It's Not About Roe

 The original sin of the United States has long been said to be slavery; and it is difficult to deny that sin was so overwhelming it obscured all others. But the second sin was awarding representation in Congress on the basis of enslaved body counts, expanses of land, mountains and sagebrush, i.e. setting up a country where land meant more than people.

Which is to say what kind of Republic can claim to be a representative democracy when local land barons can claim the same number of US Senators in a state like Wyoming or North Dakota as the states of California or New York?

The fact is, no matter how many polls suggest that 70% of Americans favor abortion or "reproductive rights" (and I doubt this is true, but just for the sake of argument, let's say it is) all that matters is how many Senators are for it or against it. 

That the Supreme Court was able to thwart the opposition to abortion in 1973 is really pretty remarkable. The fact is, the Court is a political animal, and for all the abracadabra about legal reasoning, the cases that reach the Court are, in many cases, and especially in this case, not about law at all, but about the personal beliefs and persuasion of the justices or, in some instances about the Court's perception of what the popular mood is.

This has been true since at least Dred Scott: If Roger Taney looks at a slave petitioning for his freedom and says, "You are not a man, not a human being. You are property belonging to someone else,  and you are certainly not a citizen, so you have no right to appear before the Court," where is that in the Constitution? Does the constitution define a human being? It may define a citizen as a person born within the borders but it does not define "person" beyond saying something about 2/3 of a person.

If Harry Blackmun looks at a woman who wants an abortion and says her right to privacy entitles her to control her own body, then he is denying the claim that in the case of abortion there are undeniably two bodies and possibly two sets of rights involved, that of the fetus and that of the woman carrying the fetus. If the fetus is like Dred Scott, it has no rights. It is not a human being.

Blackmun spent precious little time in his opinion justifying the right to privacy and most of his time trying to decide the essential issue in the case of abortion: When does human life begin? When does the fetus, like Dred Scott gain "standing" before the Court. That is, when does human life begin and up to what point is the fetus the property of the mother?

6 weeks Gestation

The standard complaint is abortion rights are about the rights of a woman to control her own body; but the counter is obvious--you have every right to control your own body, but you do not have a right to control someone else's body and if you believe the fetus or a cluster of 8 cells is someone, then you have no right to control that. 

Blackmun decided human life begins at "viability,"  (i.e., the point at which the fetus is capable of living outside the body of the mother, even if that existence, that life is dependent on the efforts of a neonatal ICU.)

22 weeks Gestation

There was nothing new about Blackmun's formulation. Life begins when the baby draws its first breath, was one solution favored by some churches. Life begins at "quickening," i.e. when the mother can first feel the conceptus move. Life begins at fertilization has been the mantra of Right to Lifers. (Of course, this poses theological problems, for some, because likely more than half of all two cell zygotes never make it past a thousand cells and are lost, and if ensoulment has occurred so early, there are a lot of lost souls hanging about in purgatory.) Or life begins with a heartbeat. The problem with the heart beat line is you have to figure out what you're calling a heart: most of the science suggests true heart, differentiated heart cells are not present until 20 weeks gestation, although there are some electrically active, "beating" (or twitching or contracting/relaxing cells much earlier.)

8 weeks Gestation

But all this goes way beyond privacy or equal protection under the law or the 14th amendment. Truth is, the Supreme Court, ever since Marbury v Madison has been asked to tell us what the law (i.e. the Constitution) tells us we cannot vote on and there is no mention of privacy or abortion in the Constitution, so much as it pains me to say it, those medieval Inquisitors on the Court are likely correct when they argue that abortion, gay marriage, contraceptive use by married couples are likely all things which should be voted on. 

For 50 years we got away with not having to vote on this divisive issue because the Court stepped in and made a decision. Now the Court says, no, we have to start arguing about all this in the legislatures, it is not going to step in and referee this fight. You have to vote on it. 

But vote where? We could say the Congress, the people's representatives should vote on all this, but then you run into a problem, and that is the problem liberal Democrats (like me) have seen for decades: the Congress, mostly the US Senate, is not at all representative of "the people's will." When John Thune and John Barrasso, who are the Senators from South Dakota and Wyoming who represent, combined,  roughly 1.3 million (about the population of New Hampshire) have as much to say about abortion, gay marriage, and contraceptive use by married couples as Dianne Feinstein and Chuck Schumer who represent 80 million people combined, then we do not have a representative democracy. Or we have to ask if this is a representative democracy, what or whom does it represent?

