Samuel Johnson, the literary critic and poet and essayist, and the man who compiled and wrote the first English dictionary, because he was angry with the French for being the first to try to stabilize their language – he could do better – was grumpy man. His tale Rasselas was better and far more sensible than Voltaire’s Candide. He knew better about everything, actually, and he said so. Often. He thought the American Revolution was a bunch of nonsense, traitorous nonsense. And he had a quip for everything. He didn’t think much of any sort of legal rights for women – “Nature has given women so much power that the law has very wisely given them little.”
Johnson died in 1784 but that last notion lived on. At the end of the next century all those suffragettes would be in his London streets demanding the right to vote, as if they were actually citizens too, and not just women. And that’s what they got. Here, the first women’s suffrage amendment was introduced in Congress in 1878 – but a suffrage amendment didn’t pass the House until May 21, 1919, and that was quickly followed by the Senate, on June 4, 1919. That amendment was immediately submitted to the states for ratification and got the requisite ratifications to secure adoption and went into effect on August 18, 1920 – and that was that – women were citizens too, not just women. They could vote. Their wishes mattered too. No one was quoting Samuel Johnson anymore, at least on this issue.
But this was the issue in Roe v. Wade, 410 U.S. 113 (1973) – the Supreme Court ruling that women had the right to abortion, up until there was a competing interest, up until the fetus was viable at the beginning of the second trimester. But up to that point, this was the woman’s choice. The government had no business telling them what to do or not do in that first trimester. Women had rights too.
Now, they won’t. Women can still vote, for now. But soon they will not be able to seek an abortion for any reason. That right is as good as gone.
How do the Republicans and their new custom-built Supreme Court explain that to a nation that has been fine with Rose since 1973 – a steady sixty-two percent approval over all the years? That’s easy. Talk about something else. The Washington Post’s Sean Sullivan and Seung Min Kim cover that:
The volatile issue of abortion catapulted to the center of the political debate Wednesday after the Supreme Court signaled it would uphold a law undermining Roe v. Wade, creating the potential for the polarizing matter to reshape the electoral battlefield.
Democrats immediately signaled they would aim to make abortion rights a central focus in next year’s midterm elections, where their prospects have been viewed as dim, while many Republicans sought to keep the focus on inflation and other problems facing President Biden.
“This is an attack on women to make their own health-care decisions. Their families, it’s up to them,” said Sen. Patty Murray (Wash.), a former chair of the Democratic Senatorial Campaign Committee. “To have politicians decide, to me, is just frightening, and I expect a lot of voters will react to that.”
No, women are submissive. They’ll do what they’re told. And really, there are far bigger issues:
Sen. Rick Scott (Fla.), chairman of the National Republican Senatorial Committee, in contrast demurred when asked whether he believes abortion will be a motivating issue for Republican voters.
“They’re talking about inflation. They’re talking about the border. They’re talking about the Afghanistan debacle. They’re talking about parental involvement in education,” Scott said. “If you look at the polls and what people are caring about, that’s what they’re focused on.”
That’s what he hopes. But the other side has hopes too:
Would Wednesday’s bombshell Supreme Court argument, where the conservative majority suggested it was prepared to sharply cut abortion rights, energize liberals after decades when the issue has been a more powerful motivator for the right?
That should worry all Republicans:
The court’s ruling could come as late as next June, meaning it would land while campaigning is in full swing for the November 2022 congressional elections.
The reactions also underlined Democrats’ urgency to find new ways to shake up the political dynamic, as Biden’s approval ratings have plummeted and the party has struggled to make its case.
One Biden adviser, who spoke on the condition of anonymity because they were not authorized to speak on the record, said abortion was an issue that could move swing voters, particularly suburban women, back to the Democrats’ corner.
Republicans’ caution, in turn, reflected a determination not to alienate these voters. Many centrist voters began to turn away from Democrats over economic concerns, but polls suggest they would be wary if long-established reproductive rights began to crumble.
Telling women to sit down and shut up and do what they’re told, and to stop claiming all these damned rights, to be submissive good little girls for a change, might have them voting against all that, in big numbers. Republicans must realize they don’t have time to repeal the Nineteenth Amendment before the midterms – the process is complicated – so they need to be careful.
But this was inevitable:
Wednesday’s hearing served as a reminder of former president Donald Trump’s enduring influence on the federal bench. Trump ushered in the most conservative Supreme Court in decades, and the day’s events emboldened supporters of Trump, who has signaled interest in running for president again.
Trump sealed the loyalty of many conservatives in the 2016 campaign by releasing a list of his potential justices, all of them dubious of Roe, during the presidential campaign. That yielded three justices who were key to Wednesday’s argument – Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett.
The current dynamics also mark the culmination of a decades-long conservative project to move the federal judiciary to the right, especially on abortion, led by such groups as the Federalist Society.
Trump didn’t care what sixty-two percent of Americans thought. There wouldn’t be a popular vote on this. Congress wouldn’t vote on this. He had his new custom-built Supreme Court. They’d vote on this.
