The US Supreme Court should be told that the abortion issue is settled

by Carlton Joseph

Carlton Joseph

The State of Mississippi, after losing decisions in the lower courts to make abortion illegal in the US after 15 weeks of pregnancy, has appealed the decisions all the way to the Supreme Court.  As expected, the lopsided conservative Supreme Court has decided to hear the case, even though Chief Justice Roberts called out the solicitor general of Mississippi saying: “we granted cert on this question about the number, could states ban abortion before viability. Your brief primarily argues we should overturn Roe v. Wade, which is not what we granted cert on.” Roe v. Wade protects a pregnant woman’s liberty to choose to have an abortion without excessive government intervention.

Obviously, Justice Roberts understands that this case is a Trojan Horse, and that opponents of abortion are using it to dismantle Roe.  Why is he taking the case? Fifteen Justices of varying political backgrounds over the past 50 years have reaffirmed Roe and four, including two present members of the court, have said no. Does Justice Roberts want the repeal of the 1973 landmark decision to be his legacy? 

The Court classified the right to choose to have an abortion as “fundamental”, which required courts to evaluate challenged abortion laws under the “strict scrutiny” standard.  The sponsors of the Mississippi bill know that the bill does not meet the legitimate interest test and have openly admitted that they are pursuing the case because they have new Justices in the Supreme Court.  By taking this case the Supreme Court has politicized the court and could lose its credibility as guardian and interpreter of the Constitution.

Taking the case also delegitimizes the Senate confirmation hearings and makes liars of the Justices that are confirmed on the court. During his confirmation to the Supreme Court, Brett Kavanaugh convinced Sen. Susan Collins that he thought a woman’s right to an abortion was settled law calling the court cases affirming it “precedent on precedent” that could not be casually overturned. Anther judge Amy Coney Barrett told senators during her Senate confirmation hearing that- laws could not be undone simply by personal beliefs, including her own. “It’s not the law of Amy.”

Now that they are appointed Justices, with lifetime jobs, and enjoying the life of luxury, power and prestige, at tax payers’ expense, they seem willing to use their religious indoctrination as a hammer on women’s right to abortion.  These religious conservative Justices and their conservative followers have become the Taliban of the US.  Justices Kavanaugh and Barrett have been willing to aggressively deploy religious liberty arguments to constrain anti-COVID-19 measures, and their line of questioning indicates that they will do the same in this case.

Barrett pursued a line of inquiry premised on the ability of women to relinquish their infants for adoption soon after childbirth. Saying, “Didn’t the existence of adoption options, including “safe-haven laws,” relieve women of the “obligations of motherhood that flow from pregnancy” and thus “take care of that problem”?  Barrett fails to understand that religious doctrine makes adoption or abortion shameful for women.  

Most religious girls in their teens’ feel guilty and ashamed for having premarital sex and are in denial for months about the pregnancy because of the shame associated with pregnancy outside of marriage.  Some don’t even know they are pregnant because they were seduced by a relative, or a friend of the family, or raped by a stranger.  I’m surprised that Barrett does not acknowledge that women do not just carry a baby for nine months, give birth and then hand it over to a complete stranger

Justice Kavanaugh, proving he is a pathological liar, indicated he would be open to overturning “settled law,” including Roe v. Wade, citing a long list of past Supreme Court cases that had been ruled against precedent, arguing that the Constitution was “silent and therefore neutral” on the issue of abortion.  This argument of neutrality implies that women are baby ovens and disregards their intellect and moral agency to make good and right decisions concerning their health and their future.

Abortion in Canada is technically legal at all stages of pregnancy, regardless of the reason, and is publicly funded as a medical procedure under the combined effects of the federal Canada Health Act and provincial health-care systems.  And, most countries have adopted a more nuanced approach – abortion may be legal in cases in which the pregnancy is the result of rape, incest, or if the fetus has a noticeable developmental impairment, or the mother’s health is in jeopardy.  In fact, there are only 24 countries in the world where abortion is illegal.

Each year in the United States, about 51,000 American children are placed for adoption.  There are 102,000 children in the U.S. foster care system waiting to be adopted and 400,000 experience foster care each year.  Obviously, adoption cannot resolve the problem, and since conservatives do not want Universal Health Care for Americans, and the 1976 “Hyde Amendment” banning federal money for abortion, put abortion out of reach of poor people. It makes one wonder about a deeper motive.

Foster care first came to the US as an extension of the 1562 British Poor Law which allowed poor children to serve as indentured servants.  Is this the reason why conservatives promote adoption?  

The more than 400,000 children in foster care in the United States range in age from infants to 21 years old.   Studies show that foster care is bad for their health: they are more likely to experience learning disabilities, developmental delays, depression, anxiety, behavioral issues, asthma, obesity, as well as hearing, vision and speech impairments.  Are conservatives so addicted to free labor that they want to perpetuate this indentureship program?

Ever since the Bill of Rights was ratified, Americans have enjoyed religious freedom. America’s “Taliban” seem to think that their Christian indoctrination is the only solution.  Not having an abortion is rooted in religion, yet having a baby when you are not financially or mentally prepared to have one is not right, it also presents a paradox for the woman that combines sexual pleasure with shame.

One of the women who attended the hearings opined: “Abortion is personal, and old men who are incapable of sexual activity seem to be obsessed with controlling women’s vagina’s, they should keep out of our personal lives and concentrate on the issues that will keep us safe and healthy, having an abortion is my decision not theirs.”

Studies have shown that women denied access to abortion are more likely to descend into poverty as a result of the added financial burden of caring for an additional child.   The World Health Organization (WHO) data shows that the legality of abortion across the world actually has little to no effect on abortion rates. Legal or not, abortions can, will, and do take place.

The Supreme Court needs to reaffirm Roe. Brent Kavanaugh’s position that the abortion debate is “hard,” and perhaps the court should leave it to the states to decide is unacceptable.  Republican controlled states have so-called trigger laws that will make abortion illegal, also it will be further politicized and intensify the country’s cultural wars at a time when democracy itself is fragile. 

(Trinidad-born Carlton Joseph who lives in Washington DC, is a close observer of political developments in the United States.)