The Alito draft and a long-term way forward

The irony of the Alito draft on Jackson Women's Health v/ Dobbs is that, while citing the fact that Plessy v. Ferguson is an example of a Supreme Court opinion where the Court changed its mind, his opinion would essentially start the process of bringing Plessy era jurisprudence back to life. The whole point of Plessy was not separation of the races, but the judicial theory that the various states are competent to judge their own compliance with the 14th Amendment.

Paging Franz Kafka! Paging George Orwell!

A year ago, I suggested text for just such an opinion as the Alito draft. You can read it at http://xianleft.blogspot.com/2021/06/text-for-state-in-19-1392-dobbs-v.html

For years, both sides of the abortion debate have used it for political advantage. There are now generations of people who are committed to the arguments. There are volunteer lists and funding streams on each side in every state.

It is time to end this. Indeed, Justice Alito has given us no choice. Even if Justice Gorsuch saves the conservatives on the court from themselves, there is no going back from the current brink. We must find a way toward a long term solution. 

Our polity must be disinfected. 

In 2009, the Catholic bishops attacked the mythical Freedom of Choice Act, even though President Obama had offered during the second debate to sit down and work out how to deal with the problem of late term abortion. If Secretary Clinton had taken the same tack, rather than defending partial birth abortion (I still think Russia hacked her briefing book), Trump would not have been President and the old status quo could continue.

Dobbs has changed that. Combined with the emerging truth on the Insurrection and Trump's involvement with Putin on Ukraine (he was likely bribed through donations from Moscow to his Super PAC through Lev, Igor and Rudy), the GOP may just cease to exist. The conservative party in the U.S. has failed twice before (both the Federalists and the Whigs). 

2022 will not be a good year for the GOP. No amount of capitalist sabotage can save it either.

The Freedom of Choice Act may be passed this year, for real this time, if the Alito opinion in any form becomes the Opinion of the Court. If it is not passed before the election, it will be passed with large majorities in 2023.

The only play the GOP can make to stay alive is to pass some form of FOCA on a bipartisan basis. It must also punish the leaders of the Insurrection within its congressional caucus, while those who voted with them in the wee hours of January 7th accept censure.

In 2023, Republicans will have to beg for bipartisanship. The Democrats should remember that they will one day be in the minority and should welcome some kind of joint solution. The reason there are so many pro-life judges on the bench - including the 5th Circuit that let Jackson pass, was the Dems flirtation with the nuclear option and with ending the filibuster.  

Every time the Dems want to change the rules to pass the current agenda, the Republicans use those rules to do permanent harm. Insanity is doing the same thing year after year and expecting a different result.

What would a bipartisan solution look like? Here are some elements.

Require that the only legal form of abortion after 20 weeks is induction. No one has an abortion after this point that is not medically necessary. Demonizing women who do makes no friends for the pro-life movement. Fetal hospice is much preferable to the more gruesome methods, like D&C and D&X.

Agree that only Congress can set the boundary where the child is protected under law. The United States tried to deal with slavery by letting states chose to be slave or free. It did not work out well. Sending the matter back to the states would repeat this error. Alito's position is not only bad for women, it is bad for national harmony. It would make the existing divisions worse.

Terminations before a congressional boundary are forever a matter between a woman and her doctor. The logic of this is that, if the child is not legally recognized, the right of privacy must be respected. Privacy is not confidentiality. It is the right to be left alone by the prying moral mob.

After the boundary, abortion would have to be considered homicide - not simply a prohibited medical procedure. This means that all involved, including the mother, have legal liability. After that boundary, pregnancies would have to be registered - all pregnancies - just as we register stillbirth and live births.

Having to do this should give the pro-life side pause. To actually treat a pregnancy as a person will affect every pregnant woman and her family. Likewise, all lost pregnancies after the boundary would have to be investigated as a homicide - even if that is only a mandatory chart review by the coroner. This may extend to in-person investigation by law enforcement. Such investigation shocks the conscience as abuse of any woman or couple which has suffered a miscarriage.

Calling a fetus a person has consequences. To really do so is not easy and to not do so thwarts the argument that legal protection must be provided to the unborn.

So what is left?

Between two-thirds and three-fourths of abortions are done because of the economic or life impacts on the mother and her family or partner. To stop abortion (and even demolish its infrastructure), these causes must be ameliorated. This means higher wages, higher (refundable) child tax credits, better childcare and paid family medical leave.

For late term Down's Syndrome Children, this means free respite care for parents and lifetime disability income and case management services for the children - and that income must be adequate. In other words, alleviate the fears that families have - fears that are quite reasonable.

All of this is best enacted this year. Indeed, the President needs to shame the bishops into calling economic justice for families a pro-life issue. No one deserves a perfect pro-life record if they do not take care of families (not just helping out with pregnancies and offering adoptions to compliant Catholic couples).

To not provide such subsidies AND ban abortion is not only shameful, it is evil. Doing so is considered a sin that cries to Heaven for Vengeance. Indeed, not funding families adequately is identified in Catholic Doctrine as intrinsically evil (look it up).

There are many Republicans among the working poor. They need the help. Helping them should be bipartisan. This is the only way to get it done and the only way the GOP can survive in its present form.