The first thing I want to say in writing about the US Supreme Court’s decision Friday to strike down Roe is this: you still have the right to have an abortion. You still have the right to body autonomy. You still have the right to determine the course of your life according to your free will. And you still have the fundamental right to privacy. Those rights are still yours on account of those rights being inalienable.
The difference is that those rights are no longer entitled to protection by federal law. States are now authorized to regulate women’s bodies, unjustly influence the course of their lives and treat women, as a result of these unjust laws, as second-class citizens. The high court’s decision means that in effect no man in states that have chosen to outlaw abortion is legally obliged to respect a woman.
Defenders of the ruling say that because abortion is not in the Constitution, it’s rightful place, per the 10th Amendment, is in the states where residents can decide what’s good for themselves. That, however, is rooted in an old but orthodox interpretation of the 10th Amendment, as if “the people” meant residents of those states.
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It doesn’t.
Here’s the text in full. It’s pristine clear: “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.”
It doesn’t say “reserved to the states respectively, or to their people.”
It says “or to the people,” meaning the people of the United States.
The thinking behind the 10th Amendment was twofold. One, that the states are where most laws should be made. Two, that future generations would see things differently from the framers and would want to craft rights and liberties accordingly, using the powers framed by the Constitution and delegated to the people by it.
In other words, the Constitution should not be the last word. The last word goes to the majority of the people of the United States, who, according to most polling, favor legal abortion by wide margins.
Indeed, the literal last words of the 10th Amendment are “the people.” The people, meaning you, have the right to anything, really, as long as you can organize enough like-minded people to collectively demand it before pushing lawmakers in the direction of enactment.
This is why I say you still have a right to an abortion etc. A rogue court overturning nearly 50 years of rights changes none of that. The difference is about the law and the rights that are entitled to protection. It’s now up to the people, armed with their inalienable rights, to pressure the Congress to take back those protections.
Codify Roe
The next step is turning Roe into a statutory law, or codifying it.
Fortunately, a bill to that effect already exists. It’s called the Women's Health Protection Act. The House passed it in 2021 in keeping with a promise to protect Roe if the Democrats controlled the Congress.
Unfortunately, the bill has been languishing in the Senate since then, thanks to two conservative Democrats who are wedded to the idea that a rule – the filibuster, requiring 60 votes to pass legislation – reduces rancor in politics when in fact it produces rancor in politics.
The immediate focus should be, in the coming midterms, expanding by at least two the number of Senate Democrats for the purpose of circumventing Senators Joe Manchin and Kyrsten Sinema and their beloved rule. It takes a majority to change a Senate rule. Add two more to the 50 Democrats already there in order to change the rule.
Reactions by the broad left
I think most Democrats understand the results of the midterms are going to determine the fate of women in America. Hopefully, the conventional wisdom is right. Now that the Republicans have achieved their dream, they best get ready for a serious backlash.
But there are some on the left – progressives, mostly, not liberals – who have chosen to blame the Democrats for the fact that the Republicans have cut the standing and status of women in half.
I don’t know where this is coming from, but I suspect its roots are in Bernie Sanders’ failed bid for the Democratic Party’s nomination in 2016. Afterward, his supporters would blame Hillary Clinton for losing before blaming the Congressional Democrats for Donald Trump’s carnage, telling anyone who’d listen that Bernie woulda won.
The same is happening now.
I saw a tweet averring that the Democrats need a Bernie Sanders-style “scorched earth” approach to the Supreme Court. Another theme that’s developing rapidly: the Democrats have had 50 years to codify Roe yet their “aging leadership” is too busy “asking for money” to give “one good reason to vote” for the Democrats.
This wouldn’t be so bad if it were not for prominent voices on the left with large platforms on social media, amplifying their understandable disgruntlement with the Democrats far behind their understandable disgruntlement to the point of sandbagging a backlash that the Democrats will need if they hope to codify Roe.
Violence is bad
Among these progressives I’m hearing a kind of desperation verging on violence. Carlos Maza, who is normally sensible, said voting isn’t the solution to the evil we face: “Fascists literally do not care how hard you vote. They are not trying to win elections. Violence is the only language they understand, and it’s time we start speaking it.”
Actually, the fascists are trying to win elections. That’s why they work so hard to create legal conditions in which the Democrats can’t win.
Other than being wrong, Maza is dangerously naive. Who do you think would benefit from a shoot-out between progressive defenders of privacy and fascist champions of the authoritarian collective?
Not the good guys.
For the fascists, violence is a means and an end. Violence affirms their accusation that the left acts only in bad faith and seeks to harm. It would drive respectable white people – swing voters – into the arms of “the party of law and order,” even though “the party of law and order” is, as a matter of fact, the party of anarchy and chaos.
Unless we’re prepared to go to literal war and destroy the enemy – meaning kill them – there is no end to acting violently, much less a good one. On the one hand, you add to the anarchy and chaos that always benefits the enemy. On the other, you become the enemy.
The truth is plain to see.
Voting harder is the answer.
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