No Surprise but Still Shocking
by Bill Lasarow
Any faint hope of the Supreme Court not being a political agent of the partisan right, of being honestly and objectively interested in the Constitution, evaporated in the September 1st shadow docket. As though prior actual non-shadowy rulings such as Bush v. Gore, Citizens United or Shelton County had not already established that fact. Texas Senate Bill 8 consists of two parts: first declaring abortion illegal after “detection of an unborn child’s heartbeat,” i.e. about six weeks; second, “authorizing a private civil right of action,” i.e. awarding a $10,000 bounty to self-declared vigilantes without threat of liability.
Until now both would have been laughed off of any court’s docket, whether in the shadows or the light of day, for its blatant unconstitutionality (as President Biden put it). The previous cases in which Roe v. Wade were narrowly upheld were relatively incremental, and arguably constitutional in concept. With the late Ruth Bader Ginsburg replaced by her ideological mirror image Amy Coney Barrett, all pretense has now been discarded; the dog has caught the car. After half a century of a chase that was always waiting for historical fortune to lend the issue five votes on the Supreme Court the moment has arrived, an event braced for by millions of Americans but never really expected right up until the day that it occurred. And certainly not in this manner.
Paula Rego, “Untitled No. 1,” 1998,
pastel on paper. Courtesy of Paula Rego.
Edward Kienholz, “The Illegal Operation,” 1962.
Collection of Los Angeles County Museum of Art.
In May the Court went out of its way to place a Mississippi challenge to Roe, Dobbs v. Jackson Women’s Health Organization, on the docket for the 2021/22 political season. Dobbs, in which the state of Mississippi decrees abortions to be illegal after 15 weeks, was widely regarded as the straw woman case to serve as the rational for striking down Roe. SB 8 proved easier for SCOTUS; all they had to do was step aside. No lengthy arguments to be heard at the Court, no June decision with the usual briefs and crescendo of public pronouncements. Suddenly, poof, gone with a shrug of their five collective shoulders (credit the Chief Justice for not making it six). Did they believe that the whole issue would just slink away?
Before I continue, first a brief refresher on this matter of how many weeks, a central provision of the original 1973 decision. It divided up a pregnancy into three trimesters of 12 weeks each. In the first trimester no fetus is viable (if you are not familiar with what a blastula is, please Google it), and the decision to abort is therefore left entirely up to the woman carrying the pregnancy. In the second trimester abortion cannot be outlawed, but it can be regulated to ensure the health of the mother. The legitimate area of controversy has always been the third trimester, during which a fetus can be viable. Roe permits states to limit or ban abortions, except when the health or life of the mother is at risk, during that period. The very earliest point at which a fetus has been known to survive is 22 weeks, although a more generally accepted week of viability is 26 weeks. Medical technology as it pertains to extending the viability of a fetus has improved incrementally over the past half century. There are inherent biological limits that will never go away.
Abortion Beyond the Court
Ending the right to an abortion — pre-viability — is far more than a legal matter. It must be considered through both moral and political frames. The weight of each is remarkably symmetrical, not least due to the ideological irony of big government deliberately seeking to deny a freedom openly exercised by millions of citizens. After all, a historically central tenant of conservative philosophy is that individual liberty precedes and, whenever possible, overrides the power of the state. Tempered conservatives recognize that the state has a legitimate interest in ensuring certain fundamental societal virtues that serve to protect the public’s health and welfare. Thus we ask food companies to suffer the cost of labeling and inspection in order for their products to avoid causing sickness and death. Auto manufacturers must install seatbelts to reduce the number of traffic fatalities. We are accustomed to sending our kids to school from ages 5 to 18, but keep in mind that basic rite of education is compulsory, not optional nor a system of convenience meant to free up the day for mom and dad. And on, and on.
The abortion issue, really since the original 7 to 2 decision in 1973, has revolved around a moral revulsion deeply felt by a minority of Americans whose religious conviction is that life begins at conception. In their moral absolutism they felt then and feel now that the state has a compelling interest in those lives from that starting point. Objectionable moral fallout, such as most commonly the mental and emotional well-being of many parents, but up to and including the death of some mothers, does not register because the potential life of the fetus is paramount.
