THE REVOCATION of Row v. Wade, like the revocation of the Edict of Nantes, is an act of national self-harm. Louis XIV’s decision to revoke the royal promise of religious toleration, drove tens-of-thousands of Huguenots (Protestants) out of his realm. Thousands fled to the Netherlands and Great Britain, thousands more to the rising state of Prussia. Economically, culturally and militarily, the triumph of religious bigotry over rational political compromise weakened the French state profoundly, The revocation of Roe v. Wade is certain to have a similar effect on the future of the United States.
Intelligent American capitalists will be swift in their condemnation of the Supreme Court of the United States’ decision to overturn what most Americans believed to be a settled legal/constitutional right. Removing the option of easily available abortion services from a large percentage of the US female population cannot help but result in a serious dislocation of the American workforce.
While US women continued to be able to exercise personal control over their own fertility, their long-term participation in the paid work-force remained assured. The removal of that control in approximately half of the fifty US states raises serious supply and demand issues for American employers. The impact of millions of young women being required to carry their pregnancies to full-term is readily imagined. Such an arbitrary restriction in the supply of available workers can only exacerbate already serious labour shortages and worsen wage inflation.
The revocation of Roe v. Wade is also likely to incentivise the migration of large capitalist enterprises out of radically anti-abortion states like Texas, Missouri, Mississippi and Alabama. Relocating to a more liberal state may prove to be one of the few ways successful corporations can keep their most valuable senior female employees on the payroll. The Supreme Court’s decision has given these employees every incentive to move out of “Pro-Life” states – quite possibly to a new job with one of their former employer’s competitors.
Nor can it be long before the Pro-Choice forces invite “progressive” Americans to boycott the products of corporations which refuse to leave Pro-Life states. Already many corporate leaders are reassuring their female employees that they will pick up the cost of out-of-state terminations. This can only be a short-term fix, however, given the likelihood that Pro-Life legislatures will attempt to deny pregnant women access to FDA-approved abortifacient medication, or, even more controversially, prohibit them from crossing state-lines while pregnant.
Unintended consequences such as these will impose increasingly intractable problems upon those Republican Party-dominated states proclaiming themselves to be simultaneously pro-business and anti-abortion. Should it become obvious that the state’s outlawing of abortion is negatively impacting its ability to attract investment, or, worse still, promoting dis-investment, then the Republican Party is likely to fracture.
The enormous difficulties associated with ideologically-inspired attempts to reverse the tides of social and economic change – Prohibition being the most notorious – are about to be encountered all over again by a new generation of Americans. This time, however, it may require something more radical than the ratification of the Twenty-First Amendment to the US Constitution which brought Prohibition to an end in 1933.
At some point, and the decision of the six conservative Justices of the Supreme Court to revoke Roe v. Wade has undoubtedly brought this point closer, Americans are going to have to come to terms with the fact that their beloved constitution is no longer fit-for-purpose.
A revolutionary document, in its time, the passage of two centuries has exposed the deeply anti-democratic elements deliberately woven into the constitution of the American republic by its founding fathers. So strong are these elements that it required a bloody civil war to expunge the pernicious influence of slavery upon the evolution of American liberty. It is no accident that it is precisely in the constitutional amendments giving effect to the abolition of slavery that the justices responsible for handing down Roe v. Wade in 1973 went looking for the legal principles confirming women in the ownership of their own bodies.
Unsurprisingly, given its dramatic post-war role in expanding the ambit of personal liberty, American liberals have come to regard the Supreme Court as the most effective instrument for securing the social changes they desire. Beginning with Brown v. Topeka Board of Education, which racially-desegregated public schools in 1954, the Court handed down a series of progressive judgements (Row v. Wade being one of the most significant) which were believed by most Americans to have changed their society forever.
Most – but not all. American conservatives were both astounded and outraged by the emergence of a liberal Supreme Court. Their consternation was understandable, because for most of US history the Court had been a bastion of political reaction. It was the infamous Dred Scott Decision of 1857, which declared that no Black person could ever be a US citizen, that made the Civil War inevitable. An equally reactionary Supreme Court struck down much of Franklin D. Roosevelt’s “New Deal” in the 1930s.
In the eyes of conservative Americans, the liberal Supreme Court of the past 70 years has been a dangerously aberrant entity. Consequently, the American Right has spent the past 50 years availing itself of every opportunity to replace liberal justices with legal conservatives. Thanks to Donald Trump, the weight of judicial opinion on the Court has finally been shifted sharply to the right. The revocation of Roe v. Wade may only be the beginning.
The “originalist” doctrine of Justice Samuel Alito, and his five Roe v. Wade concurrers, holds that the US Constitution must be interpreted according to the prevailing legal concepts and moral precepts of the historical period in which it was written. Present-day legal and ethical ideas cannot be grafted retrospectively onto the reasoning and intent of the original authors. While this doctrine holds sway on the Court, the Constitution can only become a reactionary cage in which Americans will remain confined for the next 30 years.
Perhaps the most surprising feature of the political reaction to the revocation of Roe v. Wade is the absence of any significant argument condemning the whole anti-democratic schema of the US Constitution. While there has been bitter condemnation of the Court’s judgement, the wider objection to unelected judges, appointed for life, thwarting the will of a clear majority of the American people, has not yet become a feature of the debate. Nor is there any evidence of a growing political movement in favour of summoning a second Constitutional Convention to draft a new, genuinely democratic, set of rules for Twenty-First Century America.
A United States forced to live by the beliefs and values of the Eighteenth and Nineteenth Centuries: brutal eras in which slavery was legally sanctioned, women treated as chattels, and LGBTQI persons persecuted and imprisoned; cannot hope to lead the “Free World”, or compete economically with nations focused fearlessly on the future. In order to form “a more perfect union” a second American revolution has become as necessary as the first.
This essay was originally posted on the Interest.co.nz website of Monday, 27 June 2022.