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.
Oh Chris. Your last few paragraphs shown you haven't really engaged very much with Americans. Even the liberals worship the Constitution. The founders seem to be well established as secular saints, practically infallible – just misinterpreted by the other side.
And of course as a member of the religious right said to me – "it's not the Supreme Court's job to make rulings aligned to public opinion". (If that were so, they'd have had decent gun legislation by now.)
There have been hints and more than hints of what's to come. Obergefell v Hodges? Brown v Board of Education? Loving v Virginia? I guarantee of Clarence Thomas could get his marriage grandfathered in he cheerfully vote for that – unless he wants a divorce from his embarrassing wife. :) The Supremes have already nibbled away at Miranda rights, and the religious right have made it clear they are going after contraception.
I must say though, I had not considered the role of business in this. What you say is very interesting, and I hope it's the way things play out. Although let's face it the business of business is making money, and if they can make more money supporting the decision and opposing it ..... No doubt the bean counters are at work on this already.
I confess feeling a bit foolish having previously pontificated that the American system of checks and balances would reasonably easily cope with a situation like this. I was wrong, although I didn't necessarily foresee something quite so drastic. One can only hope as you said that the best and brightest from the red states will flee to the blue. Already the red states take more out of the Federal system and they put in – perhaps, if the subsidies are withdrawn or reduced they might change their mind. But the religious right is so powerful they are I somehow doubt it. In which case, they are probably due in the main for a demotion to Third World status.
I think you know that such a revolution is not necessary to modernise the constitution. It can be done in a more moderate way.
For instance reduce the influence of the Court and it's lifetime appointed judges. Judicial appointments need not be for a lifetime, but to a fixed age, such as 80.
There are a variety of other fixes that would also make a difference. Statehood to Washington DC.
Of course this does require democratic majorities in congress to achieve. This will happen again, which is the great strength of elections. Parties that have broad appeal are not permanently in the wilderness.
All those people currently predicting civil war or revolution are hyperventilating. Inevitably there are incremental fixes that will solve the problem.
'thwarting the will of a clear majority of the American people' - they are doing no such thing. They are saying it should be decided in a democratic way rather than imposed by a group of unelected judges. If you are correct, then the majority will force the elected officials to create the necessary laws. If they don't, they will be voted out and replaced.
Seems like a reasonable call. But then again, listening to the majority seems to be so past century. Now it is all about shutting down those that may have a different idea. Scream about outrage, to hell with debate.
I will also state I am a big supporter of the mother's right to chose. Just that perhaps demons are being seen where there are none.
The trouble with the original court decision was that it was not about abortion.
It was about a womans privacy as guaranteed by the 14th amendment. It was simply a smart legal team that dreamed up the appeal to the court.
Now another legal team has come up with another arguement which basically claimed that the constitution didnt enshrine any right to an abortion.
Even Ruth Ginsberg (the darling of the feminists) said that the original case was wrong and the court should never have heard it.
Get in the chips and the beers and buckle up as the court hears cases about all sorts of things like same sex marriage, gay rights and anything else that is currently legal but is not covered in the constition and its amendments.
However I see the biggest concern is the president of the USA publicly telling one and all that the court has got it wrong.
And we all wonder why the rule of law isnt working.......
The whole thing is reason to wonder about the wisdom of a written constition.
To put Roe vs Wade into perspective, it is not the role of the Supreme Court in America to create laws; that right is restricted to America’s elected politicians who are representatives of the people. That’s how democracy works over there and also here in New Zealand.
Fifty years ago, the Supreme Court exceeded its mandate in determining Roe vs Wade; that anomaly has now been addressed and rectified. The net effect of this change is that abortion laws are now to be determined by each individual state. If the people of California and NY want legal full term abortions, they can have them. If the people of Texas want to restrict access to abortions they can do so.
To rail against the delegation of law making to the individual States is to push back against the democratic process. Sure, it’s not perfect but what would you replace it with, Judicial fiat?
Quote: Yes! ... its worth repeating this astounding misguided legal notion ...
"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."
If there was any doubt that American society has lost the plot (guns, drug deaths, Kanye West et al) then this Supreme Court straightjacket ... dispels the thought.
Chris: "the whole anti-democratic schema of the US Constitution"
Surely that is exactly what has been addressed. The abortion issue has been acknowledged as outside the constitution (and the purview of the supreme Court) and placed where it belongs, with the people and their elected representatives. It's not a reinforcement of the relevance of the Constitution, in this case, but it's dilution. I don't know how you can conclude pretty much the opposite of that Chris.
Given what we now know about the pre birth phase of our lives it is well to re-visit the abortion issue and the very fundamental moral questions that arise
: life or death? Are the unborn a mere "clump of cells"? Alive and human? What is the act of their destruction? It doesn't get bigger than that.
The judges turned to the 17th century for evidence to back up their judgements. To Sir Edward Coke - a man who basically thought that women were property, and they were disingenuous in their statements, when they were questioned under oath as to their thoughts on Roe.
They suggested that the right to abortion was not deeply rooted in American history or traditions. Which is interesting considering Benjamin Franklin published a recipe for producing one.
As if this wasn't bad enough, some states do not have exceptions for incest, rape, or ectopic pregnancies – the latter of which will inevitably cause the death of the woman who has one – absent medical intervention. This is simply a cynical power grab by the religious right, who haven't even read their own Bible as far as I can see – because that also provides recipes for abortion, and suggests AFAIK that the soul does not enter the body until the first breath.
