Author, Lecturer, Ethicist

Federalists, Dystopians, and Extreme Nausea

June 28, 2022  /  Kurt F. Stone

Truth to tell, Friday’s 5-4* Supreme Court decision in Dobbs v. Jackson Women’s Health Organization, a case centered on a Mississippi law that bars most abortions after 15 weeks of pregnancy, didn’t come as that much of a surprise. Movement conservatives, including the Christian Right, the Federalist Society and their billionaire backers, have been pumping time, effort, energy and endless shekels into reversing Roe v. Wade for more than 40 years. Friday’s ruling has automatically jump started so-called “trigger laws” in 13 states as well as putting fear, loathing and extreme nausea into the minds, hearts and kishkes of an overwhelming majority of the American public. (* It should be noted that Chief Justice John Roberts did not join the majority, writing in a concurring opinion that he would not have overturned Roe, but instead would have only uphold Mississippi's law banning abortions after 15 weeks.)  Despite writing that Roe had been fatally flawed when decided back in 1973, Justice Samuel Alito tried to paper over the decision by stating that it was not intended to ban all abortions in the United States; merely to put the decision back into the hands of the individual states.  Can you say “disingenuous?” 

“Trigger laws” would effectively ban abortions almost immediately after a decision from the Supreme Court to overturn Roe v. Wade.  These states include Idaho, North Dakota, South Dakota, Utah, Wyoming, Missouri, Arkansas, Oklahoma, Louisiana, Mississippi, Texas, Kentucky and Alabama.  There are an additional 9 states which have already banned abortions: Wisconsin, Michigan, West Virginia, Mississippi, Alabama, Arizona, Texas, Oklahoma, and Arkansas.  In an interview on Face the Nation, South Dakota Governor Kristi Noem defended her state’s trigger law, rationalizing that in cases of rape and/or incest she does not believe one tragedy is "a reason to have another tragedy occur."  Governor Noem said her state will now work to bolster resources for women who will now have to carry their pregnancies to term, including with more mental health counseling and family services.  "I would prefer that we continue to make sure we go forward and that we're putting resources in front of these women and walking alongside them, getting them the health care, the care, the mental health counseling and services that they should need to make sure that we can continue to support them and build stronger families far into the future as well," she said, adding, "The Supreme Court did its job: it fixed a wrong decision it made many years ago and returned this power back to the states, which is how the Constitution and our Founders intended it."  It should be noted that Governor Noem has made more than a handful of comments that she’s seriously considering making a White House bid in 2024. . .

For the first 15 years after Roe guaranteed women the legal right to control their own bodily destiny, Republicans were as likely as Democrats to support an absolute right to legal abortion, and sometimes even more so. But 2010 swept in a different breed of Republican, powered by Tea Party supporters, who locked in a new conservatism. Going into the 2010 midterm elections, Democrats controlled 27 state legislatures going in, and ended up with 16; Republicans started with 14 and ended up controlling 25. Republicans swept not only the South but Democratic strongholds in the Midwest, picking up more seats nationwide than either party had in four decades. By the time the votes had been counted, they held their biggest margin since the Great Depression. From that point on, Republican-controlled state legislatures began passing more and more restrictive laws which began the inexorable path toward the total dismantling of Roe v. Wade. Not that all the Republican state legislators were saturated with Biblical fervor. They did, in many cases, become increasingly more pro-life in order to grow their majorities and assure greater funding from well-heeled (and largely anonymous) billionaire backers.  This funding issue is crucial; were it not for the Court’s egregious 5-4 Citizens United v. FEC decision back in 2010, which eliminated the prohibition on PACS (“political action committees”) and corporations making unfettered independent expenditures, it is likely that Roe v. Wade would still be settled law today. 

Now mind you, Dobbs (the case which overturned Roe) wasn’t the only terrible ruling from the high court this past week.  Just the day before ruling that women no longer had any say in their bodily destinies, the court struck down a New York gun law enacted more than a century ago that restricts carrying a concealed handgun outside the home. The opinion changes the framework that lower courts will use to analyze other gun restrictions, which could include proposals currently before Congress if they eventually become law.  According to Justice Clarence Thomas, courts are required to "assess whether modern firearms regulations are consistent with the Second Amendment's text and historical understanding,"   

For instance, Thomas wrote, if a gun law is addressing a societal problem that also existed in the 18th century, it is evidence that the modern law is unconstitutional if there was no similar regulation then. Likewise, he said, if that societal problem was historically addressed using a type of regulation different than the one now before a court, this is also evidence that the modern law is unconstitutional.

