Roe v Wade – Early Blackface, Cultural Change, Latest Politics

Commentary on Overturning Roe, Part 1

There are several things I want to say about the Supreme Court decision to overturn Roe v Wade in Dobbs vs Jackson, terminate the constitutional right to abortion access for American woman, and thus downgrade American women to second class citizens. So, I thought to write a running commentary concerning the decision. Given that I’m not a lawyer, this running commentary will be weak on legal principles (but so is Dobbs v Jackson) and most oriented toward political and social concerns.

1. Suppressing Women’s Rights was normal. The early part of Dobbs is mostly the “arbitrariness” of Roe in overturning abortion laws in the states.

At the time of Roe, 30 States still prohibited abortion at all stages. In the years prior to that decision, about a third
of the States had liberalized their laws, but Roe abruptly ended that political process. It imposed the same highly
restrictive regime on the entire Nation, and it effectively struck down the abortion laws of every single State (10).

What was, and is, “normal” for Samuel Alito and the Court Majority was state government restrictions on the rights and citizenship of women and neither the full citizenship of American women or their rights to control their own bodies to the extent that men do. When Alito refers to “restrictive regime,” he means the restrictions on states legislating against women. Roe v Wade was consistent with the 19th Amendment, the Civil Rights Act of 1964, and other legislation that recognized women as equal beings and citizens and overturning abortion laws was part of the broad movement in American society to end the various kinds of legal “double standards” bearing down on women and black people. To the contrary, the current Court majority views the second class status of women as “normal” and treats Roe as a “restrictive regime” because it curtailed the efforts of state governments to restrict women.

2. Because Conservatives Exist, You Have No Rights. Alito then introduces what will emerge as the dumbest consideration in the whole 70 pages of the Court’s decision.

Casey threw out Roe’s trimester scheme and substituted a new rule of uncertain origin under which States were forbidden
to adopt any regulation that imposed an “undue burden” on a woman’s right to have an abortion.11 The decision provided no clear guidance about the difference between a “due” and an “undue” burden. But the three Justices who authored the controlling opinion “call[ed] the contending sides of a national controversy to end their national division” by treating the Court’s decision as the final settlement of the question of the constitutional right to abortion. As has become increasingly apparent in the intervening years, Casey did not achieve that goal. Americans continue to hold passionate and widely divergent views on abortion, and state legislatures have acted accordingly. (12)

Translating, the argument being introduced is that Roe was wrong and women don’t “really” have rights as American citizens because those rights are opposed by the GOP, religious conservatives, and other patriarchy advocates. It’s similar to refusing to acknowledge the dictum that “all men are created equal” because of opposition from the loyalists of 1776. But the idea that right-wing opposition nullifies rights is one of the key tenets of conservative thinking. Cops wanted to stop and frisk black guys any time they felt like it. So Fourth Amendment protections against against “unreasonable searches and seizures” went out the window. Republican politicians wanted Republican votes to count more than Democratic votes, so the Supreme Court gutted and re-gutted the Voting Rights Act of 1965 and announced that Republican Party welfare was more important than Voting Rights. The malignant Constitutional thinking that characterizes the overturning of Roe has characterized conservative Supreme Court jurisprudence for years.

Dems Need Biden Activism

It’s been six days since the Supreme Court overturned Roe v Wade and provided ultimate judicial authority for the wave of woman-hating activism against abortion rights that has engulfed red states like Texas, Ohio, Oklahoma, and Kentucky. Here’s a passage from early in President Biden’s speech in reaction:

Fifty years ago, Roe v. Wade was decided and has been the law of the land since then. This landmark case protected a woman’s right to choose, her right to make intensely personal decisions with her doctor, free from the inter- — from interference of politics. It reaffirmed basic principles of equality — that women have the power to control their own destiny. And it reinforced the fundamental right of privacy — the right of each of us to choose how to live our lives. Now, with Roe gone, let’s be very clear: The health and life of women in this nation are now at risk.

During that time, Democrats have been embroiled in arguments about whether President Biden and Congressional Democrats are at all effective and whether voting is worth it.

The arguments for Democratic leadership uselessness largely comes from the Sanders Hard Left but are also being energetically posed on twitter by figures like Stephen Robinson and Oliver Willis. For example, Willis poses the Democrats as weak and vacillating Gotham City type figures stupidly refusing to stand up to the Joker.