As for the current Court, it is of course the creature of conservative politics, the Federalist Society, the evangelicals, the neo Nazi Republican Party of the resentful Right. The pathetic thing is to watch so many people react as if they are shocked, just shocked (!) these folks have performed just as they were selected to perform. When Adolf Hitler ranted from stages all over Germany about the world wide Jewish conspiracy which had stabbed the noble German army in the back during WWI, a war Germany never lost but which was a case of victory having been stolen from the rightful winner, many Germans were shocked, just shocked that he really meant what he was saying. 

So it is with our current Court. They are every bit as conservative as we thought they were and as the man who appointed them who says all those wild things we did not believe anyone would ever believe.( In fact, that argument of you should not believe outrageous things just because someone says them has been advanced by Sidney Powell in her own defense against the voting machine company, Dominion Voting, in the defamation lawsuit. Powell said  Dominion stole the election by hocus pocus in their computers--well, says Sidney now, nobody in their right mind should have ever believed something so baseless. It's not my fault if people are fools.)

As Mad Dog has argued for so long, our problem with the Court is we have wanted it to be the "Father Knows Best" Court, who will hand down sagacious opinions, without prejudice, and basing their calls, like umpires on simply looking at the pitch in the strike zone, a rectangle of justices which is so well defined it doesn't matter who the umpire wants to prevail, the lines are drawn impartially and clearly. It doesn't matter if it's Babe Ruth or Ty Cobb at the plate: the lines are drawn the same for all. 

But the controversial social cases which come before the Court are mostly beyond the scope of the law. So they have to make it up as they go along, not because they are vile people but because The people demand a decision. So, the justices rely on what their parents, not their law professors, taught them.

And this means they know what result they want and they construct a road to get there. One of the most glaring examples of this was Scalia's opinion in Heller. Scalia loved guns. Scalia thought an armed population could never be dominated by tyrants. (As if Vladimir Putin would be much intimidated by a population armed with AR-15's.) So, Scalia ignored that annoying first phrase of the 2nd amendment, "A well regulated militia being necessary to the security of a free state," and he spent pages on the meaning of the word "people" in that second part "the right of the people to keep and bear Arms" as if the first sentence never existed. The only place in the Constitution where the founders actually explain WHY they are conferring a right and that explanatory phrase is ignored like the proverbial red headed step child. (Personally, I would never ignore a red head.)

The Court has been worshiped as an institution unaffected by the passions of the moment. It stands above, insulated from hot feelings, rendering carefully worded, dispassionate opinions which calm the tumult, except of course, when it doesn't.  The Court dresses itself in priestly robes and ceremony is very important. "If it please the Court. Oyez! Oyez!" It's a wonder sessions do not begin with Court clerks wandering around swinging smoking incense containers.  The Court as the anchor of bedrock Constitution, as a bastion of law above passion is a comforting bedtime story; but is not reality. 

The fact is, the Court is and has to be, whether we like it or not, a creation of human beings, of their beliefs and passions and as the mood of the country shifts, so should that of the Court.  The idea of trying to find meanings in documents written by 18th century land owners or 19th century antagonists like so many churchgoers who believe "all the answers are in this Good Book," is burying our collective heads in the sand.  The answer, dear America, lies not in the stars, but in ourselves.  Every time an administration changes, the new President appoints a new cabinet and he (or she) ought to appoint a new Court, rotating from the federal judiciary some judges up to SCOTUS justice positions, or simply finding new ones.  Stop fantasizing about "stability" and judiciousness and start facing reality.

As I count it, there are 20 states where sentiment is against abortion--the old Confederacy and some of its diaspora. But there are 6 to 8 states where opinion is closely divided. And this 6 to 8 may change over time. If there are 28 states against abortion, that's 56 Senators, almost a super majority of Senators, but those 56 Senators represent less than 40% of the nation's people. 

And that, my fellow citizens, is the problem.

When we have a structural problem with the very conception of how a representative Democracy should work, then abortion is only the most current and visible problem we've got. We simply have a system which is so undemocratic, we cannot govern, and the nation is no more than an oligarchy.