Politico last night reported on a momentous development: a majority of United States Supreme Court Justices are prepared to join Samuel Alito in overturning Roe versus Wade, stripping women of the constitutional right to terminate a pregnancy they have enjoyed for half a century. Liberals must act. My advice? Scorch the earth. Here’s my warplan:
- Abolish the Senate filibuster and then:
- Codify Roe versus Wade into federal statute.
- Pack the Supreme Court with at least four, ideally nine, new pro-choice Justices. Four would grant liberals a bare 7:6 majority, but the latter provides a much more robust 12:6 majority.
- Execute Elie Mystal’s plan to send out federal abortion providers to conservative states that attempt to ban or restrict abortion, in violation of both the new federal statute and a ruling from the newly packed court restoring Roe versus Wade. I would additionally use the federal military to protect the federal abortion providers and the women who use them against any outside interference.
- Ready articles of impeachment against all the pro-life Justices, and make it clear they will all be drug through the impeachment process if they overturn Roe versus Wade. Democrats may not have the votes to convict them, but it will impose suffering on them, and will additionally send a strong message that violating the rights of women will not be tolerated.
- Set up infrastructure owned and operated by liberal state governments, complete with state guard protection, to provide abortions to women from across the country, ensuring access to abortion should Republicans take power at the federal level and eliminate the federal abortion providers.
- Send out operatives from liberal states to assist red-state women to evacuate to liberal states to get abortions, and to protect them against interference from hostile state governments. Conservative states are already attempting to ban women from traveling interstate to get an abortion; if Roe versus Wade falls Republicans will only be more emboldened.
- Nullify in the liberal states any attempt by the federal government to enact a national abortion ban. Yes, anti-choicers are plotting to enact a national abortion ban as I write this. Make it clear the liberal state governments will use whatever force may be necessary to protect abortion providers and women from federal interference.
- Pack the Senate by creating new liberal states; for example, by splitting California into multiple states. 30 states voted to the right of the nation in 2016 and 2020, and this is a long-term trend that’s only getting worse, meaning the Republicans will soon have a permanent Senate majority bar a Democratic landslide victory in the popular vote unless Democrats act now to create more blue states. This will also insure somewhat against the possibility a Republican majority could pack the courts themselves or repeal the codification of Roe versus Wade.
The basic idea is to use every lever of power available to the Democratic Party today to enshrine the right to an abortion in federal law, make conservative state action in the event federal protection fails as impotent as possible, and to impose a grievous cost on any federal attempt to ban abortion.
Extremism in Defense of Liberty is no Vice
This program might strike you as extreme, but if you’re serious about a woman’s right to choose, that’s what needs to be done, lest a conservative Supreme Court unleash conservative state governments to do whatever they please on the issue, and even possibly unleash the federal government to ban abortion nationwide when Republicans take over, which could occur as soon as 2024.
Samuel Alito’s draft opinion is breathtaking in its vastness and, frankly, its seething hostility to the very concept people have any rights at all that merit protection by the federal judiciary under the Constitution, in blatant contravention of not only precepts of liberty and justice, but also the black-letter law of the Ninth Amendment:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
In this Alito and his five fellow conservatives have fallen far short of the standard set by our greatest Supreme Court Justice, William O. Douglas, who pronounced:
The Constitution is not neutral. It was designed to take the government off the backs of people.
Alito even goes so far as to attack, by name, Lawrence versus Texas, a federal court decision that ruled states could not criminalize same-sex intercourse. And we already know Marsha Blackburn, who never utters a word that isn’t parroted from the broader conservative movement, just a couple months ago explicitly attempted to go after Griswold versus Connecticut, a federal court decision that ruled states could not criminalize married couples using birth control.
Sure, sure, the Republicans all mouth platitudes about how they’d never go after birth control or the sex lives of gay people, but I’m old enough to remember when they all mouthed platitudes about how they’d never go after Roe versus Wade, just a couple years before Samuel Alito vomited forth this draft opinion and it became unquestioned consensus within the Republican Party to ban abortion after six weeks even in cases of rape and incest.