Trump completed the Republican campaign to bypass the people:
Democrats were particularly enraged when then-Senate Majority Leader Mitch McConnell (R-Ky.) blocked President Barack Obama from filling a Supreme Court vacancy after Justice Antonin Scalia’s death in 2016, then pushed through Barrett’s confirmation shortly before the 2020 election.
And now poor Joe is at a loss:
President Biden, a Catholic who does not speak often about abortion publicly, continued his cautious approach of saying relatively little, leaving questions about how much he will use his platform to boost the party’s efforts.
“I didn’t see any of the debate today,” said Biden, when asked by a reporter about his reaction to the Supreme Court argument. “And I support Roe v. Wade. I think it’s a rational position to take, and I continue to support it.”
White House press secretary Jen Psaki said Biden had “quite a busy schedule” and would be briefed by his team on the hearing. Biden believes “the Mississippi law blatantly violates women’s constitutional rights to safe and legal abortions” and is “committed to working with Congress to codify the constitutional right to safe and legal abortion,” Psaki said.
He knows this is lost:
Rep. Val Demings (D-Fla.), running to unseat Sen. Marco Rubio (R-Fla.), fired off at least four tweets on abortion Wednesday, warning that justices “should be extremely careful not to submit to political forces by overturning five decades of established law which protects American women.”
The DSCC, the campaign arm of Senate Democrats, issued a statement drawing attention to the hearing.
“A woman’s right to make our own health care choices will be a defining issue in the 2022 midterms, and for voters it will reinforce the stakes of protecting and expanding our Democratic Senate Majority with the power to confirm or reject Supreme Court justices,” said spokeswoman Jazmin Vargas.
In contrast, when asked whether the abortion issue could factor into his reelection bid next year, Rubio took a low-key approach, saying that “it’s never been a political issue to me.”
In short, what’s the fuss? This is no big deal:
Other Republicans emphasized that if the court does strike down Roe, each state would decide whether to outlaw it, meaning it would almost certainly remain legal in Democratic-leaning states.
“I think that there’s a lot of misunderstanding about what the Supreme Court may do and what its impact would be,” said Sen. John Cornyn (Tex.), who has previously helmed the Senate Republican campaign arm. “Abortion is still going to be available in the United States, but it’s going to be decided on a state-by-state basis.”
Women in Texas or Mississippi can just buy a plane ticket and fly to California or New York for a few days, if they want an abortion. What’s the big deal? That would be this:
Democrats counter that this would still leave disadvantaged women in Republican-led states with few options.
Abortion rights advocates have argued that if the court strikes down Roe v. Wade, it would empower dozens of states to ban the procedure in all but the most limited of circumstances. Democrats eyeing local races seized on that threat Wednesday.
“We must invest in, organize, and elect Democrats to state legislatures where they can enshrine these and other fundamental rights,” said Democratic Legislative Campaign Committee executive director Heather Williams in a statement. “The Supreme Court won’t save us, but Democratic state legislatures can.”
So this becomes a state-by-state battle. But the principles remain the same. Jennifer Rubin sees those principles this way:
As the Supreme Court considers the Mississippi abortion case, pro-choice advocates would do well to expose the fundamental dishonesty in the “pro-life” movement that it is about saving innocent life.
Set aside for a moment all the questions about personhood and the fact that many religious traditions do not recognize personhood at conception.
Instead, focus on the contention from antiabortion activists that a woman’s right to bodily integrity must be sacrificed for the sake of another. This is a rule that is applicable in no other situation.
In what other context is someone’s body, health and daily life commandeered to save another? No one would countenance a law that said a person who is a bone marrow or organ match is legally obligated to donate to another. There may be a moral imperative (if the person’s life and health would not be impacted), but we do not override an individual’s bodily integrity against his or her will even for noble purposes. We generally do not punish bystanders who refuse to come to the rescue of others in distress, especially when there is any risk to themselves.
So why this? Yes, many religious traditions do not recognize personhood at conception. Rubin is Jewish. She knows that. Only evangelical Christians hold the personhood begins at conception, at which point that microscopic little two-cell “person” has full legal and human and constitutional rights, that do trump any rights of the mother, the “vessel” in this case. That’s why they claim all abortion is murder, the murder of actual children, and so is all birth control. God intended that this particular sperm merge with that particular egg. God imagined a specific child. Your condom murdered that child, and so on,
But there’s more to this;
The motives behind the antiabortion movement become clear when one recognizes that even though abortion is legal, the incidence of abortion has dropped dramatically. Hence, permissive laws do not mean the procedure happens more often. If we want to reduce abortions, we arguably should be doing precisely what we have been doing over the past few decades.
Moreover, these same voices roundly reject the obligation of self-sacrifice for others’ health when the inconvenience is far more trivial than the emotional, physical and financial burden of a nine-month pregnancy. The “my body, my choice” slogan from anti-mask and anti-vaccine advocates is the most stunning example of their refusal to compel even minor inconveniences to save innocent life. They refuse to apply that same demand for bodily autonomy in the abortion context.
