Good morning,
MY HAIR IS ON FIRE
I can’t help it. I know that I said I would use Monday Music to talk about specific straightforward policy recommendations, but there is so much to discuss after the Supreme Court rulings that were issued last week.
I also had hoped to comment on all that I have gleaned from attending the Aspen Ideas Festival on Health this week (which I will do in the coming days). Today I’d like to focus on the Dobbs case that tossed Roe v. Wade into the dustbin. The Supreme Court has provided a lesson in sophistry that allows it to ignore not only the existing precedent, the history of abortion rights, and the Constitutional history and intent of the Founders that can only support the notion that this right, among others, exists unless specifically proscribed by the Constitution. The Dobbs opinion was a ruling in search for a legal justification. It came after decades of effort in service of a political and religious ideology that has reshaped the judiciary to include people who have views with which a majority of Americans disagree. Apologies for the length of this Musing and its lack of polish…it is stream of conscience.
THE GREAT BIDEN DEBACLE
Let’s start at the beginning. Things might well have turned out differently had President Biden, rather than speaking about the need to work with the intransigent Mitch McConnell, instead came out early announcing two goals with democracy and fairness at their core. To the insincere protestations of the right, he and his surrogates should have then stated often that those who would object are motivated solely by power and the subversion of democracy. The Democrats instead continue to play defense in a game they have proven unsuccessful at playing the game of Mr. McConnell, bringing knives, as the Sean Connery character notes in The Untouchables, to a gunfight:
Statehood for Washington, D.C. There is no justification for the disenfranchisement of the people of Washington, D.C. True that the Constitution establishes a federal district but when it did so, essentially no one lived around the offices of the government. Times have changed and a state could be carved out. It’s not insurmountable. If the Republicans in Congress started citing “Founders’ intent,” on this issue they’d clearly be wrong. All that President Biden and the Democrats would have to do is remind people repeatedly that the 750,000 citizens of the sprawling metropolis, mostly people of color, are disenfranchised by virtue of lack of statehood. To screams that “it’s in the Constitution,” proponents of statehood should remind those who object that only the maximum size of the district is is prescribed—not the minimum. The federal district would be the White House, Congress and the instrumentalities of government in-between. Meanwhile, the citizens would have representation in the Senate. Poppycock on the Republican claim that it disrupts some fictitious political “balance.” The argument against this is two-fold: 1. The allocation of Senators already disrupts logic by weighting Senators by state and not by population, giving Republicans in rural states unfair advantage. 2. Any opposition to the enfranchisement of these Black Americans should be met with calling it what it is—racism—the desire not to enfranchise these people because it might give those people voice—a voice that might affect the Republican party’s clutch on minority governance. Call them racists because to disagree has little logic. Political power and racism.
Expand the Court by two justices. It requires only a majority vote of the two houses of Congress (with a waiver of the filibuster) and the signature of the president. No super-majority. McConnell stole a seat on the court when he failed to hold confirmation hearings for Merrick Garland, President Obama’s nominee. Resolve this injustice by “unpacking” or “repacking” the court after McConnell packed it himself by adding two justices. A great harm on our democracy happened when the Senate refused to perform its constitutional duty of advice and consent regarding President Obama’s nominee eight months prior to the end of his term, when Mitch McConnell argued that we should wait until the result of the impending presidential election was known (which, of course, melted away when it came time to rush through President Trump’s nominee mere weeks before the 2020 election).
WHERE ARE WE?
We are in a weird new world where a specific minority ideology is being foisted on the American people by a doctrinaire court that was packed by Messrs. Trump and McConnell. Had Merrick Garland’s nomination been heard by the Senate and had he been approved, the decision announced last week might well have been different. In a 5-4 court, there might have been compromise and nuance. Chief Justice Roberts’s concurrence shows what the decision would have looked like in this alternative world. The Court would have upheld the Mississippi restrictions on the narrow grounds of that case, without gutting Roe. We have Mitch McConnell and the thoroughly whipped Republican caucus in the Senate to thank for this. But also the ego of Ruth Bader Ginsberg in not stepping down from her position when she could have ensured a Democratic president’s nomination of her replacement.
Several random thoughts on the decision. This is not a treatise on each of these issues, but a shorthand of tortured history and disingenuous interpretation of our Constitution and the chaos into which the Court has thrown our country (beyond all the chaos that existed before).
FIGURING OUT THE FOUNDERS
1. The Roe decision was not the creation of a right. Notwithstanding Justice Alito’s attempt to educate us all on its history, the opinion creates a false narrative filled with untruths about attitudes toward abortion at the time (I’ll discuss this in a later Musing). The founders did not limit abortion rights because they didn’t need to. These procedures were private in those days—known to all and without need to be highlighted in the Constitution. There is no mention of abortion in the Madison notes on the Constitution (not surprisingly).
2. The Framers were libertarian at heart, believing in the maximum individual freedom and avoidance of the tyranny of the national government. Many were Deists. Many were signatories to the Declaration of Independence, which proclaims in its preamble the desire to ensure the blessings of “life, liberty, and the pursuit of happiness.” I daresay they would be stunned with this ruling.
