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| It didn't take long for the protests to erupt. |
Five (relatively) brief points:
1. The Leaker.
One thing we do know is that the leaker—a staffer? one of the justices themselves?—is a scoundrel of the first order. It’s a draft, after all, apparently written three months ago. One presumes that the Court hasn’t already released a final version for a reason. We’re not even sure this is the latest draft of the document. Perhaps it’s just a matter of wanting to clean up some of the language. (Curmie just signed off on the proofs of a book chapter and devoutly wishes he’d had one more chance to fix a phrasing rather than simply proofread. He understands.)
But it’s also plausible, though not likely, that one or more of the justices wants to modify their stance or even to change their vote. In the words of the great 20th century philosopher Yogi Berra, “it ain’t over ‘til it’s over.”
The leaker, whoever that may be—there’s a lot of finger-pointing at the moment, but no actual evidence, at least that’s been made public—has, of course, violated all standards of propriety, confidentiality, discretion, and professional ethics. Assuming the culprit is a lawyer (a good bet), anything less than disbarment is an insufficient punishment. There may be criminality involved, too, although Curmie has no particular charges in mind. All this presumes, of course, that we ever find out whodunnit: a risky assertion at best.
2. The Issues. Access to abortion has been a complicated and contentious issue since well before the Roe decision in 1973. Curmie wants to go on record (again) that there are honest, intelligent, and moral people at about every point on the spectrum on this matter. (There are also evil people at both extremes, but that’s not the point here.) Nor are the positions necessarily staked out according to religious beliefs. True, the evangelical movement and the Catholic Church have been prime movers in pro-life circles, but Curmie knows pro-life agnostics and adamantly pro-choice Southern Baptists.
Indeed, the Catholic position for centuries was that a fetus becomes “human” (and therefore that abortion becomes homicide) not at conception, but at “ensoulment,” the moment the mother is aware of the fetus’s movement… generally at about 18 weeks. Curmie may be getting along in years, but it’s not like he hung out at the local pub with Kit Marlowe, and he was already in college when the Southern Baptist Convention re-affirmed their church’s position to “allow the possibility of abortion under such conditions as rape, incest, clear evidence of severe fetal deformity, and carefully ascertained evidence of the likelihood of damage to the emotional, mental, and physical health of the mother.”
A 2019 Pew poll finds that a clear majority of American Catholics believe abortion should be legal in “all or most cases”; in 2018, voters in very Catholic Ireland overwhelmingly (66-34%) repealed the 8th amendment to the Irish constitution, the one that forbade abortion. Hardly the stuff of unwavering religion-based opposition, from either the Christian Church or its parishioners, this. The Bible, of course, has nary a word, either way.
None of this is to discount the reservations of those who do oppose abortion for whatever reason. The majority is not always right. But it’s worth noting that as the majority of the general population’s support for the legality of the procedure seems increasingly secure, the pro-life movement seems to have increased its fervency.
The case that’s before the Court at present, the one that Justice Alito (who wrote the now-leaked opinion draft), et al., are considering, concerns a Mississippi law that bans abortion after 15 weeks. The question before the Court, of course, is not whether such a law is a good idea, but whether it’s constitutional. Roe v. Wade suggests that perhaps it is not; the solution, in the minds of the conservative majority, is to overturn Roe, which is what appears to be happening. (Key word: “appears.” We shall see.)
3. The Aftermath. Assuming what now seems probable actually happens, the proverbial fecal matter will interface the whirling rotors in a matter of weeks, at most. Every conservative male-dominant state legislature will attempt to be the first to impose absurd restrictions on abortion rights, and if they can’t get there first, they’ll have a pissing contest to see whose new law is the most draconian, the most misogynistic, the most medically ignorant.
Someone somewhere will decide that not only is it illegal to get an abortion here in Trumpistan, it’s also illegal to leave the state to have the procedure done elsewhere. Sooner or later, even this SCOTUS will have to recognize that this system cannot be sustained. That might work out OK for the nation, but not for the individuals affected in the here and now. Oh, wait. Concern for the individual rather than seeing someone as part of a group: that’s a conservative notion. Oh, to hell with it. This is about showing them uppity fillies who’s boss. (Apologies for the correct spelling in the previous sentence… I just… couldn’t.)
4. A Possible Analogy from Curmie’s Professional Life. Many years ago, in (checks the Google machine) 1991, Curmie got a phone call from a reporter for a second-tier national newsmagazine, asking for comment about a recent controversy concerning the New York premiere of the musical Miss Saigon. Jonathan Pryce had played the leading male role of the Engineer in London, and producer Cameron Mackintosh wanted him to reprise the character on Broadway. Actors Equity Association objected to casting Pryce, who is white, in the role of a Eurasian character. (Pryce, being from the UK, was not a member of the American branch of Equity, and therefore needed a waiver from the union.) Mackintosh—no shrinking violet, he—threatened to cancel the production. AEA backed down.
Anyway, the reporter wanted my opinion on the matter. Exactly why they’d care what an Assistant Professor at a small college in Iowa thought about the matter was never made clear. But they asked, so I told them I thought Equity had erred twice: that the initial opposition was misplaced because the character was half white, but that once having taken their stand on moral/ethical grounds, they looked weak and irresolute when they capitulated. (My comments never made it to print, by the way.)
