Think about it this way: If Justice Samuel Alito gets his way, and the Trumpist Supreme Court majority voids Roe vs. Wade, many states will be forced to begin criminal investigations of women who suffer miscarriages. Don’t give me that crying act, sweetheart. In this state, abortion is murder.
After all, it’s not as if the police have anything better to do.
Exactly how the authorities are supposed to know who’s pregnant to begin with is a tricky question. Maybe doctors will be required to turn them in. Call them “mandatory reporters,” like teachers who encounter child abuse.
And what about those home pregnancy tests? Maybe they’ll need to be taken under official supervision. Perhaps pharmacists can be deputized.
Hippocratic Oath be damned.
In the spirit of the Fugitive Slave Act of 1850, Republican state legislators are considering prosecuting women who travel, say, from Missouri to Illinois for legal abortions. Can we expect Texas to administer pregnancy tests at the Mexican border—going and coming? Otherwise, there could be as many gynecologists as cut-rate dentists in Juarez.
Look, if all this sounds like a bad joke, I wish it were. Most Americans believe that there’s a right to privacy in the U.S. Constitution. The very austere Justice Alito, however, assures us that’s not so. His draft opinion overturning Roe vs. Wade, the 50-year-old Supreme Court precedent granting American women reproductive freedom, astringently points out that the word “abortion” does not appear in the text.
Of course, neither do the words “cellphone” or “woman.” Women participated in the Constitution’s, pardon the expression, gestation not at all. They played no role in 18th century American political life—one of the many reasons Constitutional “originalism” makes so little sense. Slavery too.
The overall tone of Alito’s draft opinion was best described by Adam Serwer in The Atlantic: "Alito’s writing reflects the current tone of right-wing discourse: grandiose and contemptuous, disingenuous and self-contradictory, with the necessary undertone of self-pity as justification."
In my view, turning government over to law school all-stars was never a good idea. Rationalizing the irrational is what they do. Indeed, I suspect Alito himself is as good a suspect as any for who leaked the fool thing to the media, placing maximum pressure on his colleagues to affirm it.
And speaking of irrationality, Alito’s 92-page opinion relies for much of its historical analysis on 17th century English jurist Matthew Hale, who pronounced the abortion of a “quick child” a “great crime.” (A “quick child” is a fetus whose mother can feel its movements, that is, five or six months along.) Polls show most Americans would agree, but more about that to come.
Among historians and legal scholars, Matthew Hale is notorious for having also decreed that a man can’t rape his wife, as a woman cedes property rights to her womb at marriage. He also presided over one of England’s most notorious witchcraft trials in 1662, sentencing two elderly widows to be hanged.
Some learned authority, no?
Hale's 17th century biographer John Aubrey wrote that the eminent jurist’s first wife “made a great cuckold of him,” but that’s neither here nor there, and I’m ashamed of myself for mentioning it. For whatever cause, he definitely had an attitude about women.
The main reason Americans think there’s a right to privacy is the Fourth Amendment, which affirms that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”
Think about it: What could possibly be a person’s own damn business more than the decision of whether or not to bear a child? Do you really want the government to monitor your neighbor's intimate life? Your own? If you’re like most Americans, no, you pretty much don’t.
So often in the forefront, Oklahoma has already imprisoned a woman who had a miscarriage after taking illegal drugs—a Native American woman, naturally. It’s hard to imagine them investigating debutantes.
Regardless, polls have shown that the great majority agrees with Bill Clinton’s formulation that abortion should be “safe, legal, and rare.” More than two-thirds of respondents told a 2018 Gallup poll that they wouldn’t like to see Roe v. Wade reversed. Most favor little or no restriction on first trimester abortion, but feel quite differently about late term procedures—pretty much the standard courts have established in the decades since 1973.
Now minority leader Mitch McConnell tells reporters that a post-Alito Republican Senate “certainly could legislate in that area.” Which can only mean, Michael Tomasky deduces in The New Republic, “that Republicans are contemplating a federal law to make abortion illegal—everywhere.”
New York, California, everywhere.
And what then? President Biden vetoes it, the 2024 presidential turns on it, and the USA ruins a lot of women’s lives and tears itself to pieces.