This past week has been a short burst of time that will be remembered for years to come as a momentous period in American life and government. But it may not be in a good way. Instead, there are signposts that parts of the country (including segments of its political class) are heading towards an embrace of both a kind of radical religious fundamentalism — as well as those elements that could be read as an endorsement of some of the more disturbing features of a Hobbesian world.
The net effect has been anything but a reinforcement of the basic advances in freedom achieved so painfully over the country’s history. The outcomes of this past week now also mean the nation is increasingly divided along the geographical, ideological, and philosophical lines that, in the main, overlap. Such an outcome bodes badly for the country’s future.
On 19 June 2022, America celebrated its newest national holiday, “Juneteenth,” commemorating the actual effective end of the practice of human bondage throughout the country. While president Abraham Lincoln’s Emancipation Proclamation had declared slavery to be at an end in those states then in rebellion against the Union, its practical effect had only gradually come into play as Union armies increased their control of the territory of the South. The Constitution’s 13th Amendment abolishing slavery had been passed by Congress on 31 January 1865, but it was only formally ratified by the various states at the end of 1865, bringing the amendment into legal effect.
However, on 19 June 1865, and thus the origin point of the “Juneteenth” holiday, the last real vestige of Southern resistance in the Civil War — in Texas — had finally been quelled and a Union army proclamation there had ended slavery in that final remnant of the Confederacy. In fact, the new holiday — officially recognised in 2021, but with little ceremony then, given the ravages of the Covid pandemic in public life — now acknowledges a celebration of emancipation and freedom that has come to have increasing force and presence in the nation — most especially for, but not limited to, the country’s African American population. The purpose of the new holiday thus serves as a commemoration of the promise to and the extension of freedom to all its citizens, not just for African Americans.
But in this same week of Juneteenth, the United States Supreme Court chose to roll back an important element under the right to privacy for women that had been confirmed nearly a half century earlier in their decision on the case, Roe v Wade. That wide-sweeping ruling applicable to the entire nation had confirmed the right of women to be able to exercise control over their own bodies for the purpose of accessing abortions in case of unwanted or medically merited terminations of pregnancy.
In response to the court’s actions, New York Times columnist Brett Stephens, usually a nuanced, reliably conservative voice, was seriously distressed by the court’s decisions. Stephens wrote, “For me, the word that comes to mind is arrogance. Supreme arrogance. In the gun decision, the court is denying New York State the normal democratic right to decide for itself how it should go about ensuring domestic tranquillity, which is the basic function of government. In the Mississippi abortion case, the court is doing something closer to the opposite: giving a state government the unfettered ability to erase an individual right that, until last Friday, had been upheld by the court for nearly five decades.”
That latter court decision, Roe v Wade, had extended that new right — stemming from the court’s understanding of a citizen’s right to privacy — thereby replacing the then-existing patchwork of restrictions and permissions prevailing across the country, up until that moment. Not surprisingly, such a big judgment also gave an impetus to those (political and religious conservatives) whose views on judicial activism ran counter to the breadth of that decision.
This decision had grown out of the energies of judicial activism which had begun during the era of Chief Justice Earl Warren from 1953 to 1969. That court’s efforts had erected formidable bulwarks against racial discrimination and segregation in favour of the rights of citizens to exercise their voting franchise or attend integrated schooling, as well through its decisions in favour of the rights of the accused in criminal matters. The impetus from Roe v Wade on abortion would continue on to decisions in favour of the right of access to contraceptives, and the legality of same-sex marriages and gay rights.
But this era of judicial activism was already running out of energy as, increasingly, it was poised to be replaced by a very different kind of judicial activism. This wave has been spearheaded by Justices Samuel Alito and Clarence Thomas, and, in the past four years, reinforced by three newly appointed justices — Neil Gorsuch, Amy Coney Barrett, and Brett Kavanaugh — all appointed by Donald Trump. (Presidents fill Supreme Court vacancies when they occur, with confirmation by the Senate. Supreme Court vacancies, along with other federal court positions, are lifetime appointments.)
In previous years, the so-called doctrine of originalism, championed by the late Justice Antonin Scalia, had argued for a judicial posture in which decisions by the courts must be motivated on the basis of the original intentions (whatever they are presumed to be) of the initial drafters of the Constitution or in succeeding amendments as they are adopted. But, crucially, no wholly new rights or privileges could be or should be discovered as emanating out of the nation’s Urtext of a constitution, either on the basis of any judicial inquiry or intent coming in light of new societal or political circumstances.
For such a position, the Constitution was not, as it is often put, “a living document”. Changes in law must come from actions by the national legislature — but they must also be wholly consistent with the originalists’ reading of that foundational document, unless the Constitution itself is amended. This philosophy was very different from the activism of judges who saw the Constitution as a legal framework whose interpretations must be responsive to the circumstances and needs of changing times and the evolution of the nation.
