Modern Chimera

The Times’ multiple-Pulitzer Prize-winning cartoonist Paul Conrad; cartoon appeared in the Nov. 21, 1988 editions.1 

Politicians in Mississippi, Sotomayor commented, (whilst leaving it unsaid that these are far right Republicans), have devised new legislation to ban abortions after an average of just 15 weeks of pregnancy. These politicians brazenly admit that their bills are targeted specifically to the three newest justices on the supreme court (all appointed by Trump, though Sotamayor left that unspoken too).

Sotomayor is wise to be concerned about the reputation of the court: A Quinnipiac University poll last month found that 61 percent of Americans said the Supreme Court was primarily motivated by politics, while 32 percent said it was primarily motivated by the law. Three years ago, those corresponding numbers were 50 and 42 percent. A Gallup poll in September found that only 40 percent of Americans approved of the job the court was doing. This is the lowest support since 2000, when Gallup first asked the question.

For Stephen Vladeck, a professor of constitutional law at the University of Texas at Austin, the takeaway of this week’s hearing was not how many justices were preoccupied with the reputational damage facing an increasingly politicised court, but how few. “To me, the single most distressing feature of Justice Sotomayor’s arguments was how little anyone else seemed to care,” he told the Guardian.

The perception of insouciance towards the integrity of the nation’s highest court among the six conservative justices now in the majority is breathtaking. Before the recent supercharged hearing, several of those justices had bent over backwards to try to convince the American people that they are neutral servants of the Constitution. Neil Gorsuch, Trump’s first of three appointments, insisted in September 2019 that it was “rubbish” to suggest that justices were “like politicians with robes”.

During his confirmation process in 2018, Kavanaugh went to extremes to highlight his respect for the decisions made by his predecessors on the court, and his fealty to the legal doctrine known as stare decisis, which requires justices to honor past rulings in all but exceptional cases. He assured senators who were worried about his stance on abortion that he saw Roe v Wade as “settled law”.

In fact, he went even further in his conversations with Susan Collins, the more moderate Republican senator from Maine on whose vote Kavanaugh depended. When she announced her decision to back him for the Supreme Court, she revealed what he had said to her during private conversations: “There has been considerable … concern that Judge Kavanaugh would seek to overturn Roe v. Wade,” she explained. “Protecting this right is important to me. As Judge Kavanaugh asserted to me, a long- established precedent is not something to be trimmed, narrowed, discarded or overlooked.”

However, when it was Kavanaugh’s turn to speak in this week’s debate, he read out a long list of Supreme Court cases in which prior precedents had been overturned. In fact, he left observers with the unmistakable impression that he was prepared to do precisely what he promised Collins and her fellow senators that he would not do – trim, narrow, discard and overlook a pillar of constitutional law.

Amy Coney Barrett, the third of Trump’s triumvirate of appointees, told an audience in Kentucky that the Supreme Court was not “comprised of a bunch of partisan hacks.” Of course, she was speaking at the McConnell Center at the University of Louisville, and was introduced at the event by the politician after whom the venue is named—Mitch McConnell, the top Republican in the US Senate.

We all remember McConnell in this context as the one responsible for some devious machinations in blocking Merrick Garland’s confirmation to the court after Justice Anthony Scalia died in February 2016 on grounds that “it was in an election year.” (There are no laws regarding confirming justices specifically in an election year.) Then he rushed through Barrett’s confirmation after justice Ruth Bader Ginsburg died in the September of an election year.

Eight hours after Ginsburg’s death was announced, Republican senator Lindsey Graham had announced on Twitter that Republicans would move forward to fill her seat, a particularly sleazy move, befitting of the man who made it. For many, this appointment was particularly emotionally charged as Amy Coney Barret was understood as a poor choice to fit the liberal Ginsburg’s shoes: she had already been on the record as being anti-abortion, after all.

In the presidential “debate” in 2020, Trump, who had announced that he was going to appoint “pro-life justices,” railed against candidate Joe Biden regarding Barrett: “You don’t know her view on Roe v. Wade. You don’t know her view!” Trump insisted in response to Biden’s caution that the future of Roe was on the ballot that fall.