The counter-argument to “Democratic uselessness” is that the Court was lost because of the relentless attacks on Hillary in 2016 and specifically the rejection by Sanders of Hillary’s warnings about losing the Supreme Court if Trump was elected. Biden Democrats also point out that many of the solutions being proposed to the Court’s overturning Roe are either far-fetched or offensive. The offensiveness is especially true of the proposal to use tribal land as a haven for abortion rights but many Democrats also point out that proposals by Elizabeth Warren and others to use federal property or military bases for abortions would run afoul of the Hyde Amendment which bans the use of federal money for abortions. Likewise, the specter of Republican retaliation makes others highly skeptical of overturning the filibuster or expanding the Court.

It isn’t true that President Biden has done nothing. On the day Roe was reversed, Biden proposed to

Codify Roe v Wade into federal law
Guarantee that women can travel to states where abortions are available
Protect women’s access to abortion pills and contraception.
Seek to elect more Democrats to “restore the protections of Roe as the law of the land.

After the Alito draft leaked, the White House engaged with “dozens of representatives from reproductive rights groups, state legislators and private law experts to discuss a path forward.” My guess is that the meetings were either private or conducted with as little publicity as possible because I don’t remember much in the way of advanced publicity, public forums, news conferences, or media comment. There will be another meeting with blue state governors on July 1 and President Biden called today for the Senate to carve out an exception to the filibuster in order to re-establish a national right to abortions. Unfortunately, occasional Democrat Kyrsten Sinema of Arizona shot that down in the name of her undying commitment to preserving the filibuster.

According to CNN, Vice-President Kamala Harris was heavily involved in the discussions many of which focused on the possibility of state police agencies gathering information from menstrual tracking apps.

Harris has also assumed a leading role, convening her own discussions with advocates, faith leaders and law experts to collect different perspectives and policy ideas on how the administration could intervene to ensure the protection of certain safety and security rights should Roe be overturned. In a conversation on June 14 that focused on privacy, Harris was focused in part on questions about digital technology like period trackers, according to Melissa Murray, a constitutional lawyer and reproductive rights expert from New York University who participated in the discussion. “She was right there, asking really good questions, thinking about not only the sort of nuances of the issue, but also what’s the best way to explain this to the public so that they understand what’s actually at stake,” Murray said of the conversation.

As I’ve stated on twitter, these proposals and this consultation with “stakeholders” are definitely something rather than nothing. But it’s also far from being enough considering “the enormity of the Supreme Court taking away rights from more than half the American population.” In particular, the Biden administration needs to give up its preference for “inside politics” and conduct its resistance to abortion bans and promotion of women’s rights out in public and on both small and large scales. In the short term, the Biden people could:

1. Publicly coordinate with activists in abortion states which means President Biden, Vice-President Harris, and the many well known women in the Biden administration traveling to abortion ban states, meeting and publicizing pro-abortion and women’s rights activists, coordinating federal policy with the imperatives and needs of abortion rights activists, and promoting abortion rights activists and activism in the media;

2. Formulate federal policies that set standards for medical care in abortion ban states and seek to prevent states like Texas from letting women die from miscarriages, ectopic pregnancies, and other hazards of pregnancy in their hospitals;

3. Host legal critics of Alito’s belligerent decision for a public WH conference on abortion rights and their moral and Constitutional justification. One issue that could be addressed by legal critics is the issue of expanding the Courts to re-establish full citizenship for women and protect the citizenship rights of other segments of the American population.

4. Hold large-scale rallies for women’s rights in both red states and blue states, encourage public agencies and private employers to give employees time off to attend rallies, and adapt “bans off our bodies” (which is an effective slogan) as a symbol of the resistance to abortion bans.

Given the failure of Build Back Better, the Biden administration has become more about managing the federal apparatus and engaging in foreign policy than anything else. However, the Biden administration needs to become more of an activist, resistance administration if they are going to be effective in helping women in the United States recover their full citizenship and fundamental rights.

Hey Dems! Follow Beto’s Example. Hold More Rallies

Once Covid started in 2020, Democratic presidential candidates stopped holding full-scale rallies and did most of their campaigns through media appearances, television advertising, radio spots, and fund-raising messages. That continued after the election of Joe Biden as president and there were reasons. The Covid pandemic peaked again in Fall 2021 and Jan. 2022, Pres. Biden prefers insider politics, and (outside the Sanders movement) Democratic audiences got out of the rally-going habit, preferring less stagy events like protest marches.

