Editorial rights purchased from iStock. Photo by SIBAS_Minich.
Times certainly have changed. We’ve gone from fighting for women’s rights to ignoring women altogether. I say “we,” but I mean people who care about democracy. For the democratically-minded, ignoring 50% of the population is problematic. For those more eager to live in an autocracy, not so much.
Today, July 13, 2022, Congressman Jody Hice was on the news. He was videotaped as he questioned a woman about pregnancy. He kept trying to get the woman to say that a fetus is a person. It was an idiotic line of questioning, but it points to an important fact: SCOTUS has decided that a fetus is a person and should have more rights than its mother. Who made that call? And why is no one challenging it?
Members of the religious right believe it’s appropriate for the government to force all pregnant women to carry their children to term because anything else is murder. War is not murder, though. That must be because the government sanctions war. But the government used to sanction abortion.
Right, but that was when the Supreme Court made all those mistakes, like allowing for same-sex marriage and LGBTQ rights and voter rights and all that nonsense. Justice Thomas has made it clear; he’s ready to undo those mistakes, so bring it on. (Well, maybe not the interracial marriage thing — perhaps we don’t undo that one.)
But anything else that is not firmly rooted in our history needs to go. Fifty years — as long as Roe v. Wade has been a fact of life — is apparently not a long enough span to be considered firmly rooted. This seems odd to me, given that 50 percent of our current population is under 40.
Roe v. Wade has been the law of the land longer than more than half the country’s population has been alive. And for those between 40 and 60ish, abortion has been legal and considered a constitutional right for our entire adult lives. In other words, for most of us, that’s pretty firmly rooted in history.
We know this isn’t the first time SCOTUS has made a decision upending something firmly rooted in our history, though. They say that’s relevant, but it isn’t, not really. SCOTUS removed significant restrictions controlling campaign finance rules about 12 years ago. Those restrictions had been on the books for a hundred years — longer than almost anyone living had been alive. Yet conservative members of SCOTUS had no trouble removing those laws when they voted 5–4 in favor of Citizens United.
Let’s admit that the firmly rooted in history criteria is just b*******.
SCOTUS also wants us to believe that only rights codified in the original Constitution can be considered constitutional rights. Are they counting the amendments? I ask because Amendment XIV says,
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” (emphasis mine)
When the government of a state tells a woman she may not make personal decisions about her family, or her healthcare, she is being deprived of liberty.
When the government, not the doctor or the mother, decides whether a child should be brought to term, the mother loses her right to bodily autonomy, as well — something the fetus’s father is never asked to forfeit. How does this comply with the constitutional guarantee of equal protection under the law?
And what about the Fifth Amendment — the one that guarantees due process? This amendment doesn’t just protect criminals from incriminating themselves; it also protects citizens from having their rights infringed without due process. That means a woman gets to go to court before her rights get trashed by right-wing religious nut jobs. At least, that’s what it’s supposed to mean.
A fundamental, constitutional guarantee that all legal proceedings will be fair and that one will be given notice of the proceedings and an opportunity to be heard before the government acts to take away one’s life, liberty, or property. Also, a constitutional guarantee that a law shall not be unreasonable, arbitrary, or capricious.
I would argue that SCOTUS was unreasonable, arbitrary, and capricious in its decision to overturn Roe v. Wade. But if you doubt me, here is the definition of just one of those words: arbitrary.
The term arbitrary describes a course of action or decision that is not based on reason or judgment but on personal will or discretion without regard to rules or standards. An arbitrary decision is one made without regard for the facts and circumstances presented, and it connotes a disregard of the evidence. In many instances, the term implies an element of bad faith, and it may be used synonymously with tyrannical or despotic.
I have to ask, Have the right-wing religious zealots who make up the majority of SCOTUS read the Constitution? I know it sounds like a silly question, but if they have, they seem to have forgotten large chunks of it.
Suppose we want to adhere to the Constitution as stringently as possible. In that case, anyone attempting to force a woman to carry a fetus to term will have to take her to court first to prove that this gross violation of her human rights is not unreasonable, arbitrary, or capricious.
If we want to adhere to the Constitution, every case of a state attempting to take away a woman’s right would need to be brought separately. That’s what due process of law means. And that right has been on the books since the Fifth Amendment was ratified in 1791. Is that rooted firmly enough in our history for you, Justice Alito? Justice Thomas?
No matter how I view it, this isn’t about the Constitution. It’s about a group of religious zealots who have attempted to codify their personal religious beliefs into law, violating yet another part of the Constitution.
When one set of religious beliefs (in this case, Christianity) is incorporated into the law, forcing people with different religious beliefs to comply with the law, even though it violates their religion, this is a direct violation of the First Amendment.
In Florida, a Jewish Synagogue is suing based on this argument. According to the Jewish religion, a mother is required to have an abortion, if her life is endangered by her pregnancy. In states where there are no exceptions for abortion to save the life of the mother, Jewish women would be forced to violate their own religious beliefs.
(Jewish people put the life of the mother over the life of the fetus — why do Christians value the unborn fetus more highly?)
It’s a strange case because even in their fight for religious freedom, we have yet another example of religion determining the law — which is not what the framers of our Constitution intended. Still, it highlights a contradiction inherent in SCOTUS’ ruling — the conservative justices appear oblivious to the content of the Constitution even as the opinion supporting this decision constantly reminds us of the importance of adhering to its tenets.
This SCOTUS decision and everything around it is like a bad episode of Black Mirror. The people who are supposed to guarantee our rights are the ones taking them away.
There is only one way the justices on the Supreme Court, who ruled to overturn Roe v. Wade, can believe that they were acting per the Constitution of the United States when they unreasonably, arbitrarily, and capriciously abolished our rights: if they think women aren’t fully human.
Say it isn’t so.
Addendum: 7/14/22 — Republican lawmakers have just blocked a proposed law giving women the legal right to travel from one state to another to seek healthcare. In other words, women in states that outlaw abortion will not be legally protected if they travel outside their state of residence to seek an abortion.