Georges Rouault, “Three Judges,” 1918
On January 22, 1973, the Supreme Court struck down a Texas anti-abortion law. The case is famous as Roe v. Wade. Jane Roe was the court’s pseudonym for Norma McCorvey, a working-class white woman who had given birth to three children and put them all up for adoption. The case reached the federal level after McCorvey’s third pregnancy in 1969. Henry Wade was the district attorney of Dallas County, and had a decade before prosecuted Jack Ruby for the murder of Lee Harvey Oswald. The majority court statement, written by Harry A. Blackmun, a conservative appointed by Richard Nixon, voted liberal on this issue, carefully walking the tightrope between individual liberties and society’s need to protect public health during the polarized Watergate era. In “Sexual Injustice: Supreme Court Decisions from Griswold to Roe” (2011, p.52), Marc Stein writes:
Blackmun argued that in the past the Court had recognized that a right of personal privacy, or guarantee of certain area or zones of privacy, does exist under the Constitution … “This right of privacy … is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Disputing the notion that this right was absolute,” however, Blackmun wrote that “a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life.” On this basis, the Court ruled that in the first trimester, “the abortion decision … must be left to the medical judgment of the pregnant woman’s attending physician.” [Justice Blackmun: and the woman herself?] In the second, the state could “regulate the abortion procedure in ways that are reasonably related to maternal health.” In the third, the state could “regulate, and even proscribe, abortion except where it is necessary … for the preservation of the life or health of the mother.”
It was a Solomonic decision that balanced societal and individual rights about as well as could be expected, considering the complexity of sexual relations, and it ushered in a forty-nine year period of sexual and reproductive freedom for American women, men, and their “attending physicians” — until now, with abortion-clinic terrorists having found powerful friends in all three branches of the federal government, including the Supreme Court; in red-state legislatures; in the 24/7 Republican noise machine of Fox News et al.; in the evangelical apocalypse infotainment industry; and in the mob of “deplorables” (in Hillary Clinton's accurate but politically gauche term) who seem every day a little less human and humane. This misogynist horde would like to return to the good old days of 1950, when everyone supposedly knew their place and abortion deaths numbered 200,000 to 1.2 million a year. Even better, to 1850, when the Fugitive Slave Act was in the legal mainstream; or even 1650 when Justice Samuel Alito’s intellectual progenitor Sir Matthew Hale was in his prime.
In his recently leaded reasoning on overthrowing Roe, Justice Alito — whose wife left his Senate confirmation hearings, distraught over tough questions posed by Democratic enemies — repeatedly cites the English jurist Hale, who was an influential defender of the patriarchal family; of coverture, by which the husband/sovereign assumed the rights of his wife/chattel; and even of contractually sanctioned marital rape.
Edward Kienholz, “The Illegal Operation,” 1962, mixed media assemblage
We may assume that Ginny Thomas, wife of the justice’s “best friend,” immersed in an insurrectionist life kept secret from the Associate Justice, has ever played the dutifully gracious undercover helpmate.
Return with us now to those exciting days of yesteryear, visually exemplified by Ed Kienholz’s still shocking 1962 assemblage sculpture “Illegal Operation” Is this the way forward for America? Wikipedia traces the evolution (if you can call it that) of anti-abortion misogyny in 19th-century ’mainstream’ thought:
—Until the late 19th century, abortion was legal in the United States before “quickening,” the point at which a woman could first feel movements of the fetus, typically around the fourth month of pregnancy.
—Some of the early regulations related to abortion were enacted in the 1820s and 1830s and dealt with the sale of dangerous drugs that women used to induce abortions. Despite these regulations and the fact that the drugs sometimes proved fatal to women, they continued to be advertised and sold.
—In the late 1850s, the newly established American Medical Association began calling for the criminalization of abortion, partly in an effort to eliminate doctors’ competitors such as midwives and homeopaths.
—Additionally, some nativists, alarmed by the country’s growing population of immigrants, were anti-abortion because they feared declining birth rates among white, American-born, Protestant women.
—In 1869, the Catholic Church banned abortion at any stage of pregnancy, while in 1873, Congress passed the Comstock law, which made it illegal to distribute contraceptives and abortion-inducing drugs through the U.S. mail. By the 1880s, abortion was outlawed across most of the country.
Carl Theodor Dreyer, still from “The Passion of Joan of Arc, 1928 movie
But let’s return to the federal bench. Today’s supposedly strict-constructionist conservatives like Clarence Thomas have searched in vain for enumerations of bodily autonomy and reproductive rights in the Constitution. No dice! The three new conservative Associate Justices, all devoted religionists, loudly proclaimed their fealty to precedent and stare decisis during their Senate hearings. Now it appears that they told little white lies. The leaked draft of Alito’s majority decision relegates abortion to the states and thus the tender mercies of demagogues like Florida governor Ron DeSantis and Texas governor Greg Abbott. Roe’s reversal will effectively condemn many poor women to economic hardship and, yes, the back-alley abortions we thought were gone forever. Women — even Republican women — will become de-facto second-class citizens, sexual slaves in the new white American-Taliban ethnostate, a “Handmaid’s Tale” dystopia to be enforced through digital surveillance (as the American Civil Liberties Union points out).
