Misogyny, Hypocrisy, Originalism and Roe v. Wade

If there is one indisputable conclusion to be drawn from the leaked initial draft majority opinion declaring Roe v. Wade unconstitutional, it is that the U.S. Supreme Court has become an odious misogynistic institution. The preponderance of justices — all “conservative” — consider women unequal in the eyes of the law, subject to violations of liberty and constraints on self-determination that no male will ever be forced to suffer. In fact, these fundamentalist judges, even the lone woman among them, are considered by many to be loathsome, patriarchal terrorists, in effect representatives of an American Taliban that has taken over the Republican Party.

The draft’s author, Associate Justice Samuel Alito, wrote that the “Constitution makes no mention of abortion,” which he describes as “a profound moral issue.” Roe v. Wade, therefore, cannot guarantee constitutional protections to rights and practices that the founders did not intend to protect. The Supreme Court must “heed the Constitution,” he wrote, “and return the issue of abortion to the people’s elected representatives” as stipulated in the Tenth — or “state’s rights” — Amendment. It reads “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

What makes this draft opinion all the more repugnant is that Alito and the Court’s conservative majority are hiding their utter contempt for women behind an absurd, hypocritical and self-contradictory legal philosophy known as “originalism.” Its major operating principle is that justices can only judge the constitutionality of a law by, in effect, comparing it with what they imagine the founders originally meant when they wrote the Constitution in the spring and summer of 1787. In English departments all over the country this critical approach is debunked as the “intentional fallacy.” It’s impossible to establish as a fact what authors intend to say beyond the words they use. When you conjure intended, unstated meanings, you are meandering into the realm of creative thinking and produce mere opinion that is vulnerable to refutation by any other opinion. This is hardly a rational way to protect the sacred goal of the Constitution written in stone on a lintel of the Supreme Court building: “Equal Justice Under Law.”

Originalism is opposed by justices who view the Constitution as a “living” document, a body of law that is evolving to meet the challenges and specific social needs of an ever-changing world. This view can be referred to as “modernism.” Modernist judges make no pretenses about being able to read the minds of the founders or fathom their unwritten intentions.

Interpreting intention always leads to fallacy. It’s doubly fallacious to infer the meaning of an omission of a concept that isn’t even mentioned, such as abortion. Does it make any sense, for instance, to say that women do not exist as constitutional realities because the word “woman” does not appear in the constitution? Of course not. Even the 19^th Amendment, prohibiting the denial or abridgment of voting rights “on account of sex,” doesn’t mention the word “woman”

except in headings added later.

Given “originalism,” the court’s conservative majority could declare that women have only the right to vote and are unprotected by the rest of the Constitution because they are not mentioned in it. They could conceivable even apply the provisions of the Tenth Amendment and require the states to verify the constitutional validity of women as citizens.

If the Supreme Court actually does overturn Roe v. Wade when it reconvenes in October, it means nothing less than it believes a woman does not have the constitutional right to manage her life and physical health without governmental interference, coercion and shaming. It means the Court considers a pregnant woman as chattel of the state. In short, an American woman, in the conservative view, is not a fully enfranchised citizen.

In fact, conservatives consider that the well-being of an actual human person — who is a woman — is of less legal and moral importance than that of a potential person, a fetus whose exact condition of life and personhood in our culture is still a matter of unresolvable controversy and conjecture. Alito writes, “Americans hold sharply conflicting views” about abortion. But a Pew Research Center poll shows that the majority of us, some 61%, say that “abortion should be legal in all or most cases.” The Court’s majority conservative opinion represents a minority cultural and political view of the nation as a whole.

Preferring the potential to the actual is like saying that today is less important than tomorrow; the real takes a backseat to the possible; that it is rational to mistake the possible for the probable. It’s all a sickening and dizzying swirl of illogic designed to hide a patriarchal hatred and belittlement of women.