The matter of fetal viability, be it 6 or 15 weeks (no fetus is viable that early in), is only important as another step towards establishing that belief as a universal principle, a means to an end, that end being the personhood of the unborn applying from the moment of conception. The implicit position, in other words, is that both this point of religious conviction and the now majority of the Court have staked out is that there IS no pre-viability. The desired outcome is a full return to the world pre-Rowe in all 50 states. The current Texas (and soon to come Mississippi) docket decision may mark the end of a legal right to abortion, but it clarifies the legislative intent of five Supreme Court political activists.
Barbara Kruger, “Untitled (Your Body is a Battleground),” 1989, photographic
silkscreen on vinyl, 112 x 112”. Courtesy of the Broad Museum.
At the same time, it is the unvarnished acceptance of the moral urgency of this that shapes the political agenda of the Republican Party, which is intended not to deliver new adherents but to shut off non-adherents from any opportunity to govern. To put it another way, this moral principle is to be a requirement of anyone aspiring to wield governing authority. The anti-abortion position has been for decades central to the Republican Party, and it is designed to bolster the emotionally felt moral convictions of its adherents. From that seed of moral absolutism has grown the will to gain political monopoly by any means necessary. It is the very exclusion of an alternative narrative that echoes the moral certitude that exists within the castle walls.
American law was conceived and has been broadly (but never universally) accepted as secular, not theocratic. The minority who would have it otherwise have waited half a century precisely for that reason — they have always been, and remain, a minority, and a steadily shrinking one. Not only does the view that life begins at conception fail to hold moral suasion over most Americans, the greater moral and emotional concern is for the life and well-being of the pregnant mother. During pregnancy her health, her mental stability, even her life may be at risk. She may have conceived due to an act of rape or incest, with the offending father suffering little or no consequence. The lesser trials of financial hardship, career derailment, etc. tend to be overlooked or dismissed in part due to their relatively lesser damage, as though that somehow negates their moral validity altogether. The moral case of suffering in extremis tends to have the unfortunate effect of making its toleration of many victims of less suffering somehow more acceptable. That only makes sense for those who share in the belief that life begins at conception; and truly, I wish them well in their acting in accord with that belief.
The coming end of Roe at least does not at this point mean a complete return to the pre-Roe days of Edward Kienholz’ “The Illegal Operation.” The era now begun will be remembered as the Checkerboard Era, most states protecting abortion rights, some eliminating them. If your state has a Republican majority in both legislative houses and a Republican governor, kiss abortion rights goodbye, and soon.
What goes hand in glove with those rights are voting rights. Within those states if you are a Democrat, or part of a Democratic constituency group, the era of Jim Crow has returned. Make no mistake, it is truly menacing but more polite, at least for now, than the brutal apartheid regimes that routinely promoted lynchings and tolerated massacres such as Wilmington (1898) and Tulsa (1922) when deemed necessary. Within those states if casting your vote has become noticeably more difficult, just in case the Republican Party loses a key election, decertification to overturn such a result is now becoming an option. The courts, going right up to the Supreme Court, are now positioned to assert the new ascendancy of interposition and nullification. That this is so is not an accident but the result of a project dating back to the time of the Roe decision, the Lewis Powell Memo of 1971.
Suzanne Lacy and Leslie Labowicz, “In Mourning and in Rage,” 1977, performance, Los Angeles City Hall.
This performance helped launch Social Practice into the aesthetic mainstream, and anticipated the visualization much later of female repression in "The Handmaid's Tale." However, as an act of protest the focal point was the then hot topic of the so-called "Hillside Strangler" in Los Angeles, not abortion.
The Authorization of Vigilantism
The second part of Texas SB 8 is both clever and, if possible, more constitutionally invalid and socially odious than the viability section. In order to avoid the legal pitfall of invoking state authority, anyone who files suit against a person whose “conduct aids or abets the performance or incumbent of an abortion” receives a reward of $10,000 plus legal expenses if that person is found guilty, while being shielded from any liability if they are not. If the harassment of abortion providers has been a persistent if marginal feature for decades, the certainty of frivolous lawsuits filed by people without legal standing reverses the very nature of victim and victimizer. It logically also opens the door to other categories of private citizens being deputized by a politically friendly government to file similar lawsuits against, say, individuals who refuse to wear a mask during a pandemic.