Among precedents the Fanatical Five choose to disregard is Griswold v. Connecticut (1965), which promulgated the right to marital sexual privacy, as it is not explicitly enumerated in the Holy Writ of the Constitution. Associate Justice William O. Douglas, appointed by Franklin Roosevelt — and, incidentally, something of a free spirit in romantic matters himself, to the detriment of his reputation as a civil-right champion — wrote:
Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive … We deal with a right of privacy older than the Bill of Rights — older than our political parties, older than our school system.
Associate Justice Arthur J. Goldberg, appointed by John F. Kennedy, concurred:
Although the Constitution does not speak in so many words of the right of privacy in marriage, I cannot believe that it offers these fundamental rights no protection. The fact that no particular provision of the Constitution explicitly forbids the State from disrupting the traditional relationship of the family — a relation as old and as fundamental as our entire civilization — surely does not show that the Government was meant to have the power to do so.
Elek Kanarek, "Portrait of William Orville Douglas."
Reproduction courtesy of the Supreme Court Historical Society.
The right to marital privacy, then, is “self-evident” and needs no specific listing in the Founders’ documents. On a slightly humorous note, Douglas posited the existence of “penumbras” and “emanations” implied by the American charters. These ghostly rights are mocked in a sign on Clarence Thomas’s office, reading, “Please don’t emanate in the penumbras,” the sole evidence of a sense of humor I have observed in him, though it’s GOP humor, mocking and superior, in the spirit of his conservative predecessor, Oliver Wendell Holmes, who ironically loathed the inferior races.
The co-optation of the Constitution by a Supreme Court shaped by concentrated elite money and power is an ugly thing to behold. Sexual freedom is merely one dimension of the billionaires’ extortionate war on the mass of the American people. FDR spoke of “malefactors of great wealth.” Consider the recent mass murders in churches, supermarkets, and schools; the continued ginning of the nutcase base with fantasies of civil war; and the mainstreaming of the NRA’s, GOP’s, and evangelicals’ violent culture of Armageddon. It’s clear that fascism has arrived, wearing blue jeans, driving a truck, and wrapped in the flag, bent on purifying our pluralistic immigrant nation of ‘alien’ and ‘mongrel’ elements. If that racist terminology evokes the Nazi propaganda of a century ago, remember that it derived from earlier American white-supremacist eugenics, the kind that informed pseudo-science of the sort that Associate Justice Holmes endorsed, also just a century ago.
American history has been whitewashed for generations, with the sins committed against nonwhite heathens in order to obtain free land and resources (Native Americans) and free labor (African Americans), respectively, once more being stricken from school textbooks. Today the cultural conservatives’ struggles to prohibit teaching about the dark side of the American experiment because that knowledge would make the kiddies sad is both ludicrous and sinister. Keeping people in the dark makes them malleable and preserves the upward flow of capital from the masses to the masters.
A riff on Banksy's famous "Flower Bomber" street art. Looks like the book is Margaret Atwood's "The Handmaid's Tale."
The Supreme Court has historically alternated between serving the status quo (sometimes egregiously, as in its support for slavery before the Civil War) and pushing the nation forward toward a more perfect and more democratic Union (desegregation and — remember? — the Great Society). Jeffrey Rosen in “The Supreme Court: The Personalities and Rivalries That Defined America” (also a PBS series) sees its history as a productive and necessary clash of judicial (if not always judicious) temperaments, philosophies, and world views: the ideological versus the pragmatic, the active or proactive versus the reactive, the institutional loyalists versus the radicals. It is complicated and messy, defying simplistic generalizations.
It’s good to remember, in light of the Court’s complex institutional history, that the justices still don their robes one arm at a time. However oracular the statements, however august the personages, the nine black-robed justices are human and fallible, and not so different from you and me. Stein, in “Sexual Injustice,” features an eye-opening compendium of all-too-human private failings: justices as products of unhappy or contentious marriages, justices whose parents had illegitimate offspring or contracted syphilis; justices consorting with prostitutes; justices consuming pornography; justices engaged in premarital or extramarital affairs; and justices joking and consuming beer like frat boys. Because I care about an informed public and electorate, I recommend you peruse pages 8-12 of Stein’s Introduction.
Francisco Goya, “Junta of the Royal Company of the Philippines,” 1815, oil on canvas
Without a sense of duty to the American people, or a vision of the future, political institutions become fatally constrictive exoskeletons. The many public officials so obviously bereft of purpose, meaning, or integrity resemble the costumed idiots of Georges Rouault’s “Three Judges” (1918) and the frozen puppets of Goya’s “Junta of the Royal Company of the Philippines” (1815), an officially commissioned group portrait in which Goya depicted, with his usual gimlet eye for human folly, the banality of empty power. In “Goya: The Origins of the Modern Temper in Art” (2001) Fred Licht wrote:
Everyone seems to be fidgety and restless with intolerable boredom, and every face stares off vacuously in a different direction. Instead of concerted action, instead of eternalization of individual features, instead of an interpretation of the social needs of mankind, we have here a total suspension of plausible activity, blank faces that bespeak mass anonymity, and a distinct sense of the irrelevance and meaninglessness of all human relationships.