently political challenge to women’s rights summed up the death knell of Supreme Court as an independent institution as follows: “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts”. Her rationale was echoed by Justice Breyer who maintained that “… to re examine a watershed decision would subvert the Courts legitimacy….” While Justice Kagan enjoined, “…. Fifty years of law under the bridge…..”. Kagan implied that the same arguments could have been made fifty years ago.
So much for the prophets now for for the Federalist Society.
The key historical protagonist of the argument against abortion rights, the most senior justice on the court, Justice Thomas, maintained that nowhere in the Constitution was there a right to abortion. An argument which is ridiculous as there is nothing in the constitution about sexual harassment, rape, AK 47’s, driving under the influence of liquor and on and on. Justice Kavanaugh, the darling of the Federalist Society, listed a whole lot of precedents that were established law that were overturned. What he failed to reveal was that each and everyone increased the liberty of individuals while the Mississippi Law was retrogressive as to a women’s rights. Justice Alito questioned whether a decision, “….. must be overruled because it was egregiously wrong at the moment it was decided…”. The learned Judge did not put forward any meaningful arguments as to what was wrong then. Justice Gorsuch left no doubt as to where he stood on the matter.
Judge Amy Barrett shocked the most neutral of observers when in her intervention she showed no understanding or empathy of a woman, a few of whom may have been raped or have been the victim of incest. She seemingly ignored the physical and emotional impact of the nine month period of bearing an unwanted pregnancy and its aftermath, “…..Insofar as ….the focus..in which forced parenting forced motherhood would hinder access to the workplace and equal opportunities,,,, Why don’t the safe haven laws take care of that problem…”. The safe haven laws allow you to dump a delivered child at a hospital without any legal problems!.
It was left to Chief Justice Roberts to salvage what could be left the Court’s moral authority. Regardless of the fact that the Mississippi plaintiffs wanted an overturn he would proceed incrementally and see this as a reduction to the right of abortion up to fifteen weeks. The Chief Justice omitted to address the fact that there was no exception for rape and incest. It remains to be seen whether he can convince another of his Federalist colleagues to join him as he is no longer the “swing” vote on this court.
It is interesting to note that three members of the Conservative group have taken exception to the smear that they are “political hacks”, a term used by Amy Barrett. The height of hypocrisy emanated from Justice Thomas who assured an audience that his decisions were based on the law. Chief Justice Roberts informed Trump that there was no such concept as Bush, Obama or Trump judges! In the light of of these assertions it would be useful to learn what each and everyone of these objectors to Roe said about the subjects at their confirmation.
OPINIONS ON ABORTION RIGHTS AT THE CONFIRMATION HEARINGS OF THE FEDERALIST JUDGES AND THE POLITICAL CONSEQUENCES
Paul Waldman of the Washington Post wrote that all six of the Federalist Judges, in their confirmation hearings with regard to abortion rights were not vague, evasive or deceptive they outright lied….”They lied. They lied to the Congress and to the country, claiming they had no opinions at all about abortion, or that their beliefs were simply irrelevant to how they would rule. They would be wise and pure, unsullied by crass policy preferences, offering impeccably objective readings of the Constitution, It. Was. A. Lie. We went through the same routine in the confirmation readings of every one of the those justices. When Democrats tried to get them to state plainly their views on Roe v Wade they took two approaches. Some tried to convince everyone that they would leave it untouched. Others, those already on record proclaiming opposition to abortion rights, suggested they had undergone an intellectual factory reset enabling them to reassess the question anew with an. unspoiled mind, one concerned only with the law”
One fact is for sure that the “impartial” arbiters of the Constitution are going to have their interviews played and replayed on television and the internet. Justice Sotomayor hit the nail on the head when she remarked on the “political stench” the projected ruling would evoke. It might well have repercussions at the ballot box because this is what Trump promised. McConnell the “Republican” Senate leader who stole two Judicial nominees from the Democrats has stated that his party has no policy going into the midterms other than to expose the disaster that is Biden. Like it or. not banning abortion was number one on the list that they have all run on the past. (Be careful of what you wish for). The other major plank is gun rights where they are about to witness another major embarrassment. The Supreme Court are going to rule on the New York State’s ban on concealed carry of guns. In the light of the Michigan School Shooting, the fiftieth this year, their projected liberal interpretation of the Second Amendment will justifiably evoke disgust.
ROBERT”S SALVATION OF THE SUPREME COURT AS AN INSTITUTION IS A NON STARTER
Chief Justice Roberts is very sensitive about the legacy of his court so his interim compromise of not overturning Roe and just changing the date by which abortions may be performed won’t fly as it has no legal, medical or ethical basis and will be challenged again and again. Any rate his legacy is already in tatters as historians examine his swing vote in eighty decisions - a few notably paving the way for voter suppression. Should the court not axe Roe he and the Republicans generally will be hammered by the base as confirmed by Senator Cruz and articulated by Laura Ingraham, a Fox News key opinion leader:
“If we have six Republican appointees on this court, after all the money that’s been raised, the Federalist Society, all those big fat - cat dinners - I’m sorry, I’m pissed about this - if this court with six justices cannot do the right thing here, then the Republicans should blow it up and pass some kind of law limiting the court’s authority”. That just about sums up the whole big “stench”.
AT THE END OF THE DAY
If Roberts wants to redeem himself and begin to have some semblance of the legacy he so desires he should resign. He does after all maintain that he is no longer a member of the Federalist Society.
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