One America-based attorney friend wrote to this author discussing the context of the doctrine of originalism this way:
“The current version of ‘originalism’ is that the Constitution should be interpreted in terms of the ‘public understanding’ of the document and its amendments at the time they were ratified. Nowadays, even liberal judges agree that the ‘original understanding’ is relevant, to the degree it can be known (what DID the Founders think of telephone wiretaps or commercial speech on the internet?) What’s striking about the originalists is that they are also judicial activists, quite happy to strike down laws and precedents. That would have been anathema to old-fashioned conservatives who believed in judicial restraint.”
Thus with the appointment of the three new Trump justices, however, the doctrine of originalism has now become allied with that new form of judicial activism. This one, however, was intent on actively extirpating more expansive expressions of “rights”, derived or implied, by a “right to privacy” not spelt out specifically in the Constitution, even if the doctrine of equal protection of all citizens is. In this effort, its primary advocates were long-serving Justices Alito and Thomas. With the three new justices, there was now a working majority, even without Chief Justice John Roberts lined up in support of their brand of activism.
In retrospect, the decades-long effort to pursue and then protect abortion rights through the courts, rather than to relentlessly seek this outcome through legislative action state by state and at the national level in Congress, now has been shown to have an Achilles heel — it has turned out to be reversible by a judicial decision every bit as much as the right was protected for the past 49 years. Along the way, the rather hallowed legal doctrine of stare decisis (or the critical importance of letting precedents stand in the courts’ ruling on new cases directly related to an earlier one) for abortion rights proved to be vulnerable in the face of a determined onslaught by justices opposed to abortion — or at the minimum, opposed to any protection of abortion rights by the courts.
This ruling has given real energy and inspiration to those states wishing to seriously curtail or eliminate the right to an abortion through quick final passage of such laws “triggered” by the court’s decision that further and thoroughly restrict access to such procedures. (It is important to remember, too, that many big population states like New York and California have enshrined reproductive rights in state law and thus those laws are not affected directly by the court’s ruling.) Nevertheless, the urge to restrict access in some states even extends to such presumably impossible to enforce measures as giving the authority to anyone wishing to carry out a citizen’s arrest of someone undergoing, aiding such a person, or any medical personnel carrying out such a procedure, or even, in some way, restricting the rights of citizens to go to neighbouring states for such a procedure where prohibitions do not exist.
In response to such extraordinary legal provisions, a growing roster of major companies in America have promised to provide funds to transport any employee wishing to undergo such a procedure in the nearest state where that right so far remains unimpaired. Nevertheless, in such increasingly confusing and contradictory circumstances — and the distance, cost, and inconvenience — to access such a procedure in those states explicitly allowing abortions is already evolving into an issue about the lacunae in any guarantees of equal protection. There is a real likelihood poorer, minority, and young women will be significantly disadvantaged by this decision from the Supreme Court and the subsequent actions for two dozen states — and such women will be thrust into situations delivering deleterious effects on their lives for years to come.
Meanwhile, earlier this year in a special edition of Scientific American, an issue largely devoted to the impact of Covid on American life, science and medicine, reported on the increasing availability of the drug, mifepristone, as a safe, reliable alternative to surgical processes for abortion, and now increasingly tied to telemedicine consultations with patients that have evolved during the pandemic. The drug can be ordered online for home delivery, at least in states not banning its ordering and delivery, and a growing number of abortions take place this way. As the article explains:
“Ever since it was approved in 2000 as an abortion pill, mifepristone has been regulated as if it were a dangerous substance. The US Food and Drug Administration required doctors to be specially certified to prescribe it. Patients had to sign an agreement confirming that they had been counselled on its risks. Most onerously, the pill had to be given in person in an approved clinical setting — even though a second drug used to complete the abortion, misoprostol, could be taken at home. In addition, 17 US states have passed laws requiring an ultrasound scan before mifepristone can be prescribed. Yet decades of study have shown that the medication is safe and that those restrictions are needless, according to the American College of Obstetricians and Gynecologists and other medical groups. The rules have more to do with politics and ideology than with science.
“It took the Covid pandemic to strip away the fig leaf of scientific justification from one regulation. The US and several other countries that restrict mifepristone suspended the requirement of in-person distribution. Patients could access care via telemedicine and get the pills by mail rather than risk catching Covid at a clinic. A natural experiment unfolded that highlighted the safety of this approach. Last December the FDA acknowledged as much by permanently scrapping the in-person rule.”
Seen in this light, it is entirely likely such medical advances will make it that much harder to enforce the bans on abortion envisioned by the court’s decision and the trigger laws being passed by individual states. In future, this will add yet more complexity to efforts to police control over women’s bodies. The court may have spoken, but science and medicine may have other ideas.
