The New Criminals
167.23 million humans woke up May 4. They are America’s newest criminals.
Consider these numbers:
2020 US Population by gender: 167.23 million women. (1)
The late Supreme Court Justice Ruth Bader Ginsburg reflected during her Senate confirmation hearing (2) that Casey (1992) spoke to an unresolved issue: was Casey’s argument on women’s right to privacy, “women’s control over their bodies,” the most trenchant argument in this case? Rich with recent jurisdictional precedent, the ‘right to privacy’ now rings as perhaps too narrow an argument.
“It is essential to woman’s equality with man that she be the decisionmaker, that her choice be controlling,.. If you impose restraints that impede her choice, you are disadvantaging her because of her sex…The decision whether or not to bear a child is central to a woman’s life, to her well-being and dignity. It is a decision she must make for herself. When Government controls that decision for her, she is being treated as less than a fully adult human responsible for her own choices.”
In other words, a woman is disadvantaged specifically, because she, and only she can become pregnant.
What happened?
Band-aid Justice
Roe v Wade (1973) faced a withering of legitimacy with the question, brought as challenges, of at what point during a pregnancy is a fetus, “viable,” eg. capable of being described as living, alive, human? For the layperson this was the gist of Casey, and in a discussion of how we define abortion in light of the freedom to have one, the Supreme Court in a 5–4 decision, replaced and upheld ’24 weeks’ as decided by Roe v. Wade, with the ‘plurality opinion’ that blocking access to abortion placed an ‘undue burden’ on women who for a multitude of reasons required stopping an unwanted pregnancy:
In the 1992 case of Planned Parenthood v. Casey, The authors of the plurality opinion abandoned Roe’s strict trimester framework but maintained its central holding that women have a right to choose to have an abortion before viability. Roe had held that statutes regulating abortion must be subject to “strict scrutiny” — the traditional Supreme Court test for impositions upon fundamental Constitutional rights. Casey instead adopted the lower, undue burden standard for evaluating state abortion restrictions, but re-emphasized the right to abortion as grounded in the general sense of liberty and privacy protected under the constitution: “Constitutional protection of the woman’s decision to terminate her pregnancy derives from the Due Process Clause of the Fourteenth Amendment. It declares that no State shall “deprive any person of life, liberty, or property, without due process of law.” The controlling word in the cases before us is ‘liberty’.”(4)
Public Scorn
Ginsburg reflected that core to this deliberation was equality, equal protection, not de facto privacy, which is not mentioned in the Constitution. Redress, or protection when rights are abused or taken away, however, is. (4)
“Abortion prohibition by the State, however, controls women and denies them full autonomy and full equality with men.” (5)
Further, RBG may have realized post facto that casting abortion rights as a privacy issue though a familiar comfort zone for identity politics, exposed Democrats to a false confidence that a majority of America would follow. Unfortunately, so did Republicans, who effectively scorned the popular opinion for packing the judiciary with 3 justices — Gorsuch, Kavanaugh and Coney Barrett — who were committed to overturning Roe. This dynamic remains in place today and for some time to come: though a majority of America supports the protections of Roe, a simple 5 vote majority is all that is required to defeat Roe.
In sum, Ginsburg’s comments focused on the consequences of a decision rather than the arguments behind a decision. Objectively speaking, the privacy claim was “too little, too late.”
Rewriting history
As reported by Jill Lepore, (6) the Alito memo attempts to rewrite US Constitutional history:
“Alito, shocked — shocked — to discover so little in the law books of the eighteen-sixties guaranteeing a right to abortion, has missed the point: hardly anything in the law books of the eighteen-sixties guaranteed women anything. Because, usually, they still weren’t persons. Nor, for that matter, were fetuses…
“I don’t happen to think Roe was well argued. I agree with Ruth Bader Ginsburg’s early analysis — that grounding the right in equality rather than privacy might have been a sounder approach. I’m not even a hard-liner on the question of abortion; I find it morally thorny. But, when Samuel Alito says that people who believe abortion is a constitutional right ‘have no persuasive answer to this historical evidence,’ he displays nothing so much as the limits of his own evidence.”
Plausible Nonsense
Predictably, one of the Republican talking points is that the Alito directive/memo/leak expands women’s rights by implausibly giving them fuller control over their bodies. Follow this line of reasoning and one discovers the Republican defense is not a defense at all but a raw assertion of control.
And then the righteous outrage by Republican legislators at the blatancy of the leak. This is the ‘quieter coup,’ ‘what we have all been working towards.’
Chaos as policy
For a look at how states so far are managing unwanted pregnancies consider state regulations of after sex contraceptive medication. (7) Calling these a ‘patchwork of regulations’ is like calling the border wall a landscape beautification project.
It gets better: Will it be a criminal offense to purchase and distribute Plan B pills? Other forms of contraception? Will the Supreme Court provide pregnant women with a “carve out” for miscarriages? Who will decide? Who will train to attend to women’s pregnancy care?
The New Criminals
“Society has the criminals it deserves.” -Emma Goldman.
The mainstream media was surprised on May 4 by the spontaneity of the street protests in multiple cities across America venting disappointment and anger over the substance of Alito’s memo, now for all the public to see. That’s about the depth of recording a seminal dark day in America’s highest judicial institution.
I am a grandfather of three girls, ages 4, 9 and 12. May 4 they woke up in America. They are criminals. They lost the future of growing up in a society that rewards them for acting human, for being human.
Well, half of society.
May 6–8
Notes
1-US population, 2020, US Census.
Consider the leaked memo as revealing that a majority in the US Supreme Court would have the US join a minority, really a handful, of countries on the planet that do not provide universal access to abortion. Ireland, a Catholic majority nation (78.3%) recently legalized abortion (2018). The US Supreme Court, a Catholic majority institution (66%) is heading in the opposite direction. So it’s not really about religion or belief or culture but about a political takeover.
2-Ruth Bader Ginsburg, the second woman appointed to the US Supreme Court, was confirmed by the US Senate in a 96–3 vote on August 3, 1993.
Ginsburg was also a pioneer in another sense: no woman before her had presented more cases in federal court based on redress of women’s rights, She was a pioneer in litigating cases of sex discrimination and constitutionality.
4-The fourteenth amendment to the Constitution (1868) addresses specifically ‘equal protection under the law.’
5-“Ruth Bader Ginsburg Wishes this case had legalized abortion instead of Roe v. Wade,” Olivia B. Waxman, Time, August 2, 2018
6-”Of course the Constitution has nothing to say about abortion,” New Yorker, May 4, 1992
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