3. The Framers were careful to limit the ability of the national government to interfere with the rights of the people. This most clearly is ascertained in the Ninth Amendment, contained in the Bill of Rights: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” These words are pretty unambiguous—unless specifically prohibited by the Constitution, rights are intended to belong to the people.
MAKING LAW
1. The majority opinion chastises the Roe court, suggesting that it should not have engaged in making law, which is reserved to the legislature, the people’s elected representatives. One can argue persuasively that Roe “found” a right where it wasn’t enumerated (although, again, I’d argue it existed by operation of the Founders’ intent and the words of the Constitution), where perhaps other legal theories might have avoided this controversy. But regardless of how one comes out on that issue, the making of law is precisely what the Dobbs case is doing. By determining that there is not a right in the Constitution—willing by force of religious conviction that the Constitution never intended to allow the people sovereignty over their own bodies and religious beliefs—they are taking a right from the people and turning it to many states that the Court knows will eradicate that right. They are legislating something different from what the Founders intended (see above), what the country has lived with for the past half century, and what a super-majority of the people believe.
2. It is disingenuous to suggest that, because this is a legislative issue and that, if the people disagree, they can simply elect legislators who want to change the law. They know full well, as do the rest of us, that the Senate (with its allocation of Senators by State and not population) and the post-Constitutional filibuster (intended to protect the slave states) render impossible a Democratic majority to pass a law on this matter or, as we have seen in recent years, practically any matter. Gerrymandering makes gaining control of the House similarly problematic. We live in the era of minority government—where can the clear majority opinion find an ally? Further, they must understand the practical reality that there will unlikely ever be sufficient votes in Congress to amend the Constitution (much less garner the ¾ of the States required to ratify). The Court essentially has said, “the people can decide—that is, of course, if they can achieve the impossible in face of long odds.”
3. This court didn’t care about stare decisis. Oh, sure, they promised otherwise, to varying degrees, in the modern-day farce of confirmation hearings and to the dismay of the gullible Senator Susan Collins. They lied (or at least misled). The majority, claiming to be against judicial activism, could have taken the less activist position of deciding on the facts of the Mississippi case only, as the Chief Justice tried for months to persuade his colleagues. Instead, they upended a half century of law. There is a hubris, an impatience, and a lack of humility that propelled the Court in its mission to limit access to abortion through specious reasoning and a misreading of history. And in that misreading of history, they fail to acknowledge the absence of female voices in that history.
4. The court focuses on the manifest mistake of the Roe Court. Many people supporting the Court’s decision argue that “Roe should have been argued on equal protection grounds,” rather than on a right of privacy. These people posit that, had that been the case, the Court might have affirmed Roe. Of course, we’ll never know (although we can guess!). It’s like saying we should send someone to prison because his lawyer didn’t argue differently. The Court is there to apply the law. If they wanted to find other justifications for the right to make personal decisions about childbearing, they could have. But in any event, the arguments in Roe were made fifty years ago! Stare decisis should stand for something. Here is a thought experiment: Imagine that this Court found that the basis upon which Brown v. Board of Education was decided was flawed. Would they overturn that case due to incorrect legal analysis and allow the states to legislate racial segregation? Or would they allow the law striking down segregation to stand?
5. The Court argued that their rulings are effectively in the vacuum of legal theory—that they are there not to validate public opinion. But that’s not really fair. While the Court is supposed to be the slowest moving of the instrumentalities of our government, least susceptible to popular opinion, this does not allow the Court to pay no heed to the practicalities of the world in which their rulings are issued. A bunch of jurists who maintain they are not activists acted in the most activist of ways.
GOING FORWARD
1. While the majority opinion makes clear the opinion relates only to abortion, Justice Thomas, in his concurring opinion, makes clear that gay marriage, single-sex relationships, and contraception are on the table. After all, they were in large measure the product of the same reasoning of a penumbral right of privacy. If that right of privacy doesn’t exist, what’s to stop, on this logic, the conclusion that it’s not in the Constitution? Is gay sex and marriage next? I’d argue that the Founders, as aware as they were of the existence of abortions, were similarly well aware that homosexuality existed. On the Thomas reading, I suppose they were required to enumerate that right in the Constitution.
2. The chaos that will ensue will grind through the courts and will affect many unfortunate victims who strive for relief. A few “for instances”: If someone goes across lines for an abortion and returns, might a state conclude that they violated state law in the state of their residence? If a pregnant woman travels to another state and has a complication during pregnancy, will the state she is visiting allow her to leave and commit a “murder” in another state? If in a complication of pregnancy a mother’s life is at risk, along with that of the fetus, who decides who lives? What doctor in a state that prohibits abortion will run the risk of being accused of murder by sacrificing the baby to save the mother? Maybe better just to allow the mother to die. What if you drive someone from a state prohibiting abortion to a state that permits it? Are you abetting a crime? In what state is the crime committed?