For years now on the US blogs I've been following, conservatives have blagged on about "activist judges" – now that they actually have some, they are remarkably silent. Yet more evidence of Republican hypocrisy.
"We are the Christian Taliban.This is the era of Christian nationalism. Christian nationalism is on the rise and people are thirsty for it. They are hungry for this. And we are the Christian Taliban. And we will not stop until ‘The Handmaid’s Tale’ is a reality and even worse than that,”
I once asked an American conservative and Trump supporter – extremist in my view – "What policies would you introduce to cope with the number of unwanted children produced by abolishing, as you support, the right to abortion and to contraception?"
The answer was "Not my problem!"
This I'm afraid is a common attitude amongst conservatives today, not just Americans. Unfortunately, it eventually becomes everyone's problem.
David George ... I assume (I presume correctly) that your prohibition? of abortion includes cases where "life or death"! ... of the Mother! is in question by denying the right to abort.
I would be surprised if most New Zealanders are not repeat not in favour of the current (open slather/slaughter?) of the existing law.
But they are just as exercised over the opposite inhuman doctrinaire hardline-religious view that prohibits the procedure
"Fifty years ago, the Supreme Court exceeded its mandate in determining Roe vs Wade; that anomaly has now been addressed and rectified. The net effect of this change is that abortion laws are now to be determined by each individual state. If the people of California and NY want legal full term abortions, they can have them. If the people of Texas want to restrict access to abortions they can do so."
Interesting. This decision is now being debated all over the US by legal scholars and historians. But some random guy on the Internet I hope with a degree in American politics, but sincerely doubt they have one, has decided that the Supreme Court is correct. Despite the fact that at least six of them are corrupt dissimulators.
It's beginning – the results of "re-visiting the abortion issue and the very fundamental moral questions that arise."
Dear GS, I'm always flattered when you quote me. :-)
In which case Brendan I guess you flatter yourself.:) If any of you people could show any evidence that banning abortion reduces the number of abortions, I'd be a little happier – but you can't. Canada has far fewer abortions than the US, and it regards this as a private matter between a woman and her medical professional.
One thing that banning abortions does do though is it vast Lee decreases the number of safe abortions and increases the number of backstreet unsafe ones with a concomitant increase in the deaths of women. But as you people seem to say "not my problem".
Dear GS, I suspect most conservative Christians like myself would accept there is a case to be made for abortion when the life of the mother is genuinely at risk. What we oppose is the wholesale slaughter of innocents.
Again Brendan – countries that have free access to birth control and abortion have fewer abortions than those that don't. Even Saudi Arabia has more liberal abortion rules than much of the South of the US. And I'm not quite sure why you consider a cluster of cells to be a human being, particularly an innocent human being. Doesn't the Bible say that the soul enters the body at the first breath?
The new Testament says nothing about abortion, and the old Testament seems to be somewhat in favour.
Indeed, abortion wasn't an issue even amongst conservative Christians in the US, until they decided they needed a wedge issue, and a stick to beat the Democrats with.
"In 1967, more than five years before Roe, a group of pastors founded the Clergy Consultation Service on Abortion, a network of Christian-faith leaders committed to helping women get both legal and illegal abortions from licensed professionals. By the time Roe passed, as many as half a million women had obtained a safe abortion thanks to the CCS, whose members claimed to be compelled by “higher laws and moral obligations transcending legal codes.” They used the Bible’s authority to argue for abortion care as not just a basic human right but a moral Christian imperative."
"the “unborn” are a very convenient group to organize around because they don’t make any demands of you and they’re not morally complicated—unlike those in prison, those with addictions, or those trapped in poverty. “You can love the unborn and advocate for them without substantially challenging your own wealth, power, or privilege, without re-imagining social structures, apologizing, or making reparations to anyone. They are, in short, the perfect people to love if you want to claim you love Jesus but actually dislike people who breathe.”
United Methodist pastor Dave Barnhart Said this in 2020. Seems to me to encapsulate the relatively recent objections to abortion by many conservative Christians.Seems to fit you to a T in fact, given your attitude towards poor people and those who don't live up to your high social standards.
"The Southern Baptist Convention passed resolutions in 1971, 1974 and 1976, after Roe v. Wade, affirming the idea that women should have access to abortion for a variety of reasons and that the government should play a limited role in that matter."
Still, it's nice to have elicited a response from you that suggests you won't insist on 10 year old girls who have been raped being forced to carry the result to term. Baby steps I guess. – Pun not intended.
I typically find that when people of no faith make claims about what the Bible does or does not say, they do so from a position of theological illiteracy. You can find my refutation of your assertions over at Karl du Fresne's blog starting: "I would like the opportunity to briefly refute R Singers claim that “there is no direct prohibition against it (abortion) in the Bible”.
Brendan. I find that when people of faith make claims about the Bible does or does not say they usually do so from a position of theological illiteracy. Because most Christians in fact don't read the Bible either all the way through or very regularly. In fact a lot of atheists – being ex-fundamentalist Christians know a great deal more about the Bible than Christians, given that reading it propelled them towards atheism.
And I have mentioned this before, but your theological illiteracy towards Islam has never stopped you commenting on it inaccurately and at length.
Incidentally, I have washed my hands of Karl du Fresne's blog, since he started allowing his toadies and cronies to insult people without allowing people the right of reply. And freely admitting that that is his policy.
Incidentally Brendan, if your refutations are the usual ones I have read them and seen them dismissed by people a damn sight more theologically literate than you.
By usual ones I mean the result of a fight where a woman loses a fetus, and something about God knowing someone in the womb or something – can't be bothered checking.
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