SCOTUS Doesn’t Care

 

The decisions released by the Supreme Court of the United States over the past few days have validated Mitch McConnell’s vision for a conservative court and caused much of America to clutch at its’ collective heart in dismay. In my lifetime, I do not remember such a momentous week for the court; the weeks that delivered the Brown education decision, the original Roe abortion decision, and Obergefell same-sex marriage decision were the bombshell decisions of their day. They occurred in isolation, not as with this week, with major changes against established policies all announced days apart. In each of these decisions, the Court, in my opinion, turned its back on American society at large and lost any claim to legitimacy, a sense of justice, or even-handedness.

Abortion has been a legal part of the American fabric of healthcare for almost 50 years. Several hundred thousand procedures, either medical or surgical, have legally been done annually throughout most of my lifetime. Polls show that most Americans (between 60-85% variably) support allowing a woman to choose her options and oppose forced pregnancies. Reports also note that one in four American women have had the procedure, at some point, during their reproductive lifetimes. So, obviously, the court is fixing an issue that does not require change and is enabling a small minority to effect their will on a greater majority. This decision, which steps around the rule of law, will cause significant turmoil in our country, but the court apparently wished to fulfill its’ right-wing agenda and does not care what society at large may think. Its’ arrogance and loosely underpinned decision may well be its’ undoing; by this ruling from its’ ivory tower, it has stepped away from the fairness we once expected.

Once the court, previously a respected institution, loses legitimacy, it will further distance itself from those it should serve and will become a tool of the rich and powerful, much as those who ruled in Alice in Wonderland with rulings being capricious:

You couldn’t have it if you did want it,” the Queen said. “The rule is jam tomorrow and jam yesterday, but never jam to-day.” “It must come sometimes to “jam to-day,” “Alice objected. “No, it can’t,” said the Queen.

The claims made in each instance this week denied what had long been considered established rights and in prior appeals, were sustained as precedent. They were:

1.    a decision that chipped away at the Miranda warning requirement,

2.    a denial of a New York state law that required permits for concealed weapons carry, and,

3.    a repeal of the Roe decision extending a question from a Mississippi case that only questioned gestational age and second-trimester issues, as I understand it,

4.    a decision that allowed a religious school to receive state money in a limited way, further eroding the separation between church and state..

Talk about judicial activism! So, according to right-wing rhetoric, this is not Okay if there are decisions on the more liberal ninth circuit, but is allowable on the conservative fifth circuit or the Supreme Court?

In a way, the leaked Justice Alito draft opinion of a few weeks ago prepared us all for the possibility of the Roe decision. However, it did not lessen the pain this decision has caused and is causing many women across this country. Because of the anti-choice movement’s efforts in many red states, abortion bans will now take effect in many states across the country within days of this decision. Many bans also prohibit any exceptions, such as in cases of rape, incest, or considerations for the health of the mother.

According to a chart from the Washington Post, as of today, abortion will be protected in 20 states and the District of Columbia. Trigger laws are in place in 13 states, with an additional seven states also considered likely to enact bans. Pundits consider ten states to be in an uncertain or unstable status, as they have laws limiting abortion, but if the state legislature/ governor changes to red in the mid-terms, these laws might be tightened or they may put bans in place. There is a wide swath through the South and Midwest where abortion services will be unavailable, making it imperative for women to travel across states for hundreds of miles to find legal options. Several states have attempted to restrict access to mail-order prescriptions that allow for medical abortions, while other states planned to punish people who will help women leave the state or provide funds for out-of-state travel.

There have been protests in the streets of cities each day across the country since the court announced this decision. Thousands have turned out proclaiming the right to make personal decisions about choice should not be diminished. The anti-abortion crowd has also been in the streets announcing their great joy at these actions that have overturned Roe, but the protesters vastly outnumbered them. Across the world, the Guardian reports, leaders condemned the actions of the court, from Trudeau in Canada to Arden in New Zealand, with Boris Johnson and Emmanuel Macron from the UK and France, all decried the move as a step backward or against the rights of women. These are only a few of the leaders who spoke out as the world expressed its horror at this action by the court.

The Director of the World Health Organization also spoke out:

Tedros Adhanom Ghebreyesus, head of the World Health Organization, said on Twitter that he was “concerned and disappointed” by the ruling and that it reduced both “women’s rights and access to health care”.

Former First Lady Michelle Obama released a letter on Twitter stating that she was heartbroken that many women would now no longer have the fundamental right to control their own bodies. She was heartbroken that many would return to the horrors of the days before Roe. But she urged all to turn their dismay into action and stay away from despair or pessimism. She repeated that a nation that does not understand its’ history is doomed to repeat its’ mistakes.

