Stop Religious Tyranny!

 On Monday of this week, a preliminary Supreme Court decision on Roe v Wade was leaked. The firestorm from this preliminary decision has done nothing but intensify ever since. While Chief Justice Roberts and Republicans want all the attention focused on the leak and the leaker (who remains unknown at this writing), the real story is that for the first time, SCOTUS wants to scuttle completely a Constitutional right. While Roberts is correct in stating that the leak is “absolutely appalling”, the 98-page preliminary decision written by Justice Samuel Alito is beyond absolutely appalling. When decided law is overturned and rights removed from a group of people, the reason had better be a good one. Alito’s draft doesn’t meet that standard at all. It is pure sophistry, written to fool those who don’t understand history and those who will not make that effort to understand history.

Alito wants to make the Roe decision invalid because he writes that the 14th Amendment (under the due process clause of which a right to privacy was found to exist) must be applied in the context of the time the 14th Amendment was written (1868). The legal road Alito follows is grounded in state statutes of 1868 but ignores the much longer common law that undergirded the legal approach to abortion from at least the 17th century. Alito is, historically speaking, just plain wrong.

The American Historical Association (AHA) submitted an amicus curiae brief to SCOTUS in September 2021. In that brief, the professional historians completely debunked what Alito submitted in the grossly flawed decision. There is a link to a pdf of the amicus brief in the link I provided above to the AHA. I would urge you to read it. The punitive state laws that arose in the peri-Civil War-era regarding abortion were driven by a Boston physician named Horatio Storer. Storer was an opponent of abortion who is hailed by the anti-choice movement for his work. Storer especially opposed criminal abortion and enlisted the American Medical Association (AMA) to pressure state legislatures to create punitive laws. The AMA Committee on Criminal Abortion reported to the association at its 1859 meeting. This quote is from its report and is taken from the mini-bio in Wikipedia noted above:

If we have proved the existence of fetal life before quickening has taken place or can take place, and by all analogy and a close and conclusive process of induction, its commencement at the very beginning, at conception itself, we are compelled to believe unjustifiable abortion always a crime.

And now words fail. Of the mother, by consent or by her own hand, imbrued with her infant's blood; of the equally guilty father, who counsels or allows the crime; of the wretches, who by their wholesale murders far out-Herod Burke and Hare; of the public sentiment which palliates, pardons, and would even praise this, so common, violation of all law, human and divine, of all instinct, of all reason, all pity, all mercy, all love,—we leave those to speak who can.

The AHA amicus brief however includes what is a more thorough and complete look into the history of abortion in America than Alito does. First, the AHA brief notes that Storer’s goals were not entirely beneficent. As the brief notes,

Mixed motives drove these physicians’ zeal, including consternation over immigrant Catholics out-reproducing native white Protestants, and resentment of married women apparently shunning their proper roles as mothers by choosing abortion.

In other words, Storer and the AMA were heavily influenced by nativism, religion, and misogyny – all ignoble motives. Storer and the AMA’s approach was not entirely successful either, as the final paragraph of the AHA amicus brief makes clear:

In sum, despite coordinated efforts to undermine the common-law reasoning embedded in American history and tradition, the physicians’ campaign did not succeed in displacing longstanding common-law principles. Many state statutes retained the common-law approach. Even where states prohibited abortion, common-law reasoning resonated in public opinion, deeply affecting the practice of abortion. These historical findings confirm that Roe’s central conclusion was correct: American history and traditions from the founding to the post-Civil War years included a woman’s ability to make decisions regarding abortion, as far as allowed by the common law. 

But there is much more evil in Alito’s screed because all of the advances in defining rights in the United States from the mid-20th century to the present really hinge on the 14th Amendment. I agree with many others that what the current conservative majority has in mind is something way beyond abortion rights; it is the undermining of rights Americans have fought for and won with a lot of pain, expense, and work. This cartoon from today’s Washington Post sums it up:

We are at a crisis point in the struggle for human rights in America. A minority group of white evangelical Christians means to take us back to a time when women had no rights and were chattel to men (if you think I exaggerate, here is a Tweet from a RWNJ on repeal of the 19th Amendment – the one that finally gave women the vote in 1920), when there was no right to same-sex marriage, when sodomy was a criminal offense, when interracial marriage was illegal (that might get Clarence and Ginni’s attention), when segregation in schools was allowed. 

Jennifer Rubin nailed it. So long as we talk about “culture wars” as though we were talking about hemlines, no one will take this seriously. This is religious tyranny writ large in 21st century America. My advice for those who value this country (a majority that does not include the MAGA crowd) is VOTE IN NOVEMBER! Stay angry. Stay informed. And remember we do this not only for ourselves but for others. I do not want my grandsons growing up in a theocratic dictatorship.