This is sort of the same structure my thinking takes as regards Roe v. Wade. I would have preferred that an American actor got the role of the Engineer—I suspect Americans can play French-Vietnamese characters as well as Welshmen can—but there was no real reason to break long-standing tradition by denying an established star like Pryce the necessary waiver. Similarly, Curmie is pro-choice, but Roe v. Wade is a bad decision. It’s not SCOTUS’s job to make new law, and try as you might, you can’t really find a constitutional imperative to legalize abortion nation-wide. “Should there be one?” is a different matter.
But the rest of the parallel holds, as well. Once Equity publicly raised objections to Pryce’s casting, they were obligated to maintain that ethical position instead of appearing to have been bought off (which, of course, they were). Similarly, as all current SCOTUS members averred in their confirmation hearings, Roe is now the law of the land, and it should take more than partisan politics to overturn it. The presumption rests with the status quo, as every debate coach in history has intoned ad nauseum.
5. The Political Manoeuvring.
All of which brings us to the politics of the situation. Let’s face it, that whole “law of the land” rhetoric is simultaneously true and, on the part of the conservative bloc of SCOTUS in this particular case, very much intended to deceive… not that such insincerity differs much from the litany of evasions and half-truths that have characterized every confirmation hearing Curmie can remember.
Current thinking is that Chief Justice Roberts would vote to uphold the Mississippi law but against overturning Roe v. Wade. Assuming this to be true (and you know what they say about assuming), that places the perfidy of Mitch McConnell front and center. In the three Senatorial elections prior to McConnell’s refusal to give Obama nominee Merrick Garland even a hearing (there was an election coming up, you see), Democrats got over 6 million more votes than Republicans. But because of the way the Senate is configured—Wyoming has as many senators as California, for example, despite having less than 1.5% of the population—McConnell was “majority leader.”
Fast forward to 2020. A president who, because of the arcane electoral vote system, was elected despite receiving nearly 3 million fewer votes than his opponent, made his third (!) nomination in his single term in office. Despite there being far less time prior to the election than there was for Garland, McConnell proclaimed that it was his job to get Amy Coney Barrett confirmed. Note, Gentle Reader, that he wasn’t arguing for a fair hearing. He was being, as he has always been, an unscrupulous partisan hack. (It’s not clear that McConnell is any more unethical than his Democratic counterparts, but he’s prouder of it.) This time, McConnell was majority leader despite his party having received over 24 million (!) fewer votes in the senatorial elections that led to the 2020 Senate. Nonetheless, despite the obviously unethical power play, Barrett was narrowly confirmed.
The longest-serving Justice, Clarence Thomas, has been on the Court since 1991. In the time since Thomas’s confirmation, Democrats have held the Presidency for 17 years, Republicans for 14. Yet two-thirds of the members of SCOTUS were nominated by Republicans. There are as many justices nominated by Republicans who lost the popular vote as there are who were nominated by Democrats. Ah, American democracy in action!
This is not to say that Democratic nominees are inherently better than Republican ones. Curmie has a good deal of respect for John Roberts and Neil Gorsuch, for example, objecting to the latter only for the totally-not-his-fault fact that the position he holds should have gone to Merrick Garland. But Brett Kavanaugh, irrespective of what may or may not have happened between him and Christine Blasey Ford when he was in high school, demonstrated a level of petulance in the hearings that ought to disqualify him from judging a high school speech contest, let alone a Supreme Court case. And Barrett was chosen for two reasons: she’s an ideologue, and she wasn’t yet 50. (To be fair, both were at least initially rated as “well qualified” by the ABA.)
So… even allowing for the absurdity of the enormous over-representation of small states in both the Senate and the Electoral College, it’s really the chicanery of Moscow Mitch that has brought us to where we are today. Confirm Garland, confirm Gorsuch (the first Trump nominee), admit you don’t have time to vet a Supreme Court nominee for a lifetime appointment after the death of Ruth Bader Ginsburg. Even if the GOP goes all-in on having a lame duck Senate confirm a lame-duck President’s nominee (not the best look, politically), that still leaves a majority (assuming what we hear about Roberts to be accurate) to uphold Roe v. Wade. If the extremely late nomination of Barrett were delayed or withdrawn, as it should have been, there’s a better than even chance that the Mississippi law would be thrown out and Roe wouldn’t be even under serious threat. This, of course, assumes that a Democratic nominee would be subject to the same litmus test on this issue as a Republican nominee, just in the opposite direction… a fairly safe assumption.
At best, we’re once again in the realm in which SCOTUS, unelected and chosen by the chance of who happens to be in the position of political power when an opening occurs is making new law… it’s just that this time they’re doing so in the opposite direction from what happened a half century ago. (Side note: Roe v. Wade was decided by a 7-2 vote; the majority opinion was written by Nixon appointee Harry Blackmun, so this wasn’t always a purely partisan matter.) Whatever your feelings about Roe v. Wade, whatever your political leanings, you can’t be happy with what appears to be happening. If you’re pro-life, it’s at best the right response for all the wrong reasons. If you’re pro-choice, it’s an abomination.
The worst part, though, is that Mitch McConnell’s reptilian smirk won’t be going away any time soon.
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