Several national corporations stated this week that they will provide some funds for employees in states without abortion choices to travel to other states where it is allowed. (How soon before the right-wing goes after this as a permitted corporate deduction?)

Why did the court overturn what we had considered settled law? Some consider that the decision was rendered because they had the critical mass of votes to make it happen. Some say that Chief Justice Roberts, who ruled with the majority in the 6-3 Mississippi decision, but with the minority in the 5-4 Roe decision, has lost control of his court and the faction led by Justices Thomas and Alito has taken charge. So, even though Roberts has tried, at times, to direct the court to take more measured decisions, he no longer has the votes to rule these issues. Justice Alito reasons that legal abortion is not written in the constitution, nor is it present historically as a value and was condemned centuries ago in England, so it should not be considered a right. He has immediately turned women into second-class citizens since they can no longer control how they address personal health care options. He claims that these options, since they take a life, are different.

What many do not understand is that this decision does not, by itself, ban abortions; it states that while there is no constitutional right, states are free to make laws that either permit, ban, or in some way, restrict abortions. Both Virginia and Florida are considering reducing the second-trimester permissions they now have in place, while some states, such as Maryland, are looking to place the right to an abortion in the state constitution. This decision does not prohibit Congress from passing a national law permitting abortions across the country, nor does it prohibit a national law prohibiting abortion. Minority leader Mitch McConnell says he will bring the prohibition to the floor, should he gain control of the Senate.

The court decision is already being challenged in lower courts as members of the Jewish faith who claim that life begins at birth, note that their religion and others, which allow for abortions, are being disregarded. Abortion, same-sex marriage, birth control, and same-sex relationships were all decided based on the privacy clause allowed in the 14^th Amendment. The late justice Ruth Bader Ginsburg believed that a ruling based on the equal protection clause of the constitution would have made a stronger case for Roe, rather than the due process clause for privacy used to validate the Roe decision. Justice Thomas has already announced that he would like to see Griswold, which allowed contraception, Obergefell, which permits same-sex marriages, and the others overturned as they are based on the privacy clause and are not in the Constitution.

The gun ruling by the court which removes New York states’ requirement for stating a reason for concealed carry weapons was also a favorite of Justice Thomas. The case had been turned down before when the court was first petitioned, but with the new conservative majority, he got his wish. This law expands Heller, which allowed for weapons in the home.

At the same time as this ruling, Congress passed the first major bipartisan legislation in thirty years that places some restrictions on guns. This new law, signed by President Biden, is in response to the horrific killings of schoolchildren and teachers in Uvalde Texas but is tossing a pebble at a giant problem as it only allows for red flag laws to be enacted by the states that could help reduce self-inflicted gun deaths, and increases background checks on those applicants with ages between 18-21. These background checks can open up sealed juvenile records, usually protected after adulthood, that might show episodes of unstable behavior or violence. It also prohibits gun permits for those convicted of violence toward domestic or dating partners but allows them to ask for reconsideration after several years. It also strengthens school safety and increases funding for mental health care. Most notably, it does not prohibit 18-year-olds from buying assault-type guns, nor does it limit the purchase of extended magazines or restrict sales of semi-automatic guns in any way!

The Miranda ruling prohibited a person who was arrested from suing the arresting officer who did not give him the proscribed warning and stated that the person was unharmed by this since there is no constitutional right to sue; a violation of Miranda is not a violation of the Constitution, even though Miranda is a constitutional right. While this does not nullify Miranda, it chips away at it; incremental decreases are another ploy the right uses to eventually negate laws it does not like. (Just think of Roe with a 23-week limit, then 20 weeks, now 15, 12, or 6 weeks; we should have seen this coming, but we thought those justices who stated Roe was settled law were telling the truth.)

Ruth Marcus, writing Sunday in the Washington Post, states that the damage that this radical conservative court has done cannot be overturned. She reviewed the three liberal justices’ dissent:

‘The three liberal justices, in a joint dissent, powerfully underscored the implications of the court’s action.’ “Whatever the exact scope of the coming laws, one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens,” 

“The majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them,” the dissenters assert. “The majority thereby substitutes a rule by judges for the rule of law.” ‘That is an astonishing indictment of their conservative colleagues, but it is fully justified. ‘“Neither law nor facts nor attitudes have provided any new reasons to reach a different result than Roe and Casey did,” the dissenters, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan, write. “All that has changed is this Court.”

On that note, I close. If you had planned to sit out the mid-terms, please get out there and VOTE!

“Til next week-Peace in the streets, I hope.