If you think the Republicans won’t criminalize birth control, abolish same-sex marriage, and criminalize “sodomy” the first chance they get, complete with the worst police state the Western world has seen since Ceaușescu’s Romania to enforce it, you’re being very naïve.
The Rightist Recrudescence
This is a movement that has in a matter of months revived the canard of LGBT people being pedophiles, thought by many (including myself) to have died out decades ago never to return. Now in lockstep behind the doctrines of QAnon, they have expanded the old homophobic trope to encompass not only trans people but also all political enemies of the Christian right.
I know this in part because the most frequent insult I get from rightists on Twitter is “pedophile” or “groomer”, and the frequency and intensity of such attacks is growing, now being perhaps the defining rhetorical flourish of the conservative movement, now that “Let’s Go Brandon” (code for “Fuck Joe Biden”, itself rather vulgar, in keeping with the conservative movement’s white-trash orientation) has worn out its welcome.
Other left-wing figures get these attacks too with increasing intensity and frequency, and it’s not just a symptom of being Extremely Online like one might think, and like I hoped before the events of this year: the spokesman for Ron DeSantis, a man who always has his pulse on the conservative zeitgeist, has embraced “groomer” rhetoric without reservation.
I was struck most of all by the Ketanji Brown Jackson confirmation hearings in March of this year. Of all the arguments Republicans could have used against her confirmation, and there were many, their first resort, as trial-ballooned first by Josh Hawley (because of course; the guy comes off like a cross between Lord Voldemort and a reincarnated member of the SA), was to essentially call her a pedophile.
For what reason? For giving “lenient sentences” to child pornographers…sentences that were in line with what federal judges in general mete out. Curiously, all the other federal judges, including Ketanji Brown Jackson when she was confirmed for an appeals judgeship just last year (!), didn’t elicit any righteous outrage against being soft on pedophilia, just her in 2022. Why? What changed from the last time a Democratic President nominated a Supreme Court Justice: Barack Obama nominating Merrick Garland in 2016?
We’d be naïve to think her being a black woman had nothing to do with it; somehow I doubt a strapping elite white man like Neil Gorsuch would have inspired such attacks. But even against a black woman this is a new frontier of deranged vulgarity from the Congressional Republicans. This line of attack dovetails with QAnon, a movement that’s waxed in power on the Right since 2016, far too much for it to be a mere coincidence; I have no doubt the Right’s embrace of “pedophile” and “groomer” is a dogwhistle to QAnon, who they now consider to be their base.
Worse still, I got a distinct impression from the Senate Republicans’ body language, tone of voice, and so forth that they weren’t merely mouthing off and going through the motions so they could appeal to the base; no, based on everything I saw and heard from them in March, my intuition tells me they actually believe in QAnon precepts. These people aren’t some online randos; these are actual people who hold actual seats in Congress, most of them respectable and ostensibly well-educated.
Interestingly, the “grooming” hysteria has dovetailed not just with QAnon and the homophobic recrudescence, but also with the anti-choice movement feeling newly emboldened. Check out this Washington Post story from just May 2: high-ranking anti-choicers are under the impression their tyrannical new abortion dictates and a national abortion ban are actually popular! That to me is perhaps the most shocking aspect of all. The embrace of 2020 election conspiracy theories and especially QAnon seem to have cost the Right their last threads that tethered them to objective reality. Not a shred of sanity remains: now conservatives are permanent residents in the land of make-believe.
Even Samuel Alito and company still seem to be aware overturning abortion rights is unpopular (which it is, despite anti-choicers’ generational struggle to normalize the idea women’s wombs belong to the state), but judging by the text of his draft opinion he actually seems to believe such a court decision, even if unpopular, will resolve the abortion controversy. Well, he ought to ask Roger Taney how well that worked out when he hijacked the Dred Scott case to settle the slavery issue once and for all. Result? A million corpses within a decade.
If any decision, any era of jurisprudence, has the potential to be the Republicans’ Dred Scott moment, this one is it. They are sowing the wind, and they shall reap the whirlwind.