In 2006, Barrett attached her name to a list of “citizens of Michiana” who signed a right-to-life ad that appeared in the South Bend Tribune, which was sponsored by a group that opposes abortion. The ad—from the Saint Joseph County Right to Life—calls for putting “an end to the barbaric legacy of Roe v. Wade and restore laws that protect the lives of unborn children.” Ten years later, Barrett told an audience at Jacksonville University she believed that while Roe wouldn’t be overturned, access to abortion could eventually be limited. It looks like she wasn’t lying.

This was always McConnell’s endgame. He said so himself. He wanted “Republican justices.” In a conversation Fox News pundit Laura Ingraham had with Ted Cruz, a politician of passable intelligence who should be in disgrace for abandoning his state when it was in a crisis (amongst many other reasons), the rabid Ingrahm declared, the Supreme Court Justice must “do the right thing here, the constitutional thing” and overturn Roe v. Wade. She cited all the money they’ve raised for this purpose (Cruz, 2021).

The message is not subtle: After all this money that’s been spent getting “Republican justices” they’d better vote on the party line! And the sad thing is, that might just happen. At risk here is not necessarily the wholesale demolishment of Roe v. Wade, but the chance it will be kicked back to the states for them to eviscerate with bills like the popular “heartbeat bans.”

These laws ban an abortion after a “fetal heartbeat” has been detected, around week 15, although it can be earlier. This is before many women know they’re pregnant. It must be pointed out that the “fetal heartbeat” is a misnomer. A 15 week-old fetus doesn’t have a formed heart to beat. And it in no way indicates that a pregnancy would be viable to term.

“When I use a stethoscope to listen to an [adult] patient’s heart, the sound that I’m hearing is caused by the opening and closing of the cardiac valves,” says Dr. Nisha Verma, an OB-GYN who specializes in abortion care and works at the American College of Obstetricians and Gynecologists. “At six weeks of gestation, those valves don’t exist,” she explains.

“The flickering that we’re seeing on the ultrasound that early in the development of the pregnancy is actually electrical activity, and the sound that you ‘hear’ is actually manufactured by the ultrasound machine.”

Dr. Nisha Verma, OB-GYN

“What we’re really detecting is a grouping of cells that are initiating some electrical activity,” she explains. “In no way is this detecting a functional cardiovascular system or a functional heart”² (NPR, 2021).

Trump appointed three anti-abortion judges, and they are now poised to send control back to the individual states, 21 of which currently have trigger laws in place that would effectively ban abortions overnight were Roe v. Wade overturned.

A piece of trivia for you in case you didn’t know, the peppy, photogenic, “born-again ex-lesbian,” Norma McCorvey (Roe), recorded what she called a deathbed confession in which she admitted all that Church and being straight nonsense had been a giant act. At no point did she care about other women’s ability to access an abortion. She explained, “I was the big fish. I think it was a mutual thing. I took their money and they’d put me out in front of the cameras and tell me what to say. That’s what I’d say…. If a young woman wants to have an abortion, that’s no skin off my ass. That’s why they call it choice.”

Even Roe turned out to be pro-choice in the end. Pity we can’t hope the same for Amy Coney Barrett and her cohort of partisan hacks in robes. If you are wondering how this can be best summed up, perhaps this New Yorker cartoon fits:

The United Nations has asserted that abortion is a universal human right. Very few countries prohibit abortion altogether. America never looks outside her borders for inspiration or caution, and there are many social issues on which this country is especially regressive. Is lack of abortion legality and accessibility going to be one of them again?

Sources

[1] Los Angeles Times. (2021). https://www.latimes.com/opinion/la-xpm-2014-mar-25-la-ol-the-coat-hanger-symbol-of-dangerous-preroe-abortions-is-back-20140324-story.html
[2] NPR. (2021). https://www.npr.org/sections/health-shots/2021/09/02/1033727679/fetal-heartbeat-isnt-a-medical-term-but-its-still-used-in-laws-on-abortion#:~:text=%22When%20I%20use%20a%20stethoscope,cardiac%20valves%2C%22%20says%20Dr.&text=%22In%20no%20way%20is%20this,system%20or%20a%20functional%20heart.%22
[3] Cruz. (2021). https://www.cruz.senate.gov/newsroom/press-releases/sen-cruz-on-the-ingraham-angle-president-bidens-vaccine-mandates-are-illegal-theyre-unconstitutional-and-theyre-an-abuse-of-power
[4] Zoi Si, The New Yorker. (2021). https://www.newyorker.com/cartoons/daily-cartoon/friday-december-3rd-abortion-roe-v-wade.