"When confronting such present-day firearm regulations, this historical inquiry that courts must conduct will often involve reasoning by analogy—a commonplace task for any lawyer or judge. Like all analogical reasoning, determining whether a historical regulation is a proper analogue for a distinctly modern firearm regulation requires a determination of whether the two regulations are 'relevantly similar,'" Thomas wrote.  Thursday's ruling means that for a court to find any type of gun law constitutional, it will have to be consistent with how firearms were regulated historically.  This means states and localities will run into legal trouble whenever they try to enact a gun law that does not have a historical parallel, particularly if the problem the law is trying to address is a problem that arguably has existed for generations.  

In other words, just as with the Dobbs decision, this one invites us to travel back into the past . . . to willfully ignore past decisions of the court.  To a huge extent, this is the work of the  Federalist Society, which wants nothing so much as to return to an America in which men rule over women, states have clear control of the law, black’s and other minorities legal rights take a backseat to those of White Christians, and the frontier is once again, just outside our front doors.

During times like these, my reading habits change.  To get away from all the angst, worry and bile, I tend read as much P.G. Wodehouse as time permits.  (For those not familiar with him, Pelham Grenville Wodehouse, KBE [1881-1975] was one of the funniest, most inane British writers of all time.  He is perhaps best known and most beloved for his series of novels starring Bertie Wooster (one of the dotty “idle rich”) and his sagacious valet Jeeves. My all-time favorite, by the way, is Ring For Jeeves). For more serious, mind-numbing fiction, I find myself turning (or returning) to such classic dystopian novels as:

Dystopia is an imagined community or society that is dehumanizing and frightening. “Dystopia” is the bipolar opposite of a utopia, which is a perfect society. The novels I have been rereading, most notably Lewis’ It Can’t Happen Here, and Atwood’s The Handmaid’s Tale, take us into an American society/political culture in which democratic freedoms have been wrenchingly upended by brutal autocrats and hideous dictators. What makes these novels so compelling is that no matter how long ago they were written or published, they all seem to be talking about today. The one drawback in most of them is that they offer no solutions to the problems they all predict . . . short of moving away to another country.

                          Wedding photo of Clarence and Ginni Lamp Thomas in 1987

Although by no means a novelist, Supreme Court Justice Clarence Thomas is a world-class dystopian.  In his separate, concurring opinion in last Friday’s Dobbs decision, Thomas wrote that this was undoubtedly “an erroneous decision.”  Thomas went on to write that the Court should “reconsider” such previous rulings as those that protect contraception access (Griswold v. Connecticut, 1965), same-sex relationships (Lawrence v. Texas. 2003) and same-sex marriages (Obergefell v. Hodges,  2015).  Not surprisingly, nowhere did Mr.  Justice Thomas mention the court’s unanimous 1967 decision (Loving v. Virginia) decision which made inter-racial marriages legal.  At best, Thomas’s omission could be considered a case of inconsistency; at worst, utter hypocrisy.  But then again, hypocrisy and inconsistency have long been key ingredients in both bare-knuckle politics and dystopian literature.  

For all those who have been so vociferously in favor of over-turning Roe v. Wade, one has to wonder whether they are going to do anything about assisting all these newborns (even those who are the product of rape and incest) with food, housing, medical care and education, or just leave them floating in the breeze.  And do all those ultra-conservative cretins who have hopped aboard the “Replacement Theory” bandwagon understand that by outlawing abortions - which will most directly affect non-whites and the poor - will greatly increase the minority population of the United States . . . thus making their supposedly “worst nightmare” a far greater reality?  Not only are they both inconsistent and hypocritical; they are immoral. 

As mentioned above, dystopian novels rarely provide suggestions for remediation . . .  short of emigration. Not being a dystopian writer, permit me to conclude with a  couple of suggestions:

  1. Increase the number of Supreme Court Justices from 9 to 13 . . .  the number of Federal Judicial Circuits there are in the U.S.A.

  2. Elect a staunchly Democratic Congress which will get rid of the filibuster and enact a bill which codifies abortion as a federal right.

  3. Start the process of overturning the Citizens United  ruling. 

  4. Make sure that Roe v. Wade is on every ballot in every state and district in 2022.

Never give up hope!  This land belongs to the majority . . . 

Copyright© 2022 Kurt F.  Stone

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