3. Now that society has an ownership interest in the reproductive rights of every woman, imagine how a state might choose to enforce that right. Imagine the enforcement issues and the intrusions into a woman’s personal life that that the application of a prohibition might entail. If a fetus dies (after all, many pregnancies end in miscarriage on), will states require an inquest? If a woman is suspected of holding an opinion that abortion should be her right, will we pore over her statements to others, her actions, and her postings on the internet? Will neighbors be able to relate casual conversations? We may find in many states that the intrusiveness of the government into a woman’s personal life will make the excesses of access to personal information by social media platforms seem like child’s play.
3. This is but the start. This court is poised to severely restrict federal agencies in their regulatory discretion to implement unclear or insufficiently explicit legislation. This will severely limit the ability of many governmental agencies to act—especially (and as targeted by the right) in the area of climate change. This is not the end of this court’s ripping apart how our government—and our society—have existed for years. They are on a mission to reconstruct government, governance and rights.
4. The right has suggested that the Dobbs case merely is the rectifying of a bad decision of a past court. They look to the reversals of Dred Scott and Plessy v. Fergusen as precedent. Yet what they don’t acknowledge is that overturning those cases expanded the rights of the people. This case goes the other direction.
5. Where does this leave medicinal abortions, which constitute 56% of abortions? Presumably, the use of the mails to deliver these drugs will be limited in many states. Will there now be a black market of drugs? Perhaps the interstate commerce clause will come to their rescue here. Perhaps not.
THE ROE WORLD, THE RECENT REGULATORY LIMITS AND THE POST-DOBBS WORLD
As stated earlier, the Court could have acted in a more limited manner in affirming or overturning the lower court’s decision, as is the case generally when the court considers a case—take minimal action and deal with the limited facts presented by the case. The Roe-world would have been preserved and the right to an abortion would continue to exist, albeit severely limited in some states. The status quo was a workable system that allowed for the right but allowed states to act as they saw fit, within reason (or beyond reason, as in the Texas and Mississippi examples). The unenumerated right would have continued vested in the people, limited as their elected representatives in the states saw fit. It was an imperfect system but it was much less intrusive than the post-Dobbs world that we now face. This workable system wasn’t enough for the zealots on the right. They wanted the whole enchilada.
Many acts may be criminalized by the states—such as counseling of patients and transporting women to more lenient states. Every fetal death will become a potential homicide. The practical effect of the pre-Roe world, as defined by this court, allowed Red States the ability to limit the right. But now the Court has created a complex system of states with competing laws and a federal government that likely will try to circumvent the ruling through federal law. But when a Republican government comes to power, it likely all will be reversed. Chaos.
WHAT NEXT (BESIDES NON-STOP LITIGATION)?
I believe the next step from the religious right is a case that purports to say that a fetus is a person entitled to Constitutional protection. Will there be five votes along those lines? There are at least four in the majority likely of that opinion already (Thomas, Alito, Barrett, and Gorsuch), with two more seemingly leaning the other way (Kavanaugh and Roberts). If Kavanaugh can be persuaded, abortion will be illegal as a matter of law across the country. It won’t matter if you’re from the “safe havens” of blue states like New York and California. And lest anyone wonder what the people have to say about this, one need only reach back to the State of Mississippi: A 2011 ballot initiative that would have defined a fertilized egg as a person was rejected by nearly 60% of Mississippi voters. But, as the Court has advised us, they are here not to follow society, but to educate and correct it.
Meanwhile, I believe this holding may constitute a violation of the establishment clause. While one can argue that the ruling is one steeped in a rational reading of the Constitution and what it doesn’t explicitly say, it is, in fact, a religious ruling. For the last 40+ years, evangelicals have worked toward this goal through the elevation of justices supporting their religious view of human life and when it begins, and the power of the state to enforce that view. While one religious perspective suggests a fetus is a person and abortion is murder, others suggest that a woman’s life is paramount and abortion is permitted. Why should one religion prevail over another? Stay tuned for that argument later this week.
BILL SONNENBERG SPEAKS
My father was a doctor in the Bronx. He was a Republican but with liberal social views and an open mind (something in short supply in today’s right). I remember him telling me when I was a child of all the botched abortions he saw as a physician. Women came in with irreparable harm to their uteruses. They came in with internal bleeding. Many were infected. Some died. He supported abortion rights out of basic humanity and a realization that we all control our own bodies and are not servants of the state. People who can get legal abortions in another state will do so. Those who cannot afford to travel will take matters into their own hands. Human nature won’t change simply because of the Dobbs case. Abortions will continue in states that prohibit it. The wealthy may go to other states to solve their problems. The poor will be relegated to second-class citizenship, being forced by an uncaring state to give birth to babies they didn’t want.
What a week. Broad gun rights, beyond any reasonable interpretation of the Second Amendment, federal money going to religious institutions, and now this.
Have a great week and try not to be too disheartened,
Glenn
From the archives:
Hi, Glenn! It’s Catherine Hand. As a staunch defender of a woman’s right to autonomy over her own body, it’s helpful to read such scholarly words on the subject. Thank you! My love to your family. 💕