For some people, a key element of the debate about abortion hangs on whether a foetus has become a viable embryo at fifteen weeks’ gestation (the restriction on when an abortion may still be performed according to some state laws) and thus a kind of person in waiting, especially since medical science now points to foetal viability from twenty-four weeks onward. But for others in the debate, the issue is consistent with a theological perspective that insists life begins at the moment of conception, when egg and sperm join together and are imbued with a soul.
Such a position argues that an embryo, no matter how early along in the process from conception onward, is a person in the legal and theological sense. (Such an argument means abortion is akin to murder.) Critics of such a position insist its proponents care rather more for the soul of an embryo than for the life and health of the would-be mother or the actual welfare of such a child, as he or she grows up over the next two decades, if the woman is required by law to give birth to a full-term child.
In the face of such an absolutist position held by some inserted into legal and political decisions potentially affecting the entire nation, compromise seems barely possible. Thus this new decision virtually guarantees yet other legal cases springing up all across the nation, making their way through the courts, in increasingly angry protest actions across the nation, and in angry debates in the public space over just how far such radical religious positions can or should be allowed to affect the entire nation, if at all. People like Justice Thomas are even making dangerous noises that this decision should merely be a prelude to further radical judicial action on same-sex marriage, gay rights, and the legal availability of contraception. The Republican Party in Texas has even advocated the revocation of the 1965 Voting Rights Act.
All of this will begin affecting in some — as yet undefinable — way in the mid-term election in November that will see a third of the Senate and all of the seats of the House of Representatives up for election, along with hundreds of state legislative seats and numerous governors as well. Most polling indicates a majority of the population had preferred to keep Roe v Wade in place, although not necessarily among a majority of Republicans, and obviously not among those for whom the continued legality of abortion anywhere is the single angry metric that will determine how they will vote in November.
Meanwhile, following the outrage over the mass killings in Minneapolis and Uvalde, Texas, Congress had actually reached a legislative resolution that allowed passage of a new law — a bill quickly signed by the president — that would enact a range of minor restrictions on the immediate purchase of firearms and sales of weapons to friends who would then let others do the shooting with them. It also included substantial funding for improvements in school safety and mental health care and services, the latter on the reasonable assumption anyone who chooses to kill multiple Americans with a firearm is not entirely mentally stable in the first place, and thus should not be allowed to carry out such acts with firearms.
However, this new law does not specifically restrict the sale or ownership of semi-automatic assault weapons such as those used in the killing sprees in Minneapolis or Uvalde, Texas. Moreover, such a provision, despite impassioned support for it from many across the nation, continues to run into strong opposition by a cadre of Republican senators and representatives from the Midwest, the Plains states, and the South who remain aligned to the position of the National Rifle Association and other weapons ownership interest groups on gun purchases and ownership.
Collectively, their opposition is based on a creative reading of the Second Amendment to the Constitution, the one that guarantees the right of citizens to own firearms in their capacity as part of a “well-regulated militia” — militia units raised by the individual states — and originally intended by the amendment’s drafters to ensure the country is not defenceless against an oppressive army at some time in the future, as it had first been against the British army during the Revolutionary War.
But times have changed, and that “well-regulated militia” has morphed into the National Guard whose units are now integral parts of the nation’s overall defence establishment. Nonetheless, the assertion every citizen has the right to own weapons for self-defence has been affirmed in various court decisions in recent years.
Now, in the past week, even as Congress was discovering a tiny bit of sanity and courage, the Supreme Court struck down a century-old New York State law requiring permits for individuals to hold and carry firearms as they go about their daily lives. A foreign observer of such split-screen imagery might well wonder, right about now, about a dangerous schizophrenia in American public life. And we haven’t even explored the repercussions of two other court decisions touching on the constitutional doctrine of the separation of church and state — one supporting grants to religiously based schools in Maine to support students in non-religiously related subjects, and the other allowing a school’s football coach to lead prayers from the midfield line in a sports stadium to pray over a win.
The problem is that fears about a growing national cleavage would not entirely be out of place. The populations in the states of the South, much of the Midwest, and the Plains and Rocky Mountain regions are significantly more supportive of public prayer, largely unfettered access to firearms, and simultaneously against the right of access to abortion than their fellow citizens in the Far West, the Northeast, and New England — and Illinois.
How women (and men) opposed to such a landscape will organise themselves for the coming election is something pollsters and other analysts will be watching extremely closely — even if no one can yet predict how it will affect the results of that election. Regardless, the court’s rulings have helped shake up the political, ethical and moral landscape of the nation. Profoundly, so, but in no clear direction — yet. DM