Anti-abortion sentiment on the nation’s highest court has a long tail. Hardwired into the American judicial system is the unquestioned authority of men to make laws victimizing women. It took 185 years for a president, a Republican at that, to appoint a woman, Sandra Day O’Connor, to the Supreme Court. Today there are 116 men who have served compared to a paltry 6 women.
Supreme Court misogyny extends back to 1927 when the denial of a woman’s right to control her reproductive capacity was first articulated by the unjustly celebrated civil rights icon, Justice Oliver Wendell Holmes. Writing for the majority in Buck v. Bell, Justice Holmes took just 6 words to impose compulsory sterilization on women at the whim of any state without redress — “Three generations of imbeciles are enough.” Eight of his fellow male jurists agreed. The grounds — “for the protection and health of the state.
The Justices in Dobbs v. Jackson Women’s Health Organization make a similar case — that states, not women or even the federal government, have the primary duty to “decide how abortion is to be regulated… The States may regulate abortion for legitimate reasons…”
Much blame, deservedly, has been heaped on the heads of the five justices who voted to overturn Roe. It’s not as if overturning Roe is a new idea more like a Republican crusade since Roe was decided in 1973. In response, Democrats have been their usual supine selves. With 88% of democratic voters identifying themselves as pro-choice, Democrats in Congress and the White House have failed to codify Roe (making it federal law), thereby giving five misogynist justices the opportunity of their lifetimes.
The road to the destruction of Roe started, ironically, in 2004, with the introduction of the Freedom of Choice Act [FOCA] designed to codify it — “it is the policy of the United States that every woman has the fundamental right to choose to bear a child; terminate a pregnancy prior to fetal viability or terminate a pregnancy after viability when necessary to protect her life or her health.” In 2021 the Women’s Health Protection Act [WHPA] was introduced in Congress. Both bills make the guarantees of Roe settled law, out of the reach of the Supreme Court. Eighteen years, two democratic presidents and one super majority in the Senate and House later, no codification of Roe has ever been a priority for the congressional democrats.
The record of two democratic presidents, Obama and Biden is similarly dismal. In 2008, questioned on the campaign trail “What would you do on the federal level to insure access to abortion? Obama —“First thing I’d do as president is sign the Freedom of Choice Act.” Shortly after winning, he quickly walked his campaign assurance back: “The Freedom of Choice Act is not my highest legislative priority.” He never raised the issue again.
That’s not all Obama didn’t do. In 2013 he invited Justice Ruth Bader Ginsburg to lunch at the White House. At the time she was 80 and a cancer patient. He hoped she would take the hint and retire. She didn’t and he made no further moves to change her mind. In 2016, Justice Scalia died shortly before the end of Obama’s second term. Although Senate Republicans stonewalled him from appointing a new justice, he still had the option of making a recess appointment (Article II, Section 2 U.S. Constitution) which would have kept his pick on the Court until 2017. Not wanting to make enemies of his Republican “friends,” he didn’t. In the end President Trump was able to appoint three abortion-hating justices.
In an eerie reprise of his boss’ perfidy, Biden performed the same dance less expertly but with the same result. On the campaign trail, “I would send immediately to the U.S. Congress a codification of Roe.” Relax folks, he didn’t mean it. Months into his presidency when the FOCA was still MIA, his press flack expelled the last fumes of the Biden smoke and mirrors promise. —”The president is committed to codifying Roe.” A shiny new bridge for sale to any soul who swallows that malarkey.
Making their joint betrayal more stinging, on May 2, a draft decision overturning Roe was leaked to Politico. Obama issued a 700-word statement decrying the decision hoping the public would forget that his inaction was a major contributor.
Biden, who also had the opportunity to try and resuscitate FOCA in Congress after the leaked draft went public, sat on his hands for six weeks until June 30, six days after its public unveiling. In full-dress indignation, he went charging onto the podium to deliver these ‘stirring’ words — “The one thing that has been destabilizing is the outrageous behavior of the Supreme Court of the United States in overturning Roe v. Wade.”
Democrats being democrats their latest move is to make overturning Roe a springboard to getting some momentum for the midterms. Vote for us and we still won’t do anything, but at least we’re not Republicans.
Nancy Pelosi, democratic Speaker of the House, is the queen of the hypocrites. On May 2, 2017, she announced that abortion was “fading” as a democratic issue. Turns out that was her excuse for funding and stumping for anti-choice candidates, like Sen. Bill Casey (who enacted Roe-killing legislation as Pennsylvania governor) and Rep. Henry Cuellar (only democrat to vote against the Women’s Health Protection Act, aka Freedom of Choice Act, in the House in 2021). To make the case for Cuellar, Pelosi had to oppose a pro-choice opponent. In Nancy’s book, an anti-choicer can still be a colleague and friend. Curious to know where she draws the line.
Get ready for it folks. On June 24 when the decision was announced, Nancy appeared to have an epiphany. “Today, the Republican-controlled Supreme Court has achieved the GOP’s dark and extreme goal of ripping away women’s right to make their own reproductive health decisions… “This cruel ruling is outrageous and heart-wrenching. But make no mistake: the rights of women and all Americans are on the ballot this November.” [from the desk of the House Speaker, 6/24/2022]. No, she doesn’t really care if young women have to carry unwanted fetuses. This development is a golden opportunity for the democrats to “seize on abortion as a midterm issue” [The Hill ].
In the “How could You department?” behold Bernie Sanders, who talks a good game but never strays far from the democratic message. In 2017, he joined the democrats’ country-wide tour misnamed “Come Together, Fight Together.” Who was he shilling for? None other than the democratic candidate for Omaha mayor, Heath Mello. The same Heath Mello who has a long and unpleasant career as a democrat anti-choicer. From co-authoring anti-choice legislation as a state legislator from 2009-2016, to sponsoring a 20-week abortion ban, and a law banning state insurance companies from covering abortions, to being the darling of the Nebraska Right to Life Organization. Here’s Bernie throwing his alleged principles under the bus — “If this fellow [Heath Mello] wins in Nebraska, that would [prove] that in a state like Nebraska a progressive Democrat can win, that will give hope to folks in other conservative states” [Wall Street Journal, 4/16/2017]
Unfortunately for Heath, Bernie’s fairy dust wasn’t up to the task. Heath Mello got torched by his Republican opponent.
Can anything be done? How about a time-tested American remedy — Nullification. In the 1830s, the Supreme Court ruled that Native American rights to the land given to them by federal treaty was sacrosanct. Andrew Jackson, one of the first but hardly the last American war criminal president, a major force in the ethnic cleansing of Native Americans, challenged the decision— “John Marshall [chief justice] has made his decision. Now let him enforce it.” He didn’t.
“Solutions” aside, let’s not forget that restoring the rights lost in Roe is only half the problem. The Hyde Amendment, a vicious piece of legislation kept alive by every Congress since 1975 must go as well. Too heavy a lift for the current crop of Dems? You betcha. Time for new blood not afraid to challenge the discredited authority of any branch of government. This may be the only sane reason to go to the polls.
To get the inside story of the Hyde Amendment and its millions of victims, check out What Happens if You’re Poor, Female and Black in the Richest Country in the World.
