Parsing the Firestorm
Terry H. Schwadron
June 27, 2022
We have three emergent, overlapping narratives from the Supreme Court’s summary rejection of any national abortion rights in the United States.
Each is a cause for public anger and a promise of permanent divide in the country and on cultures that will not compromise.
As a country that can’t settle even one issue successfully in anything resembling unity, having multiple problems just guarantees efforts to ignore the reality. As a friend noted, abortions aren’t going away, just safe abortions.
First, we already see the start of what a never-ending set of legal challenges as each state sets up rules and regulations governing abortions that inevitably will conflict with one another and likely with some other Constitutionally protected right, like the right to travel freely between states or to receive abortion medications through interstate mails.
There have been a ton of well-informed articles this weekend following up on the rocky legal and practical road ahead, including this one details the issues with trying to enforce any potential ban on pregnancy-stopping pills like the plan announced by Republican South Dakota Gov. Kristi Noem yesterday.
The issue has immediately exploded as a main campaign theme for November, with public protests organized as much about the Supreme Court’s apparent view of women as less than able to make decisions about their own bodies as about any concept of law.
Seeing the Court as Political
Second, there is the now widespread expectation that the Supreme Court’s right-leaning majority is aiming to throw out other rights based on the same reasoning as the rights to obtain contraceptives, pursue gay relationships and celebrate same-sex marriage, to say nothing of the right to inter-racial marriage.
Justice Clarence Thomas said it out loud in his concurring majority opinion, though fellow conservative Justice Samuel Alito tried to downplay reading this decision as more than about the perceived right to abortion. It is hard to find pundits and journalists who accept Alito’s words at face value.
The court takes on cases that are presented to it for review, and the nation’s legal minds know how to manipulate the writing of enough cases to force more definition even from a Supreme Court that would want to stand aside from settling culture war skirmishes.
There was absolutely no change in law here, only a change in those declaring what is law. For that matter, there is no venue for these justices to defend or answer to concerns that they simply turned away from the practical effects of their actions.
In any event, this decision underscores that this conservative majority thinks it can run the political table on a right-wing agenda,
The third simultaneous narrative concerns the court itself. The emergent story line across the political landscape is that for good or evil, the court has shown itself to be the utterly crass political entity that it has sought for decades to rise above.
Dozens of articles, including this one by seasoned court reporter Linda Greenhouse or columnist Dana Milbank, and newspaper editorials make clear that the court itself has lost its way, and that Chief Justice John G. Roberts Jr. has lost control of any attempts to keep focus on decisions consistent with precedent or incrementalism.
The abortion decision came about for the simple reason that the conservatives now have the votes to steamroll. Our perception of The Law is now whatever this voting bloc, the fruit of appointments by presidents who never won a popular majority, say it is.
Thus, we’re back into discussions about ignoring the court or replacing it or remaking its membership, as Sen. Elizabeth Warren angrily called for anew yesterday. Even Democrat Joe Biden has been clear that he does not support court packing, and we can anticipate that this debate is going nowhere. But it will be time-consuming and ugly.
Shaping the Rebellion
So, what happens when we don’t agree with as fundamental a decision as this one about abortion rights?
We will have rebellion — and the attendant debates over whether the protests are too strong or threatening against a public policy that on its face demeans women, ignores 70 percent of the nation, and caters to a religious-based fervor that itself is unclear about when “life” begins.
With luck and enough anger, maybe it all turns to votes for a more tolerant bunch in November. It ought to be the case that even people opposing abortion itself can recognize the need for a right for individuals to choose their medical path. That’s been the argument about covid health measures, why not pregnancy or contraception or picking one’s partner.
We will have endless debate over whom to prosecute, because some states already are indicating that if there is no right to abortion, abortion must be a crime. We will fight over the inevitable clash of how rights to freedom of religion conflict with this new dictate; Jews and Muslims, for example, expressly value efforts to save the lives of mothers in an emergency. We will fight over whether calling someone in the next state for help with abortion is conspiracy to commit a crime.
Conservatives are bringing political guns to a knife-fight; Democrats are asking for rationality.
For a bunch of well-heeled conservative-bound judges who clearly have been thinking about the chance to write this decision for decades, the final product reflected shoddy, inside-out thinking. The tone was sneering, Alito’s main claims were based on a faulty history of abortion feelings and practices, and the insistence that there was no mention of the word “abortion” in the Constitution — as there is no mention of the words privacy or freedom.
There was no effort to revisit the ruling even after the decision’s leak had prompted substantial outcry. There was absolutely no effort to persuade.
It was the job of the Supreme Court majority — even if it voted as a boorishly political bloc — to clarify the issues, not leave them more cloudy. So, let’s add bad judicial writing to the growing pile of hypocrisies that include nominees who misled senators, senators who allowed themselves to be misled, the Republican maneuvers in the Senate to eliminate consideration of a Supreme Court nomination by former President Barack Obama or the hurried move to put Amy Coney Barrett on the bench for life.
What we have inherited is a political mess fueled by emotion not rational debate.