“That which is a sin within a certain set of religious beliefs is to be made a crime for all.” — Author Margaret Atwood on the U.S. Supreme Court’s draft decision rescinding the right to abortion.
Never interrupt an enemy when he’s making a mistake, Napoleon Bonaparte advised.
Pining to abolish the Electoral College? Safeguard the right to vote? End the Senate filibuster? Term limit U.S. Supreme Court justices? Then let this Supreme Court indulge in capricious over-reach: Rescind the right to abortion.
Ultimately, nothing is more likely to serve the cause of bringing majority rule to American governance than criminalizing this particular constitutional right.
Polls consistently indicate that only 28% of Americans favor banning abortion. So why is it being re-litigated? Because “Hate abortion? Don’t have one!” isn’t good enough for anti-abortionists.
Abortion was sharpened into a divisive political tool during the Reagan administration. “Business” Republicans short on voters recruited evangelicals by promising to outlaw it.
But we’re sovereign citizens of a republic that’s constitutionally prohibited from establishing a state religion. So we tend to get tetchy whenever government espouses religious dogma to justify revocation of our constitutional rights.
We are not a theocracy. Remember?
Majority rule subverted
Criminalizing abortion promises to concentrate wandering minds on an under-appreciated threat to American democracy: majority rule has been subverted and minority rule entrenched.
Three new conservative justices who signed the recently leaked draft opinion stating that there’s no constitutional right to abortion were nominated by President Donald Trump. He lost the popular vote by nearly 3 million votes. Nonetheless, Trump’s judges gave anti-abortion conservatives control of the court.
Compounding this Electoral College-dictated insult to representative self-rule, these justices were confirmed by senators representing a minority of the nation’s population.
To wit: Wyoming has just over half a million residents, California just under 40 million. Yet each state gets the same two senatorial votes. In effect, roughly 39 million Californians count for nothing in the U.S. Senate — as do seven million of us Washingtonians.
No, our population-based House of Representatives — which doesn’t confirm judges — cannot cure this unintended, unforeseen disenfranchisement of millions of Americans. It’s now stretching representative democracy to its breaking point.
Meanwhile, Senate Republicans abandoned the judicial nominating process that’s preserved a sense of fair play. A Supreme Court vacancy, his to fill, occurred during President Obama’s last year in office. But Obama’s nominee, Merrick Garland, was blocked by Republican Senate Majority Leader Mitch McConnell. His cockamamie claim? It would be unfair to seat Garland because it was too close to the election — which was months away.
Then, eight days before Trump’s term ended, McConnell shamelessly rammed through Trump’s nominee, Amy Coney Barrett.
Under oath during their confirmation hearings, Barrett, Neil M. Gorsuch and Brett M. Kavanaugh misled us. They testified that Roe v. Wade, which legalized abortion 49 years ago, is “settled” law, soothingly implying that they would honor it.
Pall over the court
The dissembling subterfuge by these nominees casts a pall of suspicion over the integrity of the court. When public trust in the Supreme Court crumbles, so does its moral authority. That’s not a loss any free nation can survive.
Abortion foe Justice Samuel A. Alito, Jr. authored the draft claiming abortion isn’t a constitutional right after all. That’s because abortion is neither a “deeply rooted” historic tradition, he argues, nor mentioned in the Constitution.
Neither were women, Harvard historian Jill Lapore retorts. The Constitution neglected to recognize the right to vote by women, Blacks and un-propertied white males. “To use a history of discrimination to deny people their constitutional rights is a perversion of logic and a betrayal of justice,” says Lapore. She charitably calls Alito’s lightweight, blinkered legal reasoning “impoverished.”
I call it three bricks shy of a load.
Not because I like abortion. Who does, for pity sakes?
My own view of the heartbreaking moral dilemma inherent in abortion is informed by having been trifled with in utero in 1938 when my unwed mother underwent an illegal, botched abortion to prevent my birth.
Alito is one of the court’s “originalists.” They strike me as people who’ve given up on the Constitution. They behave as if it were all but stillborn instead of a living document.
It’s just too hard, apparently, for originalists to decipher what the two centuries-old Constitution means in today’s more informed, humane circumstances. They prefer a constricted reading of rights enumerated in a document that withheld human rights from most Americans.
Yet, miraculously, the court can stretch far enough to find fanciful reasons to bestow constitutional rights of human personhood on corporations (see Citizens United). What originalists cannot do is recognize a woman’s inherent sovereignty over her own body.
Would government-compelled male/female sterilization to prohibit parenthood clear up their myopia, one wonders? Hello?
Predictably, Alito proposes to offload abortion on the states. But we pay these justices a lifetime salary to settle national difficulties, not create them. Letting states decide which Americans can freely abort and which will be tried for murder guarantees unequal application of justice and endless strife. This will of course become “sensible” justification for the next step: a unified, national ban on abortion.
Given this court’s injudicious appetite for removing a constitutional right from women, it’s prudent to ask: Who’s next?
After all, there’s a long list of untraditional things not explicitly mentioned in the Constitution — but enshrined in modern law — that aggrieves religious authoritarians.
Solveig Torvik lives near Winthrop.