Dylan in America

We all knew it was coming but it was still a shock to hear the Supreme Court revoke Roe v. Wade.  I held out hope that Chief Justice Roberts would get the younger judges to listen to reason rather than siding with the antediluvian mind of Judge Alito, who trotted out 13th century precedents in his majority decision paper that stretched for over 200 pages.  The case was supposed to be about Mississippi's attempt to close the door on all abortions after 15 weeks, whereas Roe v. Wade set the limit at 20 to 24 weeks.  Instead, the Alito court decided to do away with this 1973 decision all together, reversing nearly 50 years of precedent.

Judge Alito would like Americans to believe Roe v. Wade was a bad USSC decision to begin with and had no business being the "law of the land."  In his very narrow interpretation, he claimed that abortion had never been acceptable in our society before Roe, and that this was a decision that flew against the "original intent" of the Constitution.  No one has been able to make much sense of this narrow view as it tends to cherry pick from the Constitution the same way religious conservatives do from the Bible.  He, like many on the Religious Right, believe the Constitution to be divinely inspired despite Madison's strong opinions on the separation between Church and State.  However, Alito is smart enough not to reference the Bible directly, instead turning to 13th century British Common Law to validate his beliefs.  This did serve as a precedent to the Constitution.

What Alito fails to grasp is that the Constitution was never meant to be a final document, but rather a work in progress.  That is why we have amendments, each in the spirit of the preamble to create "a more perfect Union."  That is what the Founding Fathers intended, otherwise they wouldn't have written Article V on how to amend the Constitution.  Through the years, the Constitution has been  amended 23 times in an effort to make ours a more egalitarian society, free of religious constraints, especially those punitive in nature.  With this decision, the Alito court essentially strips women of their individual rights, leaving the states to decide the fate of their bodies when it comes to pregnancy.  

We all have our views on the subject, but whose right is it to tell a woman that she must carry her baby to term regardless of the consequences of her pregnancy?  The short answer is no one, but the Supreme Court justices weren't quite willing to go that far in 1973.  They decided that a woman was essentially free to choose for the initial 3 months, after that she was subject to a list of conditions, bearing in my mind her health and safety. 

As De Tocqueville wrote many years ago, the US Constitution is about individual rights.  The state constitutions are about collective rights.  A state can issue laws for the greater good of its society, but when these laws contradict an individual's rights, then the US Constitution takes precedent.  This is why you can challenge any state law all the way to the Supreme Court, as was the case with the draconian Mississippi abortion law that led to this horrible decision.  Apparently, the conservative justices feel a fetus' potential life has greater value than does that of the mother.  Something I don't think the Founding Fathers would have necessarily agreed with.  In fact, it is doubtful they even gave it much thought. Those that did, like Ben Franklin, actually gave instructions on how to perform an abortion at home.  

But, we are supposed to ignore such precedents.  It is only Judge Alito's narrow view that we should concern ourselves with after he went to all the trouble to dig up such obscure references as that of Matthew Hale, not surprisingly a 17th century witch hunter.  It shows that Alito doesn't give a rat's ass about the Constitution.  Like many religious conservatives, he wants to take America back to the colonial days, when churches and charters were the "law of the land."

This decision is very telling in this regard, as it clearly shows that five of our Supreme Court justices aren't Constitutionalists at all, but rather dubious lawyers driven by a religious conservative agenda.  Something the Founding Fathers would have been appalled by.  The whole point of the Constitution was to get us beyond the early colonial days when we were ruled by separate charters and religious laws.  It was a document written in the spirit of the Enlightenment, even if it held onto aspects of British Common Law.  It was far from a perfect document, as it still upheld slavery, limited women's property rights and didn't allow her to vote, but compared to what we had before it was a major improvement.  These appalling justices literally want to take us back to the dark age of our colonial past.

Of course, they wouldn't be there had not Republicans put them there.  However, the irony is that six of the judges that ruled in favor of Roe's right to have an abortion in 1973 were also appointed by Republican presidents.  The question becomes what happened to the Republican party?

Basically, it got hijacked by the Religious Right, many of whom had identified themselves as Democrat before the rise of Reagan in the 1980s.  These so-called "Dixiecrats," mostly coming from the South, have taken over the GOP and turned it into a party of guns and religion that bears only a passing resemblance to the Republican Party of the 1970s.  It is a political party that has drifted so far to the right that it bears no resemblance whatsoever to the Radical Republicans, whose precedent Alito cites by referencing the 14th amendment.  These were the Republicans who passed three amendments to grant Blacks freedom and suffrage, as well as prohibit states from passing laws that "abridge the privileges or immunities of citizens of the United States."  

Last I saw, women were US citizens.  Fetuses are not counted on the US census. But, maybe Alito can push Republicans in Congress to grant fetuses citizenship so that their privileges and immunities will be similarly protected by the Constitution.  The absurdity of it all makes for a black comedy but here we are living in a Handmaid's Tale where most white women are all too willing accomplices, namely Amy Coney Barrett.  

White women vote in the majority for Republicans.  They have done so for decades.  Judge Barrett is not the exception but rather the rule of white women voters.  They are literally willing handmaids, and so Barrett aligns herself with the conservative men on the court.  Judge Elena Kagan is the exception.  It's the Hispanic and Black women who vote overwhelmingly Democrat, represented by Judge Sonia Sotomayor and soon Judge Ketanji Brown Jackson.   This is why this decision may not have the big impact many think it will have in the midterm elections.  As long as white women keep voting Republican the woman's vote is diluted.  They cannot make their stand against this decision.  Even if they were able to, it would be years, if not decades, before a Democratic president would be able to overturn the Supreme Court with nominees more favorable to individual rights.

These "lifers" are there for the long haul.  The only hope is that Alito and Thomas kick the bucket when a Democrat is in the White House and a Democratic majority holds the Senate.  Hard to believe, we almost had that opportunity in January 2016 when Antonin Scalia kicked the bucket, but a Republican majority in the Senate refused to consider President Obama's nomination for a replacement.  Instead, Scalia's seat sat vacant for more than a year until Trump came to office and put forward Neil Gorsuch as the conservative judge's replacement.   One alternative is to add four seats to the Supreme Court, but without the full support of the Democrats in the Senate that is not possible.  Sad to say, we now have to wait until these two hacks breathe their last breath, if they aren't replaced before hand, as was the case with Judge Kennedy in 2018.

It's easy to understand the pessimism that surrounds this terrible decision.  There is no recourse.  We're stuck with this decision for years to come.  If anything, things will get worse.  States will pass even harsher anti-abortion laws.  Those states that have more favorable abortion laws will no doubt find them challenged, as we recently saw with the New York hand gun law that the Supreme Court revoked, ironically citing individual rights to bear arms.  A gun literally has more individual rights than a woman in this country.  The only silver lining is that maybe Democrats will get off their apathetic asses in the midterm elections and vote some of these horrendous Republican governors out of office.  We have to reclaim America one state at a time.  We can no longer cede large swathes to the Republicans, as has been the case in recent elections.  Only then can we hope to rebuild this country on the basis of the Constitution.  One that truly ensures individual rights and strives to make this a more perfect Union.