October 10, 2011

What if we didn't have Roe versus Wade?

Criticisms of Barack Obama seem to come in two distinct styles. From the Right, particularly the radio voices which provide the Loony Bin Conservatives with their Weltanschauung, are the usual totally unhinged, clinically insane descriptions of Obama as a Hitlerian Socialist, whatever that is, bent on forcing collectivizaton of the people, herding everyone into FEMA Death Camps, and giving over what little the federal government has left to a cabal of Wall Street Bankers who go to dinner parties with him in Manhattan. Weirdly enough, this is not in any sense an exaggeration of the tone.

From the liberal side of politics, the criticisms focus on Obama's relentless double-crossing of the people who elected him; his abysmal record of refusing to take any kind of prosecutorial action against the thieves and grifters of those same people in his dinner parties at Robert, the trendy Manhattan eatery where he raises money; his free pass to the war criminals and torturers of the previous administration; and his worse-than-Bush record on civil liberties and transparency in government. One could go on and point out his doubling-down on the most pointless and absurd war in American history, the invasion of Afghanistan and our residence there for the past ten years to avenge attacks emanating from Egypt and the Arabian Peninsula - but it all just becomes words.

The question is what to do about it. Despite the increasingly faint-hearted "support" Obama draws from die-hard Democratic partisans, I think he's been a colossal disappointment, almost surreal, movie-like, "Manchurian Candidate" in scope, but there he still is, and he'll be on the ticket next year for the Democrats, matched up against either a guy who believes in a fable about Jesus Christ visiting Native Americans in the Missouri area (according to Joseph Smith's reading of gibberish through the portal of a Magic Box), or a C+ student from Texas A&M who makes George W. Bush look like Charles Van Doren.

So then what? One liberal trope an apostate is immediately hit with, of course, is always the same: what happens to the "composition" of the Supreme Court if we put someone like Rick Perry in the White House? My first reaction is that we'll have much bigger problems than the composition of the Supreme Court in that bizarre eventuality, but the composition of the Supreme Court will suffer yet more, to the extent that a court which agrees that corporations should be allowed to control political elections entirely can get any worse. But certainly one casualty of a court which finally tips over to the definite 5-4 or 6-3 Cro-Magnon majority necessary to reverse Roe vs. Wade is that a woman's right to choose what to do with a pregnancy during the first two trimesters may very well lose its federal guarantee.

I wrote a blog a while back on the subject of Wade reversal, and pointed out that if a future Supreme Court decision decided that the "zone of privacy" reasoning which supports Roe vs. Wade was a bunch of liberal nonsense, that such a ruling would not mean that abortion would automatically be illegal, nationwide, the following day. Far from it. Such a decision would mean that the states were not prevented from enacting laws to limit or eliminate abortion, but it would not compel the states to criminalize abortion. The distinction is very important.

I have long thought that the abortion decision rested on a very slender reed, Constitutionally speaking. Abortion per se is certainly not mentioned in the Constitution (one would not expect it to be), but more fundamentally the "zone of privacy" implied in the Ninth Amendment in the Bill or Rights is also a legal concoction, and it is on this construct that Roe vs. Wade is built. The Ninth Amendment only says,

"The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."

Did the people retain the right of abortion when the Constitution was enacted? I don't want to sound like Antonin Scalia (ever), but it is a stretch. Of course, did the people retain the right of back-door sex and other fun bedroom activities all protected as well by the Ninth Amendment's "zone of privacy" (Griswold vs. Connecticut, 1965)? It all depends on whose ox is being gored, or whose....never mind.

Further, Justice Harry Blackmun's neat and tidy analysis based on trimesters and viability has also been superseded by the current state of gestational science. Be that as it may: provided the Supreme Court simply left it at that, reversing Roe vs. Wade on its own terms, and the Clowns of Capitol Hill did not rush into the vacuum thus created and attempt to pass a federal criminal law banning abortion, then those states favorably disposed to choice issues would provide abortions; and those states which are inclined to believe that the Earth is only 6,000 years old and will only be around a little while longer until things heat up in Israel can do what they want at last, and we all know what that is. Perhaps a happier country all the way around, for as long as it lasts (the country, I mean). Indeed, abortion has been such a polarizing issue (like forever) in this country, that a state-by-state decision through local plebiscites might accomplish both the goal of local self-determination and a goad to the realization among the states that, you know, we just really don't have that much in common anymore, but we'll always cherish our initial misconceptions about each other. What a relief, however, if the issue of court-packing could finally stop distorting national elections, and we could all blissfully accept that we were throwing away our vote because we just can't stand voting for someone we don't really enthusiastically support simply because the other guy will appoint another Luddite to the high bench and disrupt the delicate Roe balance.

Looked at that way, maybe the Ransom Note approach to presidential elections could be altered somewhat. Forget the Supreme Court; they've certainly forgotten you, my fellow American commoners. If you want to vote for Roseanne Barr, who's running for president (of both the USA and Israel, simultaneously) on a platform of replacing fiat currency with a barter system based on vegetables, restoration of the guillotine as punishment for the obscenely rich, and a return to an agrarian economy in America, then you can do so with a fairly clear conscience, simply remembering that if you want to have liberal rights in the state where you live, you'll have to work for them at that level. Which, now that you mention it, is where there's a chance you could actually affect the outcome.

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