When I learned of an early draft of Supreme Court Justice Samuel Alito’s opinion on the future of abortion as a constitutional right surfacing on Politico last week, I balked as a skeptical journalist out of concern for its being a fake. However, when I finally chanced a look at the first 20 or so pages, I quickly recognized Alito's personality in the writing – snarky, intolerant, pugnacious and, whatever else, remarkably straightforward.
In short,
genuine to the letter, something Chief Justice John Roberts confirmed the
following day, even as Roberts stressed that the written opinion was a draft,
certain to be tweaked and revised by concurring justices of which there is
almost certainly an easy majority. However the opinion is ultimately refined,
the outcome seems sure in this forceful, uncompromising text: The high court’s long-anticipated
reassessment of Roe v. Wade is about
to strip away federal protections that almost a half-century ago invalidated Texas
law criminalizing abortion and gleaned from the almighty Fourteenth Amendment a
right to privacy that insulates a woman’s choice of whether to pursue an
abortion.
Thereafter,
this right will be left to the states, which history proves have an abysmal
record of protecting the rights of certain citizens. And while 78 percent of Texas voters in a recent University
of Texas at Austin poll may well believe abortions should be allowed in some
form, don’t bet the house on that sentiment manifesting itself in the form of actual
votes. So far as Texas goes, a 2021 state “trigger” law starts a 30-day
countdown toward banning most abortions once the formal ruling from the Supreme
Court is issued, presumably consigning to the trash heap a bizarre
anti-abortion law encouraging nosy and judgmental Texans to sue for cash bounties
any neighbors, co-workers or family members they find helping facilitate
abortions, exempting those who
actually received the abortions.
Even
alongside controversial issues such as immigration, health care and gun rights,
abortion is unique. In an era that condemns compromise, abortion is the one
issue that absolutely demands cooler heads and societal and political
compromise and savvy leadership if the life of the unborn is sacred and the
rights of the mother are to be respected in ways that men in other matters demand
to be respected. Indeed, many men vigorously resisting masking mandates and
vaccinations during the pandemic have used the very same rhetoric that women
have in resisting government’s telling them what they could and could not do
regarding their own bodies.
Anti-abortion protesters once
regularly likened abortion to slavery, but that’s a colossally flawed argument
for their position – a former slave could indeed survive free, even though some
whites for generations openly doubted the abilities of African Americans in
individual subsistence; a former master could survive without a slave, certain
hardships notwithstanding – the sort that slave owner Thomas Jefferson, for all
his soaring words about liberty in the Declaration of Independence, was personally
unwilling to accept. The abortion issue, by contrast, has dealt with the
solitary instance when two lives are caught up in one physical body for the
better part of a year. So whose rights prevail? Is a legitimate and workable
balance of these human rights even possible in an age of extremes? Is it
relevant? Has it even been possible in recent decades with one side screaming
“baby killers” and invoking fuzzily interpreted biblical verses instead of
fuzzily interpreted constitutional passages? Has it even been possible with
pro-choice forces stridently accusing the other side of hiding their true
motives in the debatable term “pro-life” and actually pressing an oppressive
mix of Puritanism and fascism in trying to rob women of uniquely tailored
rights that arguably ought to be respected to the degree Second Amendment
rights are respected? Many Texas feminists note, and with some justification, that
“pro-life” forces are largely AWOL in fighting for life-saving measures that
might reverse Texas’ disgraceful reputation of having highest rate of uninsured
women of childbearing age, the highest rate of uninsured children and the highest
repeat teen-pregnancy rate.
“Back in 1974, my wife and I did murder our own child [through
abortion] and I suffer almost daily from that,” Waco attorney, Army veteran and
former McLennan County Republican Party chairman Jon Ker told the Texas House
Public Health Committee last year in favor of this state “trigger” bill while
chairing the Abolish Abortion Subcommittee of the State Republican Executive
Committee. “I do know the effects of what abortion can do, even from a father’s
perspective, and that is just something that needs to be – the reprehensible
thing of abortion needs to be abolished in our state and in our nation because
it hurts everybody. And I would like to say one other thing and then I’ll quit:
That life inside that mother is not
the mother’s life. When we say that it’s a choice or the mother’s health, we’re
[suggesting] that that life within that mother is not a separate life, and it is separate and that life under our
founding documents needs to be protected.”
During the 2021 legislative session, other
presumably equally sincere pro-life advocates lambasted the idea of the state
of Texas waiting for the Supreme Court of the United States to finally get
around to striking down the constitutionality of one’s right to an abortion. Some
argued Texas should ignore the highest court in the land, ban abortion statewide
to save unborn lives and secede from the United States if necessary. And more
and more, frustrated pro-life advocates citing holy scripture and touting
Christian values have abandoned the long-accepted view that young women seeking
abortions are themselves innocent and misguided victims. “I see [that] women
who have abortions are not seen as criminals, and I wonder why,” a Houston
woman told the Texas House Public Health Committee shortly before Ker testified.
