On December 1st, the Supreme Court heard arguments in the tipping point case, Dobbs v Jackson Women’s Health, that will either severely curtail the right to abortion or decisively overturn Roe. This moment is brought to you by the religious right wing that has worked for nearly 50 years to get the point where they can finally kill off Roe v Wade despite a well established 50 year precedence of reliance on it by American women.
Roe v Wade established a fundamental right of self-determination for women that finally helped women in America gain parity with men when it came to having a career, a stable life and the opportunity to achieve a solid economic base. 77% of Americans want to keep abortion legal while only 13% want Roe overturned.
I listened to the Supreme Court arguments which were broadcast in real time. Each justice made his or her position apparent in their comments. It was all too clear from their comments that Barrett, Kavanaugh, Gorsuch, Thomas, and Alito want to overturn Roe v Wade. Those five justices were just hunting for the best rationale for overturning that case and blowing up the right to an abortion. Roberts was trying to argue that the Court should take a compromise position that would continue to restrict abortion rights but not overturn Roe. And the three “liberal” justices who support the continuation of Roe: Kagan, Breyer and Sotomayer, are simply outnumbered even though they represent the viewpoint of an overwhelming majority of Americans.
Game. Set. Match.
Of course the decision that is coming will be political. Of course these right wing anti-choice justices, vetted and chosen by the Federalist Society, are political hacks who were put on the Supreme Court expressly to overturn Roe v Wade. Trump said as much.
The Facts of the Dobbs Case
[A ]Mississippi law …makes most abortions illegal after 15 weeks of pregnancy, about two months earlier than Roe and later decisions allow. Most experts estimate fetal viability to be about 24 weeks.
The law was enacted in 2018 by the Republican-dominated Mississippi Legislature but never went into effect because of an immediate legal challenge that led to a federal appellate court blocking its enforcement.
The law bans abortions if “the probable gestational age of the unborn human” is determined to be more than 15 weeks, with narrow exceptions for medical emergencies or “a severe fetal abnormality.”
The state says that the fetus has made important physiological developments by 15 weeks, and that abortions are riskier to the mother at this stage of pregnancy. (By-the-way, that’s bullshit! The health of the mother is more endangered at the time of delivery. Having an abortion is far safer.) The Jackson Women’s Health Organization, which as the sole abortion clinic in Mississippi is at the center of the case, gave evidence to a federal appeals court showing that fetal viability is impossible at 15 weeks.
A federal appeals court said the state had not shown any medical evidence proving otherwise, affirming a lower-court ruling blocking the law and essentially saying that abortion is a right until a fetus is considered viable. If the law passed in 2018 were in practice, abortion providers who violate it could have their medical license suspended or revoked.
The Real Question
Justice Sotomayor asked this telling question: “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” This what she really meant: Will the Supreme Court, an institution that has prided itself on being above politics, survive the stench of being exposed as just another bunch of political hacks?
The answer is a resounding NO!
It was the response Amy Coney Barrett teed up at an event she spoke at recently where she claimed the Supreme Court “is not comprised of a bunch of partisan hacks”.
Oh yes YOU are.
Garbage Arguments By the Right Wing
The idea that a fetus has rights has been incubating for years. It was propelled and amplified by sonogram images that have become ever clearer over time as imaging technology has advanced. What starts out as protoplasm takes shape, acquires a heart beat, develops legs and arms, hiccups, sucks its thumb on camera and responds to loud noises in utero. Is this thing in there protoplasm or an unborn child? And when? At what point is this thing an entity with rights? When is it magically an unborn child? People differ on the answer to that question. It depends on their faith, ideology, philosophy and religious beliefs. Decisions about abortion are intensely personal and ought to belong to a woman in consultation with her doctor and her own conscience.
Roe settled the thorny abortion question for America for 50 years by relying on viability as the demarcation line for fetal protection: the point in time when the fetus can survive outside the womb. That was when the government could get involved.
But if Roe is killed off, then there is no line anymore. And if abortion is not a fundamental right then there is no national protection for it which means the states get to make up their own rules. New draconian rules will be written by the rabid religious right in states with Republican-led legislatures. The philosophical stance of many on the religious right is that the state can and should get involved in policing a woman’s uterus the moment of conception, and possibly even sooner. Some radicals on the religious right in Republican led states will insist on policing and forbidding contraceptives based on their religious/philosophical ideology.