But Democrats should re-integrate mass rallies into their mix for the 2022 election and beyond. Large scale rallies of 5,000, 10,000 and more are good ways to focus attention on Democratic office holders and policies, get media attention, and keep up voter optimism for the hard times of the post-Roe era. Pro-abortion, voting rights, and gun violence rallies would give Democratic office holders a big stage, provide exposure to activists on various issues, and be doubly popular because famous singers and musicians would be eager to perform. Large rallies might also be safer than the street protests which are increasingly subject to police violence and right-wing incitement.

The virtues of large-scale rallies can be seen in a Beto O’Rourke rally held at the Pan American Neighborhood Park in Austin, Texas last Saturday. Thousands were in attendance, Beto increased his profile in the Texas governor’s race, and he was able to tie the overturning of Roe v Wade to the Uvalde Massacre.

Gubernatorial candidate Beto O’Rourke called for a restoration of the right to abortion in Texas, along with other state and local Democratic candidates and leaders from abortion advocacy organizations, at a rally in East Austin on Sunday evening. “If this were about life, then those 19 children in Uvalde, Texas would still be alive, enjoying their summer break right now,” O’Rourke said at the rally. “This is about controlling the lives and the bodies of the women of Texas.”

Willie Nelson and other country musicians performed and speakers included activists like “Aimee Arrambide, the executive director for the abortion advocacy group Avow Texas” as well as more nationally known pro-choice Texas advocates like Wendy Davis.

One advantage of rallies is that they allow organizers to combine national political personalities and agendas with local diversity, activism, and flair. I went to a Barack Obama rally in Lexington, KY where a University of Kentucky voice student did a remarkable rendition of the national anthem. People (like me) in the audience were so overwhelmed that Obama had won the crowd even before he stepped out on the stage.

Democrats have super-majority advantages in public opinion on most issues in American politics. One way to focus, encourage, and shape that opinion in politically effective ways is to hold mass political rallies.

A Note on Overturning Roe– State Governments Do Not Represent “the People”

The Very White Texas state senate GOP caucus, facebook

As everyone knows, the Supreme Court overturned Roe v Wade on Friday, June 24, rejecting the key principle in Roe that American women had a constitutional right to abort pregnancies and authorizing conservative states to outlaw abortion altogether. Here’s the key quote:

Held: The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives.

Since Friday, there’s been a wide range of reactions from people who care about human rights in the United States, including calls to codify Roe into federal law, amp up distribution of abortion pills, maintain abortion rights on military bases and other federal property, use tribal lands for abortions, have employers pay for travel to get abortions, and expand the Court which would also require eliminating the filibuster in the Senate.

Different proposals have different merits and weaknesses. Using tribal lands for abortions was a complete non-starter but I think there will be a number of non-starters as people on the left begin to focus on restoring human rights in America.

My preference is to address the problem directly. I support eliminating the Senate filibuster and expanding the Court and I’ve argued on twitter that Democrats should seek to expand the Court from 9 justices to 19 in order to re-establish the rights recognized in Roe and overturn the enormous amount of awful Constitutional law that’s been enacted by successive right-leaning Supreme Courts since the Casey case in 1992.

What I wish to address briefly here is the Supreme Court’s idea that the states are proper vehicles for making law in relation to issues like abortion rights, reproductive rights more generally, gun violence, or the environment. Outside the 10th Amendment, the idea is that state governments in states like Texas, Wisconsin, Michigan, and North Carolina are “closer to the people” than the federal government and are better vehicles than the federal government for representing “the will of the people.” In the “syllabus” to the Dobbs decision, Samuel Alito writes in relation to Roe v Wade (1973) and Case v Planned Parenthood (1992) that “The Court overrules those decisions nd returns that authority to the people and their elected representatives” by which he means “elected representatives” in state government.

However, elections in many states, especially Republican-dominated states, are so distorted by gerrymandering and vote suppression that state governments do not and can not reflect the “will of the people.” In relation to gerrymandering, a classic example is Wisconsin. Here are the party vote totals and distribution of seats in the Wisconsin Assembly for 2018.

In the 2018 elections, Democrats got 54% of the vote for the Wisconsin Assembly but only received 36% of the seats. In other words, one Democratic vote had a .666% impact in electing Wisconsin representatives while one Republican vote had a 1.39% impact. As is now the case with women, being a Democrat in Wisconsin makes a person less than a full citizen while being a Republican gives a person a kind of miniature “super-citizen” status. In 2018, the Wisconsin legislature represented the “will” of a privileged minority of Republican voters rather than the people as a whole. The Wisconsin Assembly should not be deciding the fundamental rights of the people of Wisconsin.

