A few thoughts on the abortion ruling

A few thoughts on the abortion ruling,”


There’s no longer any room to pretend that the Supreme Court is a mere non-political referee interpreting the law in a vacuum.  If it ever was that, it’s now just another locus of political power, like the House, Senate, and presidency, a utensil for imposing the will of whichever ideology or group manages to secure control of it.  At present, that control rests with the forces of theocracy.

Biden has re-affirmed that he does not support increasing the number of justices to remedy the situation, even (presumably) if the Democrats were to hold the House and win an enlarged Senate majority making such action possible.  I’m guessing a few million Democrats who were on the fence about whether to vote this year just decided not to bother.  Why would they, if even a Democratic supermajority would remain committed to not doing anything to actually fix the problem?

The Electoral-Vote politics site suggests several actions Biden could take to protect abortion rights, even before the election.  Most of these strike me as requiring much more imagination and chutzpah than this administration has so far displayed.  Biden has handled the Ukraine crisis and other foreign-policy matters superbly, but in general seems timid and conventional on the domestic front.

I do have to wonder whether the people berating the Democrats for not “codifying Roe into federal law” at some point in the last few decades realize that court rulings trump legislation.  The Supreme Court could easily strike down such a law as unconstitutional on whatever grounds it could discover or invent.  This problem will persist as long as the theocratic majority on the Court does.

The Supreme Court’s power to overturn legislation which it judges to be unconstitutional — judicial review — does not actually exist in the Constitution.  The Court has simply asserted that power since the early nineteenth century, and gotten away with it ever since, so that it is now an entrenched and integral part of the way our system of government works.  To abrogate that power now, as some have suggested, would be a revolutionary upheaval.  Yet there is clearly a problem here which needs to be addressed.  With impeachment a de facto dead letter since it would now be impossible to get two-thirds of the Senate to agree to remove a justice, the Supreme Court is unaccountable.  There are many constraints on a president who abuses his power, as we saw during the Trump years, but there are none when the Supreme Court abuses its power.

If you actually read the Constitution, it seems clear that the founders intended Congress to be pre-eminent.  The present situation, in which the president is an exalted quasi-royal personage and Congress is the mere handmaiden of (or obstacle to) his agenda, is a crass perversion of the way the system was supposed to work.  Least of all were we meant to have de facto sweeping powers to upend the status quo vested in a few unaccountable judges.  While Roe v Wade itself overrode the states’ “right” to restrict abortion, it seems clear that the protection of such an extremely basic form of personal freedom would be consistent with the Constitution’s overall spirit of excluding government meddling from citizens’ personal lives, to say nothing of the separation of church and state — a legitimate exercise of the Court’s power to strike down unconstitutional laws.  Nor can “originalism” justify the prohibition of abortion.  During the period when this country became independent, abortion was commonplace and accepted.  It’s not credible that the founders would have endorsed banning it just because it has become a taboo of certain branches of Christianity.

Realistically, however, we will be in the post-Roe environment for some time to come.  Faced with such a huge setback to individual freedom, we can either go with the ever-present moan-groan-doom-gloom crowd and declare ourselves defeated, or we can fight back with whatever tools are available (I call this the “woe vs raid” choice).  Here are some useful tips and links for women in red states; I’ve included other such information in my link round-ups as I run across it, and will continue to do so.  Anyone else who has any kind of platform should do the same.  Every little bit helps to spread the word about whatever options women have for exercising their freedom in defiance of unjust laws.