Cindy Sherman,. “Untitled,” 2019, color photograph. Courtesy of Cindy Sherman.
A truly ideological court will likely draw a distinction between bounty hunters whose views they agree with and those they do not. But this practice, widely and effectively used recently and notoriously by totalitarian regimes, recedes deep into the barbarous early history of a civilization that only recently entered into a technological era capable of injecting democratic and human rights broadly into the global mainstream of mass societies. The Texas bounty hunter earning a handsome living by turning in receptionists and Uber drivers is designed to chill the practice of abortion out of existence. But given legal oxygen it is not unreasonable to see what this can easily devolve into. Hobbes’ “war of all against all,” with the tacit approval of this provision by the Supreme Court, hovers within view.
Texas Republicans must be credited for not just designing a cute legal workaround, but of being the first state to do so at the long-awaited moment that the Supreme Court would complicity look the other way. The difficulty of achieving and retaining political power in an environment in which yours is a minority is exactly the same as validating your moral position in a world in which the majority do not share that position. It must be imposed.
We are happily not yet at that time in which the imposition of power in America is imposed by brute force. But we are within spitting distance. This is where we stand today; that does not mean it is where we will stand tomorrow. The 2021 version of the Republican Party is committed to a course of imposition that about 70% of Americans neither agree with nor accept. Abortion serves as the tool of moral authority just as voting rights serves as the tool of political authority. And stealing elections is justifiable if there is an equal, if utterly false, moral conviction that the other side is already doing so. Where does that leave that 70%?
So Where Does That Leave The 70%?
The strength of most Americans who do not accept such forcible imposition by a motivated minority lies in its apparent weakness: an ongoing willingness to question our own principles and motives. We do so in our political discourse — plenty of genuine conservatives share in this virtue and understand how it strengthens us by presuming our capacity for growth and self-improvement. Where we risk failure lies in the area of character. Having led, on the whole, a comfortable life many Americans understandably are loathe to sacrifice, certainly not to sacrifice everything, what Jefferson committed to the Declaration of Independence: “Our Lives, our Fortunes and our sacred Honor.”
In our time we have had the good fortune of multiple wakeup calls. In this year alone we now have January 6th and September 1st. With all of the advantages of our education, our affluence, the insulating security of America’s singular standing in the post-WWII world, the question that will determine the outcome of the decades ahead is whether we have the character to employ the vast resources at our disposal effectively.
David Mach, “Reclining Figure: Coathanger,” sculpture. Courtesy of David Mach.
For women, the status quo for many centuries placed them in an inferior power position through sheer force of coercion coupled with lack of health care and birth control technologies. Only very recently did reliable birth control and safe abortion become an option, producing now multiple generations that have brought us far closer to full gender equity that could have not long ago been imagined. Many of us have achieved what is truly a new normal. Our aspiration is to universalize, not withdraw the rights that go with that.
But that that does not preclude a yearning for, and impulse towards old habits, a fearful reaction to that new normal being a grave threat rather than a society-wide liberation. When so many have experienced this liberation, do we work to make it feasible for more to share in that liberation. Or do we pull up the drawbridge out of fear that new entrants will steal away what we believe to be ours?
When regressions such as Texas SB 8 occur, it is natural for many to respond with hyperactivity or disheartened passivity. We see examples of both extremes on our screens and monitors daily. But most of us live somewhere in between, perhaps biding our time, perhaps working and adapting towards what we hope will be that better day, that return to the kind of world we not long ago regarded, optimistically, as established.
Well, it still is. We are still engaged in the struggle to pull our civilization free of its barbarous roots. We do so without any guarantee of success in the short term, so it behooves each of us to grapple with the joys inherent in the process and the purpose that it lends us, both of which are the real source of our empowerment. That is most certainly not to be found in the power of coercion over others. The advancements that Roe has brought about, despite today’s efforts to impose an authoritarian regime right here in America, in spite of a politicized and intellectually corrupt Supreme Court majority, in spite of a fresh round of undeserved suffering by a new generation of women, are here to stay. In the present moment, therefore, let the backlash begin.
Viva Ruiz, “Thank God for Abortion,” 2019, photograph. Courtesy of Viva Ruiz and Downtown for Democracy.