However decisions concerning abortion rights are worked out, state legislatures in gerrymandered states like Wisconsin do not represent the “will of the people.”

Schumer Shows Some Spine: The Senate Vote on the Women’s Health Protection Act

Yesterday, head Democrat in the Senate and Senate Majority Leader Chuck Schumer called up the Women’s Health Protective Act for a vote and the vote failed by a margin of 49-51 with Joe Manchin and the two pro-choice Republicans voting against the measure.

But I see the vote as a step forward for the Democrats.

The Women’s Health Protective Act was originally passed by the House in 2021 and contains the following items according to Congress.Gov:

This bill prohibits governmental restrictions on the provision of, and access to, abortion services. Specifically, governments may not limit a provider’s ability to

prescribe certain drugs,
offer abortion services via telemedicine, or
immediately provide abortion services when the provider determines a delay risks the patient’s health.
perform unnecessary medical procedures,
provide medically inaccurate information,
comply with credentialing or other conditions that do not apply to providers whose services are medically comparable to abortions, or
carry out all services connected to an abortion.

In addition, governments may not (1) require patients to make medically unnecessary in-person visits before receiving abortion services or disclose their reasons for obtaining such services, or (2) prohibit abortion services before fetal viability or after fetal viability when a provider determines the pregnancy risks the patient’s life or health.

In other words, the Women’s Health Protective Act reaffirms the fundamental right to terminate pregnancies before a fetus is viable, identifies a woman and her doctor as the primary agents of decision making in relation to abortion health care, and bans all the impediments conservative states like Texas and Kentucky have been putting in place to make abortions more difficult and costly.

In addition, the Women’s Health Protective Act did not provide for any religious-based exceptions to its provisions.

Thus, the Women’s Health Protective Act affirmed women’s rights to abortion procedures as normal medical practice and provided no exceptions for state’s rights, Catholic hospitals, or the tender sensitivities of the religious right.

It’s an excellent bill and that’s why GOP Senate Leader Mitch McConnell was outraged.

Leader Schumer wants the Senate to vote again on a Democrat bill that would effectively legalize abortion on demand through all nine months. Their bill is written to protect abortionists rather than mothers. It would roll back health regulations. It would attack Americans’ conscience rights and religious freedoms. It would overturn modest and overwhelmingly popular safeguards like waiting periods, informed consent laws, and possibly even parental notification. And it is written so that in practice, it would allow elective abortion until birth. Democrats’ extreme position is radical on a global scale and it is wildly unpopular with the American people.”

A lot of what McConnell says is laughable regurgitation of things that the forced birth movement has been making up about abortion for decades.

However, one of the main points about the Women’s Health Protective Act is that the House authors did not care about anti-abortion opinion.

And neither did Chuck Schumer in bringing up the bill for a vote.

Failing to understand Roe v Wade, Sen. Joe Manchin called the Women’s Health Protective Act an “expansion” of Roe v Wade and voted “no.”

Make no mistake, it is not Roe v. Wade codification,” he said of the Women’s Health Protection Act. “It is an expansion. It wipes 500 state laws off the books, it expands abortion, and with that, that’s not where we are today.

I’m sure Manchin’s Republican friends provided him with that number but the bill would have codified Roe v Wade rather than all the slices Republicans have taken out of abortion rights since 1973

But Chuck Schumer didn’t care what Manchin said and neither should I.

“Pro-life” Republicans Susan Collins and Lisa Murkowski also voted against the bill because it didn’t provide any religious exemptions.

However, given that Collins jerked the Democrats around on Obamacare and voted attempted rapist Brett Kavanaugh onto the Supreme Court, the Democrats have stopped viewing her as an honest person with whom they could negotiate.

So Chuck Schumer didn’t care what Collins and Murkowski had to say either.

The Never Trumper journal The Bulwark accuses Schumer of “once again playing to the activist base rather than to his gettable colleagues.” That’s exactly right. Schumer and Congressional Democrats needed to stop listening to Republican leaders like Mitch McConnell, moderate conservatives like Susan Collins, and GOP leaning Democrats like Joe Manchin.

And they have.

Schumer still needs to get better at legislative strategy and all Democratic leaders in Congress and the Biden administration desperately need to improve their partisan messaging, find ways to get their message amplified, and stick their rhetorical landings.

But the mainstream Democratic leadership has crossed the Rubicon of giving up on the Republicans and the fact that Chuck Schumer now has a spine is a big step forward.