“I know it’s partially because abortion is kind of an anesthetized term, but
what’s really happening is child sacrifice. These precious human lives are
being sacrificed to glorify women’s freedom of choice.” She cited Isaiah 1:17:
“Learn to do right; seek justice. Defend the oppressed.”
And all this aforementioned diversity of
opinion is just on the pro-life side. A Pew Research Center national survey
conducted in March and part of a Pew report released Saturday morning found
that while
Republicans and Democrats have long been on opposite ends of the issue, the 42
percentage-point partisan gap today is considerably larger than it was in the
recent past: “The change in attitudes has come almost entirely among Democrats:
Currently, 80 percent of Democrats and Democratic-leaning independents say
abortion should be legal in all or most cases, up from 72 percent in 2016 and
63 percent in 2007. Republicans’ views have shown far less change over time:
Currently, 38 percent of Republicans and GOP leaners say abortion should be
legal in all or most cases. In many ways, the partisan divisions over whether
abortion should generally be legal in the United States tell only part of the
story. While most Democrats say abortion should be legal in all or most cases,
sizable shares favor restrictions on abortion under certain circumstances. And
while most Republicans favor making abortion illegal in all or most cases,
majorities favor exceptions in cases of rape or when the life of the woman is
at risk.”
In short, many of us – me included – believe
abortion is a right that reaffirms the long-suppressed rights of women in
America and in history, even if that controversial right is tempered in the way
everything from the right of free and provocative speech to the right to bear
arms openly or not is tempered. Yet many of us who argue for this nuanced
position are clearly caught in the crossfire of those whose principles forbid
compromise, all too similar to what we see in long-raging debates over gun
rights in Texas and beyond.
The Texas Legislature has certainly tested the limits
of nuance and the law. While polls suggested Texans believed the comprehensive
anti-abortion legislation passed by the Legislature during the summer of 2013
was excessive in some respects – such as tying up abortion clinics in
regulations some say were clearly designed to shutter them – many actually
approved of that law’s basic tenet that abortions be forbidden after 20 weeks.
That meant a bracing realization for Democratic state senator and abortion
rights advocate Wendy Davis in her uphill (and unsuccessful) bid to employ that
issue in a 2014 gubernatorial campaign: She would have to broaden her platform
beyond women’s health even as she marshaled women outraged by the new state law
– a tricky balance, complicated by the fact many of us may stand up for certain
abortion rights in principle but are aloof from its potential relevance in the
lives of marginalized women. “There are enough women in this state that, if she
articulates her message right, they could mobilize around this issue,” Ashley
Blinkhorn, 25, a recent arrival from Florida astonished at the state of women’s
rights in Texas, told me during a rally at Waco’s Poppa Rollo’s pizza
restaurant, co-owned by Democratic activist and educator Mary Duty. Others at
this event also wanted Davis to champion women’s rights, up to and including
abortion rights. Carole Hanks told me that Davis needed to battle a political
system in Texas that supplants a woman’s right to make decisions about her own
health: “If a woman wants to carry a baby to term, that should be her decision
and no one else’s.” Meanwhile, a big-screen TV replayed, to everyone’s delight,
Texas Gov. Rick Perry’s wife Anita acknowledging that abortion could be a
“woman’s right” — a remark her husband later walked back.
Justice Alito gets this much right at the very outset of his 98-page
opinion: “Abortion presents a profound moral issue on which Americans hold
sharply conflicting views.” The basic thrust in his draft opinion insists that
not only is the right to a medical abortion mentioned nowhere in the U.S. Constitution
but the legal scaffolding supporting it and the rights to contraceptives, racially
mixed marriages and gay marriages – the fundamental and cherished right to
privacy – is also mentioned nowhere in the Constitution. He stresses that
abortion ranks as a special concern to the court in contrast to these other
hard-earned rights because of its threat to the lives of the unborn.
Yet given
the hobbling legitimacy of the Roberts court in survey after survey over embarrassments
up to and including the scandal of the leaked draft opinion; heated calls for
ethics reform for the high court after texts by the politically bonkers wife of
right-wing Justice Clarence Thomas surfaced proposing a virtual coup d'état (texts
followed by her husband’s failure to recuse himself from cases related to the
insurrection at the Capitol); and high court nominees who clearly will say
anything before Senate Judiciary Committee members to get plum lifetime
appointments, a question must arise about this court and its supposed integrity:
Who amidst all this can believe these politicized justices won't soon come
after other “rights"? Conservative gadfly Ben Shapiro and other emboldened
right-wing zealots have already signaled they're coming after gay marriage
next. Some Republican senators during stormy confirmation hearings for Supreme
Court nominee Ketanji Brown Jackson raised questions about past court decisions
justifying such rights as that allowing a person of one race to marry one of
another race (though one might well assume that on a court where the racially mixed marriage of Justice
Thomas and his wife Ginni are given proper deference, this conservative attack would hold very little
sympathy). And some Republicans in Texas and beyond are now discussing
legislation to prosecute women who dare travel across state lines to secure an
abortion or penalize those organizations that dare aid them – an idea that would seem to conflict
with the right to freely travel in the United States of America as well as the Thirteenth
Amendment against enslavement. The unrepentant tone in the Alito draft
practically invites all malcontents, theocrats and out-and-out fascists to launch further
combat in our divisive culture wars, condemning our nation to more vicious infighting
and resentment and misunderstanding as the global threats to American democracy and our very lives mount around us.
