Abortion is the Least of Our Worries
With all due respect to women, who are being reminded that the government feels entitled to insert itself into their deeply personal medical decisions, abortion isn’t all or even the primary thing we need to be talking about in relation to SCOTUS’s latest awful ruling. The implication of their legal “reasoning” is much more profound and sinister even than turning reproductive health into a minefield for women and their healthcare providers (who were already facing a hostile takeover by that enlightened body, the Catholic Church).
The even bigger, even more alarming signal the “justices” are sending is that there is no principle behind their decisions. They rule not on historical precedent, but on their own convenience. In the twin rulings on New York’s concealed carry law and Dobbs, the justices have been entirely inconsistent on how they view impact and historical practices.
On the one hand, they insist that we have to look at the totality of our historical approach to abortion. It’s only been the last 50 years that we’ve had this idea that abortion is a right, so they have the authority to turn back the clock to 1868, when the 14th amendment was passed. On the other hand, 111 years of gun regulation in New York is not enough for it not to be dismissed out of hand as if it, too, were a recent aberration. Clarence took the opportunity to opine that contraception and gay marriage weren’t safe either, but conspicuously failed to mention interracial relationships, which just goes to show: these justices pick and choose the law they like and disregard the ones they don’t.
They similarly warp reality to fit their desired rulings. They ignore the negative, actual effects of allowing states to outlaw abortion. It’s not that bad for the womens, they say. NBD. They also ignore the danger of allowing people in a crowded metropolis to free-carry at will. These negative impacts are obvious, but of no concern to these justices.
They also lie. Gorsuch and Kavanaugh both rightly said — Roe v. Wade was settled law, then ruled against it anyway. The Court had previously interpreted the 14th amendment as providing equal protection under the law, and although we have (to our great detriment) never explicitly stated that women and people of color are in fact people in the full extent that white men are, we shouldn’t have to at this point. That’s how precedent works.
Not to these justices. They have made clear that they are not simply ruling on the law. They are guilty of the offense the right wing has accused so-called liberal judges of for years: activism.
It will get worse. Far worse. The Court is set to allow more prayer in schools in the name of individual religious freedom. It is set to hamstring the executive branch’s ability to regulate almost anything. Again, practical impact is not a consideration for them: in our current environment, forcing Congress to explicitly allow the executive branch to do anything in the public good is an obvious recipe for doing nothing while the planet burns.
They know which interests and forces will leap to take advantage of the vacuums they create. Lawsuits from corporate absolutists and right wing Christo-fascists are waiting in the wings. The justices don’t care, because they sympathize. They are not jurists, but partisan hacks.
We knew this. We knew this when Thomas was appointed. We knew this when Kavanaugh screamed his contempt at questions the Senate was entirely within its rights to ask him. We knew this when Barrett was nominated at all.
What won’t they chip away at? What rights are truly inviolable to this collection of judges?
I submit: none.
This creates two prospective, but none the less real, problems.
- How do we restore faith in the institution without tearing down all of the rules surrounding it?
- What happens if we find ourselves, as we did from 2016–2020, with a right wing president and Congress, especially if the right wing controls most state senates as well?
There is almost no way for the Democrats or anyone else to overcome this court. An impeachment is doomed to fail. A re-composition of Congress that might enable impeachment of any of the justices or the passage of new, incontrovertible amendments is unthinkable. A national referendum might be the most practical option. The right loves all of this. The right wants to undermine the legitimacy of institutions and then force the issue on anything divisive. It wants to force everyone else to withdraw from the current order. It will suit their narrative of dangerous, anti-democratic behavior (which describes their own behavior — nominally within the rules — quite well). In the event of real social unrest, the police and military agree with their revisionist, dark vision of the country.
Under the likely scenario of another president with ethno-authoritarian leanings (if not in fact the very same president as before), this court will likely rule in favor of executive privilege and power. State political parties will challenge gerrymandering rulings all the way to the high court until permanent one-party rule is all but guaranteed. Restrictions on voting rights will continue, as will harsh sentencing laws that continue to enforce a permanent underclass. Segregation will return, but not explicitly. Laws restricting what felons can do will be enough to ensure that people of color are unable to exercise the same rights as other citizens. White men will enjoy greater rights and latitude than others, and we will all be further indentured to the monopolies already ruling public life, while the supposedly left-leaning ones (Google, Facebook, Apple, etc.) are brought to heel.
Does this all seem like a fever dream? I don’t find it at all far-fetched. We have to recognize dishonesty, hypocrisy, and arbitrary exercise of authority for what they represent: a threat.
Dobbs is just the shot across the bow. It is not the end of bad rulings. This is just the beginning of an abiding danger and the dawn of an ethno-fascist state. When we say we’re concerned for women and reproductive rights — as real and as bad as the threats to both truly are — we’re missing the threat to anyone who does not want to live in a state explicitly ruled by no law but that of christian, white, male power.