But wait, there’s more:
Likewise, the same right-wing advocates for criminalizing abortion reject any slight inconvenience for gun buyers, such as background checks, even if it might save hundreds, if not thousands, of lives. Their Second Amendment rights trump everyone else’s safety. The only ones denied the right of self-determination are pregnant women.
Indeed, in no other context does “innocent life” eviscerate all other liberties and interests. They demand we keep stores open to sustain the economy, even if doing so imperils others. They blithely vote to chop Medicaid funding in the name of fiscal sobriety (even though they are happy to support tax cuts for the wealthy), making lifesaving addiction treatment more difficult to access. And they routinely oppose environmental regulations – economic freedom! – to restrict pollutants that threaten the health and lives of others.
So most of this pro-life stuff is bullshit:
A free society must allow a realm of personal freedom and a sphere of personal autonomy. We recognize the unacceptable price of overriding that zone of personal integrity in certain intimate matters. We dare not give government the right to override bodily integrity even for very good reasons.
The Supreme Court may well uproot decades of precedent on abortion rights. State legislatures may follow with abortion bans. But let us not pretend this is about the noble principle of “saving innocent life.”
This is about denying women in particular the power to decide whether to undergo a substantial physical, hormonal, emotional and financial obligation for nine months. Until we are ready to demand commensurate obligations for all Americans in a host of other contexts and severely limit their personal autonomy (at great personal inconvenience and cost), we should be honest enough to recognize this is about controlling women, not about innocent life.
And then Rubin gets specific:
Supreme Court Justice Sonia Sotomayor said it better than any of the court’s external critics. “Will this institution survive the stench this creates in the public perception, that the Constitution and its reading are just political acts?” she asked during oral arguments on Mississippi’s abortion law on Wednesday. “If people believe this is all politics, how will we survive? How will this court survive?”
She was referring to the apparent willingness of the court to overthrow precedent simply because its membership changed. (The usual reasons for overriding precedent – such as new facts or an evolving social consensus – do not apply in this case.) As the solicitor general and the counsel for the Center of Reproductive Rights argued, this is the first time in history that the court will rip up decades of precedent to take away a fundamental personal right.
I trust Sotomayor’s query was rhetorical; the court will remain in its august building. But should it repudiate abortion rights, any pretense that it is above politics will vanish, in no small part a result of the blatant partisan agenda and intellectually pathetic arguments displayed on Wednesday.
Intellectually pathetic arguments? Yep:
Justice Brett M. Kavanaugh, who apparently snookered Sen. Susan Collins (R-Maine) into believing he considered abortion precedent “settled,” made the most disingenuous argument of the morning. Why can’t the court just be “neutral” on abortion, he asked. Some states would still allow abortion, right?
This is not how constitutional law works. The court is not “neutral” on the First Amendment or the Second or the 14th. It is there to uphold rights against political branches seeking to intrude upon – if not destroy – individual liberties. In declaring itself “neutral,” the court would be denying the right to an abortion affixed to nearly 50 years of precedent.
And there was this:
In terms of sheer frightfulness, nothing quite topped Justice Amy Coney Barrett, who repeatedly asked why the whole problem was not solved by the fact that women could just give up their child at the conclusion of their pregnancy. In other words, women can be forced to complete a pregnancy against their will, in violation of the 14th Amendment, because they do not have to keep the child.
This, of course, misunderstands the entire issue: It is about whether the government can violate a woman’s bodily autonomy, something we would not dream of doing in other contexts. Why do we not force people to give up kidneys for organ donation, given that at the end of the procedure, they will – probably – return to full health?
But wait, there’s more:
She was outdone in the realm of theocratic arrogance only by Justice Samuel A. Alito Jr., who repeatedly referred to the interests and rights of a fetus. Where did that come from? Certainly not the Constitution, which speaks of “persons.” The notion that a fetus is a person is not shared by all faith traditions. Those who have accused right-wing justices of seeking to impose one strain of Christian doctrine on the rest of the country sadly have been proved correct.
And there was this:
Anyone counting on Chief Justice John G. Roberts Jr. to be the voice of restraint was sadly mistaken. In the guise of finding a way to overrule nearly 50 years of precedent without explicitly doing so, he asked the litigants why we couldn’t make the dividing line (after which the state can prohibit abortion) at 15 weeks rather than at viability? Well, then, what’s wrong, with 10 weeks, or six weeks?
The chief justice proposes to remove the only fixed and clear demarcation point for abortion rights, thereby inviting states to outlaw the vast number of abortions.
Rubin offers more, but it all comes down to this:
We are, in short, on the verge of a constitutional and political tsunami. What was settled, predictable law on which millions of people relied will likely be tossed aside. The blowback likely will be ferocious. It may not be what Republicans intended. But it is coming.
This will not end well. American women may have to take back their country. It is their country s too, isn’t it? They can still vote, for now.