Roe v. Wade was decided by the Supreme Court in 1973. It’s been the law of the land for almost 50 years. It prohibits states from banning abortion after the first trimester. New Mexico banned abortion in 1969 except in cases of rape or incest. But Roe v. Wade made the ban unenforceable. The abortion ban was repealed in 2021.

In 1965, in Griswold v. Connecticut, the Supreme Court ruled in favor of the Executive Director of the Planned Parenthood League of Connecticut, and its medical director, by overturning their conviction of breaking state law by giving married couples information and medical advice on how to prevent conception and prescribing contraceptive devices. The court ruled, giving precedent for Roe v. Wade almost a decade later, that the Connecticut statute violated the rights of marital privacy, which is protected by a “penumbra of specific guarantees of the Bill of Rights.”

Justice William O. Douglas wrote the opinion of the Court on Griswold. He cited earlier Supreme Court cases in which the “specific guarantees in the Bill of Rights … create zones of privacy.” Privacy is inferred in the First Amendment’s right to assembly, the Third Amendment’s prohibition against quartering soldiers in a person’s home without their consent, the Fourth Amendment guaranteeing “the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures,” the Fifth Amendment’s anti-self-incrimination clause, which enables the citizen to create “a zone of privacy that government may not force him to surrender to his detriment.” And, finally, Douglas argued that in the Ninth Amendment, which declares that “the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people,” privacy has its ultimate protection.

When Roe v. Wade was decided in 1973, Griswold was in the minds of the 7 Justices who made up the majority. However, Justice Potter Stewart who authored the majority opinion argued that the right of privacy was also rooted in the Due Process Clause of the Fourteenth Amendment. The Fourteenth Amendment is direct and emphatic. It says that all people, born here or naturalized, are citizens of the United States. No State, therefore, can make or enforce any law “which shall abridge the privileges or immunities of citizens” without “due process of law; nor deny to any person within its jurisdiction equal protection under the law.” Banning abortion is gender-specific, and therefore inherently unequal and prejudicial.

“Originalist” Supreme Court Justices argue that if the word privacy isn’t in the Constitution, which it is not, then it cannot be a right to be protected by the Constitution. But originalism here has a self-contradictory and hypocritical application: Privacy isn’t mentioned, so it isn’t recognized. Abortion isn’t mentioned so it isn’t protected. Women aren’t mentioned, but they are inferred to be humans, though of an inferior status to men, whose reproductive systems are not the object of legal tampering and intrusion. One could go a step farther and note that automatic weapons of any kind are not mentioned in the Constitution either, and should not be protected by the Second Amendment on the grounds of their omission. An originalist, keeping strictly to his view, would have to say that the only arms that a person has a right to bear would be those used in 1787, and even they aren’t directly mentioned. Originalists seem to be arguing that the inference of all kinds of modern arms being protected under the Second Amendment is plausible and logical to them, but that anyone else’s contradictory inferences are not. This is the mark of the deepest and most shameful hypocrisy.

In 2019, the Center for Disease Control and Prevention (CDC) calculated that 625,346 women had an induced abortion that year. Overturning Roe v. Wade, it’s clear, will cause untold economic, psychological and emotional damage to hundreds of thousands women and their families. And given a new Texas anti-abortion law, there’s a good chance that miscarriages, or involuntary abortions, could become legally confused with voluntary abortions and not be treated with all the medical and palliative care they deserve. Such care is often identical to that provided for induced abortions. As some 20 to 30 percent of all pregnancies end in miscarriage, the idiocy and misogyny of some anti-abortion legislation could be catastrophic in the lives of millions of Americans in the future.

If Roe v. Wade is stricken down, and abortion laws are left up to state legislatures, the upshot would be that every state election in every state in the union would have abortion as a tormenting agenda for years and years to come. It would always be a matter of the GOP trying to scam and scheme the victory of anti-abortion fanatics who, when they lose, refuse to accept the defeat with endless accusations of voter fraud and stolen elections. If that doesn’t galvanize women, feminist men and the American left into all-out, effective political action then nothing on this earth can.

*Nullius in verba: take nobody’s word for it

(Image derived from photo by Larissa Puro)