Abortion in Alabama, Part II

I never knew that Alabama was the abortion capital of the South! Of course, it isn't. Between social pressure and outright harassment, I doubt that there are many abortions there at all, which is why I contend that this is all about overturning Plessy v. Ferguson, not just banning abortion state-by-state. I doubt the law will ever be reviewed by the Supreme Court. Indeed, it may get enough people active to vote the GOP out of office to moot the suit defending it.

The real action is the June Medical Services v. Gee, the Louisiana trap law case. If SCOTUS decides it in the same way as Texas, or simply overturns the Fifth Circuit without hearing it, then the meme of an increasingly conservative Court whittling away at abortion rights will have been disproved. That would not be good for fundraising on either side. Nothing gets less money than a settled issue. Abortion will soon have a March of Dimes problem. So will gay rights if the Second Circuit decides, as expected, that Sex (Gender) in the Civil Rights Act includes Sexual Orientation (Gender Identity).

The Alabama Abortion Law is integral to Making America Great Again. Both are reactionary movements and both have essentially the same membership. Their average age bodes ill for both movements and for the GOP as a whole, so covering this issue is not the welcome distraction from impeachment we had hoped. Indeed, if Trump is removed, it will do to the GOP electorally what Nixon's resignation did - but this time the GOP may not come back.

The final stake in the heart of the pro-life movement would be to identify them with repealing Plessy and to force them to face the issue of fighting abortion by enacting an adequate tax credit for families with children and a life-time subsidy for citizens with Downs Syndrome so that they are not reduced to manual labor once their support system (parent) dies. They are mostly the Republican Party at prayer, so there is no chance it will support a financial solution to abortion, although I am willing to be surprised.

I would be nicely surprised if the Democrats took up the mantle of a middle class level child tax credit (donors be damned). That would be over $1000 per child per month and should increase with inflation. Paired with a $15 minimum wage, it would be a guarantee of prosperity, although by nature it would cause inflation - but only a bit. It would mostly lead to growth as unmet needs are met.

The Democrats should also use either the Louisiana or an Alabama case as a teachable moment. Instead of simply calling this a woman's freedom issue, it should mention that rights for everyone are at stake and that the right wing's targets are Latinos (Hernandez), minority children (Brown), birth control users (Griswold), especially women (Roe), migrant students (Plyler) and Gays and Lesbians (Roemer, Lawrence and Perry). All would fall if Roe fell, bring back the state power that was the real gist of Plessy. Just look at the GOP platform and legislative agenda if you have any doubts.

The Democrats should also explain that the unborn have the same right to life as anyone has against the state. Mandatory abortion and the execution of women are banned by the Fifth and Fourteenth Amendments at the federal and state levels. Further, they have the same right of tort relief if they are harmed when their mother is. The law that enforces that right also codifies as federal law an exception for abortion. Even if Justice Thomas were right that the Court could use derived power from Congress under the 14th Amendment to change the terms of personhood, it cannot do so as long as the Unborn Victims of Violence Act is in force (which is why it must be reauthorized immediately). If the GOP balks at that, they should be shamed.

What the unborn do not have is a right to life on the federal level unless Congress uses its power to find that they are persons from whatever point Congress wishes. Of course, doing so would require that miscarriages be investigated with abortions, because selective enforcement is a clear violation of the due process rights of mothers and their doctors. States have no power in this area at all.

The unborn do not have a constitutional right to not be murdered. No one has. Not being murdered is part of the social contract. We all give up our rights to total self-determination in exchange for the protection of the government. To say otherwise would be to declare that having a government itself IS a civil right. I doubt the Republicans would admit to such a thing - but it would be great fund to put the issue in these terms and ask them.

Catholic politicians should argue these points as something that they believe, not just tolerate, explaining these matters to the Bishops in small words. They must also justify their defense of pluralism using the Magisterium of Vatican II.  While Dignitatis Humanae was never meant to be a justification for abortion rights, the same right of conscience in not requiring Catholic leaders (both civil and ecclesial) to fight to make all states Catholic and be governed as so, by extension it means that the Church cannot insist that they must criminalize abortion, although they certainly can do so or, in a way more in tune with doctrine, support economic measures like those mentioned above to provide a living wage to families with children, particularly children with special needs who would otherwise be aborted. See Casti Connubii for details. Indeed, Casti is not really optional, including for Catholic Republicans.

Any brief on either Alabama or June should include the above discussion of positive and negative rights of the unborn (and the impossibility of the Court enacting protections under either Scalia or Thomas theories of the case). It should not be shy in recognizing the right of Congress to change the terms of personhood and explain why due process rights of women and doctors would not allow first trimester abortion bans without also investigating all miscarriages. There are a few interesting questions to address so that they may be asked of the Respondents in June, particularly the Solicitor General if intervening for the Respondents (although the resignation of Pence and Trump would change that dynamic):

Do respondents (Gee) or does the United States wish to reverse Hernandez through Perry and on what logic does overturning Roe in favor of state action not do so, thus re-instituting Plessy?

Is there a constitutional right to not be murdered and where is it found in the text or the writings of the Framers? Does this imply that the existence of government is also a natural right or is it contractual, as the Framers clearly intended in the Declaration of Independence (which although not legally binding, indicates their intentions)?

Those two questions will forever end the abortion rights movement. While it is better that June be reversed rather than heard, these are still delicious questions for public debate.