Gobsmacked!

Judge Alito pondering the fate of Roe v. Wade

One of the problems with innovative medical technology is that you can see things you never saw before like a beating heart in a 6-week old fetus.  This allows persons to readily identify with this embryo, both as prospective mother and religious conservative.  If you're ready to become a mother, you're happy to know that there is a life beating inside you.  If you are not, this consigns you to a 9-month pregnancy that you did not want for whatever reasons of your own.  Such was the case with a woman in Texas, which John Oliver highlights in his latest segment of Last Week Tonight.  This woman had to go to Oklahoma to get an abortion because Texas didn't allow it.  Fortunately, for her this was before Oklahoma passed similar fetal heartbeat legislation of its own.

Conservative states have been playing fast and loose with Roe v. Wade ever since it was decided upon in January 1973.  They find all kinds of ways to make it difficult for women to get abortions even if it is their Constitutional right to do so within the first 3 months of pregnancy.  States have found ways to cut this time in half with fetal heartbeat legislation.  They have also made it increasingly difficult for small clinics to perform abortions, as they basically have to meet all the regulations of a state hospital, including size of hallways and other design features for much larger buildings.  John Oliver went over that too in a 2016 segment.  This was thanks to a 1992 Supreme Court decision that basically allowed states to add restrictions to Roe v. Wade.

As much as people like to say the 1973 decision was liberal motivated, the composition of the Supreme Court at that time included 6 justices appointed by Republican presidents, and 3 by Democratic presidents, which is exactly the same as we have today.  Yet, these mostly conservative male judges voted 7-2 in favor of the plaintiff, Norma McCorvey, who went by the alias Jane Roe.  She too was from Texas.  What the court decided is that states could not restrict abortions within the first trimester of pregnancy, and only do so in the second and third trimesters provided the mother's life was not put at risk.  Seemed fair enough, but not to the growing Evangelical political movement in the country.

These religious conservatives have likened abortion to murder throughout the decades, and one might say centuries if they had been around that long.  The Evangelical movement was born out of the 19th century religious "awakenings," but takes its precedent from Biblical times.  In their minds, they are directly interpreting God's laws.  You might call them the American version of the Taliban.

It has always been odd to me that they place so much value on an embryo when there are so many unwanted children in this country.  You would think this is where these good Christians would place their concerns.  However, there is something about an unborn child that inspires hope.  No sins, other than "original sin," have yet to accumulate, so essentially you have a clean slate.  God knows what lurks in the hearts of these unwanted children?  Although I would  think this would represent a wonderful challenge to church members who pride themselves on salvation.

Nevertheless, abortion has risen to the ranks of the Ten Commandments when it comes to Biblical law, even if God made no direct mention of it.  No problem, as far as Judge Alito is concerned, whose draft decision was leaked, he cited Sir Matthew Hale, a notorious witch-hunter from the 17th century.  The absurdity of it all has not gone unnoticed, but nevertheless this decision is likely to prevail this summer, sending Congress into a mad flurry trying to codify the 1973 decision into law, which it should have done a long time ago.

No one wanted to touch the issue for fear of the anger it would stir up among the electorate.  Roe v. Wade was not highly popular in the 70s, and many persons mobilized against it, not just religious yahoos like Rev. Jerry Falwell.  So, Congress kicked the can down the road, hoping for a time it wouldn't be such a polarizing issue.  Now, it is too late as the Democrats don't have the votes to pass such legislation, and the anticipated Supreme Court decision could go into effect this summer, once again allowing states to ban any abortion at any stage of pregnancy, no longer having to skirt Roe v. Wade like they have for the past 50 years.  McConnell has even suggested that Republicans would codify the proposed new decision into law if they win the majority in Congress.  One step forward, followed by two steps backwards.

Sadly, this is the nature of American politics in general.  We make great strides at key moments in history only to double back and undercut those crucial decisions and legislation, using the Supreme Court as a proxy for these cultural wars.  It doesn't matter that most persons in this country support Roe v. Wade, the good folks of Mississippi, Texas, Oklahoma and 23 other states do not.  The minority rules, which has also been the case throughout American history.

Whether it was restricting women and persons of color from voting, or carving out voting districts that limit representation, conservative legislatures always seem to find ways to disenfranchise a large segment of the electorate within their states, and then impose their will on the nation by tipping the balance of power in Congress, and indeed Presidential elections in their favor thanks to the Electoral College.  Five of the current Supreme Court judges were appointed by two Republican presidents who lost the popular vote.  So, all this gerrymandering works, especially when the Supreme Court chooses to ignore it.

No wonder so many Americans are deeply cynical of politics.  They figure there is nothing they can do about it.  So, when Trump comes along, many think he is the answer to all their woes.  Four years later, the Republicans finally have the 6-3 majority they have long wanted on the Supreme Court to counter the sometimes vacillating Chief Justice Roberts, who by the way isn't signing onto the decision written by Judge Alito.  Instead, he is trying to blunt it.

The Republicans gained this judicial super majority by every hook and crook imaginable, even convincing the good lady of Maine, Susan Collins, that these young Supreme Court nominees would in no way tamper with Roe v. Wade.  She had their assurances.  Needless to say, she looks pretty gobsmacked right now.  Of course, we all knew these judges would deliver for the religious conservative community.  They were hand-picked by the Federalist Society.  The only one who doesn't always do their bidding is Chief Justice Roberts.  Ms. Collins definitely knows this, but voted in favor of Gorsuch, Kavanaugh and Barrett anyway.  Maybe she thought one of them would turn out like Roberts.

You have to hand it to the Republicans, they are master strategists.  They not only denied former President Obama the right to nominate a potentially fifth "liberal" judge in Merrick Garland, but forced through Amy Coney Barrett's nomination in the final month of Trump's term so that they would no longer have to worry about Roberts.  

At least this time around the Democrats got smart, politely asking 83-year-old Stephen Breyer to step down, and confirming Ketanji Jackson Brown before the midterm elections.  Even still, Ms. Brown was run through a conservative gauntlet despite having vastly more experience than the previous conservative judges they confirmed, leading one to ask who is being ideological here?  This is what the Democrats should have done with Ruth Bader Ginsburg before the 2016 election, but everyone was so sure Hillary Clinton would win that RBG would have a woman president select her replacement.  So much for sentimentality. 

Democrats have to realize that Republicans are playing by a vastly different set of rules now.  "This isn't your grandfather's Republican Party," Senate majority leader Chuck Schumer said after the leak.  "It's Donald Trump's Republican Party."  While that is giving Trump far more credit than he deserves, Schumer's point is well taken.  After all, Roe v. Wade was decided with 6 Republican-nominated judges sitting on the bench.  Democrats can no longer allow their party to be portrayed as extremists, which is what Ted Cruz is trying to do with this leak.  It is abundantly clear that the Republicans are the extremists, and we all know which Supreme Court decision they will go after next.