In his
February draft, Justice Alito repeatedly dismisses the reasoning of past
justices (nearly to the point of insulting them) in his insistence that the
right to an abortion is mentioned nowhere in the Constitution. He’s right, of
course, but there’s also no mention in the Constitution about, say, allotting
free speech rights to corporations in the form of unlimited and corrupting cash
to political entities, per the Citizens
United v. Federal Elections Commission ruling of 2010, which Alito
supported. And that court decision has enriched already wealthy elites and
widened our societal and political divide through corporate titans and noisy billionaires
eager to game the constitutional system for their own ends, even as they sometimes
play populist puppeteer to the masses.
And
regarding that right to privacy upon which some arguments for abortion rights
have relied: Given that some of us believe the high court has succumbed to
unceasing political pressure, Alito and concurring justices best be wary of the
capricious far right, increasingly alone in granting them legitimacy: Privacy
has been cited as a constitutionally relevant right by conservatives in
everything from filling out U.S. Census forms (a tea-party gripe in 2010) to
gun-ownership registries, which some fear will allow the government to readily confiscate
our home weaponry when it finally mutates into dictatorship. McLennan County
Sheriff Parnell McNamara specifically mentioned this latter scenario as a concern
when I interviewed him a couple of months ago. It was part of his broader
concern back in January 2013 when he surprised some constituents by insisting he would refuse
to enforce new federal laws restricting access to guns or ammunition, a
position many sheriffs took after a December 2012 mass shooting at a
Connecticut elementary school that left 20 children and six staff members dead.
The slaughter had prompted calls for new measures against gun violence.
Surprisingly, pro-life forces so dedicated to the lives of the unborn went mostly
mum in this debate over killing sprees that claimed the lives of innocent women
and children, confirming certain suspicions voiced by pro-choice forces all
along.
Alito makes
a strongly originalist argument for leaving abortion questions to the states,
including the very voters whom he has helped confound through court opinions over
the years undermining voting rights and perpetuating gerrymandering abuses. And
his rationale in the draft opinion that certain unspecified rights must have at
least some grounding in history fails to acknowledge that for the past
half-century abortion rights have been consistently accepted and even embraced
as a relevant if carefully regulated right by a majority of our fellow citizens
in survey after survey after survey. And the past half-century going back to
the Nixon era and the Vietnam War and women’s liberation and campus unrest and
civil rights surely counts as history critical to democracy. True, Alito says the
court has long determined rights by how “deeply rooted” they are in our
history. Yet this claim proves Alito’s blindness – and likely that of other
justices in the anticipated majority – to the rights of many Americans not as personally
fortunate as those high justices. Deeply rooted? Consider our deeply rooted
history of slavery and Jim Crow laws and Indian eradication and, yes, the
tardiness of citizens in granting the Nineteenth Amendment. Dred Scott, anyone?
Alito fails to realize that, to note it again, the American saga has always
been one of discussion and debate, up to the point of violence and disunion, over
who in our vast and increasingly diverse numbers rates full rights – and who
doesn’t.
Finally,
Alito pointedly notes how legal schemes of past justices not only fail to pass
constitutional muster but “have enflamed debate and deepened division” among
Americans. Right again, but one reason past court decisions haven’t gained traction
or acceptance is because those in Alito’s own political party have repeatedly
enflamed segments of society against these rulings, demonstrated in everything
from local boycotts of Girl Scout cookie drives to threats of outright secession.
Support for overturning Roe has
become a virtual litmus test in the Republican Party – and not only for GOP candidates
seeking executive and legislative positions but for supposedly unbiased federal
court nominees pressed by Republicans for lifetime appointments. (And, yes, the
same charge can be leveled at Democrats.)
If certain past
justices of the Supreme Court of the United States – many of them Republican –
are guilty of anything in Roe v. Wade
and the Planned Parenthood of Eastern
Pennsylvania v. Casey ruling tempering that right in 1992, it’s in trying
to establish a reasonable constitutional framework for a safe medical recourse
uniquely important to some women in an era of newfound liberation, even if this
right didn’t quite constitute an absolute
right. But then what right is absolute? What right should be absolute?
When all is
said and done by the current court in the days and weeks to come, many women and
those who love them and fight for their rights may well realize that the rights
of a pregnant woman reluctant for whatever reason to give birth and the rights
of an unborn child to one day walk free among us were pretty well balanced by
high courts of the past with some reasonable restrictions by states. At least,
they were before state legislators began pushing the limits of what was
reasonable and a handful of justices on this court, bowing to political
expectations inherent in their appointments and confirmations, upset the
equilibrium and risked enflaming passions and deepening our divide even more
than Justice Alito imagines or cares.
This is an expanded version of a column published in the Waco Tribune-Herald on May 8.
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