Women! Listen up! Watch out! From now on it will really really matter which state you live in whether that state will police your private parts! Do not live in a red state if you want the right to bodily integrity when it comes to your reproductive freedom to make decisions for yourself.
Why Is it Fair That the Religious Right Impose It’s Philosophy On Everyone Else?
The right to abortion has been colliding with the so called right to life of the protoplasm in utero earlier and earlier. These shifts in philosophy are dismissing the needs and wants of the woman. She is relegated to the role of a backpack, a womb, a protoplasm carrier. By this thinking the needs of an unborn entity are to be elevated over those of its female pack horse. The rabid religious right is dictating what should or shouldn’t be done based on their own philosophical ideology which is not shared by everyone or based on a shared belief system. Much is based on assumptions.
It’s assumed by the religious right that the fetus would always and inevitably choose to be born, for example. But no one has interviewed an unborn fetus and asked it an important question: “Hey there, would you like to be born to a woman who will hate and resent you because she had to give up her dreams, her education and her chance to have economic security because she was forced by the state to give birth to you?” No one asked the fetus “Would you want to be born to someone who will dump you off at a Safe Haven so you can have a life that is emotionally damaged and financially insecure from the very start of your existence?” (Amy Coney Barrett claimed “forced motherhood” was not an issue because women could just drop their unwanted kids off at a Safe Haven: “Why don’t safe haven laws take care of that problem?” she said.) And how about asking the fetus of a woman who was raped and forced to carry to term, “Would you want to be born to the victim of rape who is reminded of that horrific violation every time she sees you- the product of that violation?”
Why does the religious right think it knows what the fetus wants?
For that matter, why does the religious right assume the will of the mother is irrelevant? How is it that the state gets to force a girl or woman to carry to term and give birth against her will? How is it fair that the religious right gets to impose its philosophy on everyone no matter what other people’s beliefs are? What if the mother is Jewish, or an atheist or a Buddhist or some other faith that doesn’t believe this protoplasm is a child at all until the moment it is born? Why isn’t a decision about fetal personhood beginning at conception or 15 weeks or some other arbitrary time going to be a direct violation of religious beliefs of millions of women who do not believe a fetus is a child until it is actually birthed? Seriously! Why isn’t a decision to do away with the right to abortion a violation of the Establishment Clause?
There were a whole lot of bogus arguments made by the religious right justices on Monday to justify their coming decision. Clarence Thomas asked counsel for the government arguing in favor of Roe, where in the Constitution does it say that women have a right to abortions? Counsel replied that there are many rights not specifically named by the founders in the Constitution that are under the umbrella of the right to liberty and self-determination; abortion is one of them.
Bodily integrity is something you hear the right wing yell bloody murder about every single day. “You can’t force me to get a vaccine!” they scream, even if it saves the lives of others in the community. My body My choice! But when it comes to forcing women to carry a pregnancy to term for 9 months, even if that could risk her life, is against her deeply felt religious ideas about fetal personhood, is the result of rape or incest or violence against her will, it’s just fine for a state to force her to carry to term. How does that make any sense? If she was raped why isn’t the state an accomplice after the fact in that violence to her person if the state forces her to carry the products of that violence to term?
The Only Good News
Dobbs has been described by some commentators as the dog that caught the car. The religious right might be sorry once they abolish Roe, because the aftermath is going to be very very ugly for them. Republicans have used abortion as a political motivator to get out Evangelical voters. Once Roe is overturned that motivator is gone. More to the point, women in America are not going to lose this fundamental right to their bodily integrity without being enraged and enraged people vote. The Dems need to securely tie Dobbs to Republicans everywhere to get out the vote for Democrats across the country. Dobbs should become their albatross.
Once Dobbs is decided (we will get that decision this summer), the only way to regain a national right to an abortion will depend on the composition of Congress. If the Dems control the House and can muster a super majority in the Senate (not likely given our electoral system), or get rid of the filibuster, they will be able to pass national legislation (that legislation is already written, by the way) which will create a federal right to abortion. Red state legislatures could be overturned across the country if women will rise up and vote. Dobbs just might become the motivator for voters to rise up to do that in places like Texas, Virginia and other states with Republican controlled state houses.
In short, Dobbs could turn out to be the rock that sinks GOP chances for control of the House and Senate and maybe even state legislatures. Religious right Republicans might be sorry they finally caught this car they’ve been chasing for 50 years.
