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Are Abortion Bans Cruel and Unusual Punishment?

May 31, 2023
by Peter Feinman
State Abortion Laws (CNN)

The Supreme Court has decided the there is no constitutional right to abortion. The matter therefore has devolved to the states to pass or not to pass laws as they see fit. A corollary to that ruling is whether or not the Eight Amendment banning cruel and unusual punishment applies to the states as well.

When the Supreme Court thinks about abortion, what images come to mind? Does it think of healthy white women who are carrying a healthy white fetus conceived of by a married couple … meaning as if their own parents had aborted them?

Instead, do they think of poor white trash, an unmarried white woman carrying a fetus which may or may not be healthy?

Perhaps what comes to mind, is a non-white person whether married or not, carrying a fetus which may or may not be healthy?

I do not know the answer to these questions. However it does seem unlikely that medical concerns were of much concern to the Supreme Court be they to the fetus or the mother. No guidelines were issued to be followed in the event a state chose to issue a ban on abortion. At least previously there had been a trimester plan. The Supreme Court decision seems to have been based solely on abstract principle as one might proclaim devoid of human interaction. Once the decision was made, it did not take long for incidents in the real world, to expose the shortcomings and inadequacies of the ruling.

CRUEL AND UNUSUAL PUNISHMENT

In earlier blogs (The Law of Unintended Consequences: From Abortion to Voter Suppression December 5, 2021, Abortion Armageddon: The Post-Alito Apocalypse May 8, 2022), I detailed some of the conditions in the real world which could and did arose based on the state laws implemented or triggered by the Supreme Court ruling and proposed some remedies (Abortion and Gun Control: Democrats Bring a Plastic Spoon to a Gunfight and Wonder Why They Lose

May 27, 2022). At that time and since then people have written about the various ways in which the state bans have caused cruel and punishment although without using that phrase. There is no need to expand the list to include all the medical conditions which can and have arisen due to:

1. women being forced to carry a medically comprised fetus to term
2. women being forced to give birth to a medically comprised fetus
3. women having to endure the heroic medical care being given to the medically compromised fetus or being saddled for life for having to care, meaning pay the medical bills, for a medically compromised fetus
4. women being forced to give birth to twins when one is medically comprised fetus or even dead.

The list goes on and on including when the health of the mother herself may be at risk. The situation may create a dilemma for the medical staff as to what to do as they are sucked into the maelstrom created by state legislatures and governors in the race to the bottom. It is painful enough for librarians and teachers scared about what they can say in a classroom or what book they can assign or make available. Only here the situation is one of life and death.

So the question remains, is the treatment mandated under state law one that imposes cruel and unusual punishment? Do states have carte blanche to create any abortion bans they want without consideration to whether or not it permits cruel and unusual punishment on the mother of the child, the father of the child, the doctor and related medical staff attempting to provide medical care, or to the child who now legally is a person?

I do not know if the abortion bans qualify as cruel and unusual punishment as written, but one would think based on the anecdotal evidence that people certainly are suffering as a result of the state bans. This would seem to be an issue for the Supreme Court to decide as soon as possible.

CONFEDERACY

But there is more to the story than simple cruel and unusual punishment. There are the states which have chosen to make cruel and unusual punishment the law of the land. A CNN map showing the states which have enacted abortion restrictions shows a decidedly Confederate tinge. This would be even more true if South Carolina had been successful in implementing its own ban.

We are at a point where Marjorie Taylor Greene’s call for a divorce is becoming more and more true every day. It is not just that the Union and the Confederacy vote differently at the state level. Rather there are a whole host of issues where the two regions functional differently legally in our federalist system. The list of differences include but is not limited to:

COVID (and vaccines)
CRT (and 1619) prohibitions
Gerrymandering
Gun control
Medicaid expansion
Voter suppression.

In many ways we already are two countries. People are learning to plan trips from the Confederacy to the Union in order to have an abortion. Various organizations are issuing travel warnings about visiting certain states.

Given this reality, what can be done? Previously I had written a blog about whether California or South Carolina would secede first following the 2024 presidential election (Will California or South Carolina Secede First? September 25, 2020). We are at a point where neither would be sad to see the other side go. But we also can see there are many ways the two houses can operate within the same legal structure with both still standing. A Confederate judge in Texas can throw the whole country in a tizzie over what medication can and cannot be used to prevent pregnancy or to cause an abortion.

Once again, I return to the West Virginia solution (Can West Virginia Save Ezra Klein? October 11, 2021). In our last Civil War, the people in the Commonwealth of Virginia separated to form their own state over the issue of slavery. They did so constitutionally. It happened once before, it can happen again. If the Confederate states divided into their Union and Confederate constituencies so many of the problems identified above and at federal level would disappear. While it would not solve all the problems facing the country, it would solve a great deal. Even the threat of dividing all eleven Confederate states would immediately changes the political dynamic of the country. Do you have a better solution?

Krakatoa Kansas versus the Red Wave

August 7, 2022
by Peter Feinman
(MGM Studio)

In 2018, the President of the United States predicted a Congressional red wave. He was wrong.

In 2020, the President of the United States predicted a Congressional red wave. He was partially right but not enough to save him from the House Select Committee and DOJ indictment.

In 2022, everyone in the political chattering class predicts a midterm first term Congressional red wave for the out-of-power party.

Then came Krakatoa Kansas.

Now everything is jumbled. There is uncertainty (fear). What happens if the Republican Supreme Court victory negates the Republican Congressional victory?

Politics is not only local, it is personal. By that I mean, as individual human beings we respond most strongly to actions or events that directly affect us as individuals. Most recently, the price of gas an example. Back from when the draft was rare and we were not fighting a war, the draft was no big deal. Elvis being drafted could even be made into a movie. With the war in Vietnam, suddenly the draft affected every home. It became a big deal. That has not happened in any war fought by America since then.

With these thoughts in mind, let’s turn to the recent, surprising, and cataclysmic vote in Kansas about abortion.

WHAT’S THE MATTER WITH KANSAS? (2004)

Here is what I wrote about Kansas on September 17, 2020:

The book What’s the Matter with Kansas?: How Conservatives Won the Heart of America by Thomas Frank was another exercise in false expertise. The thrust of the book was to resolve the dilemma of why so many Americans vote against their economic and social interests. There had to be something wrong with these people since culture war issues trumped their economic and social concerns. It would be like supporting candidates who consistently favored tax cuts for the rich while giving you nothing. How could people be so dumb as to be shafted again and again while cheering the very people who exploited them? What’s the matter with these people?

The publication date of 2004 is most revealing. That election year was the last time and only time in the Baby Boomer Era a Republican presidential candidate won a majority vote. If it was written say a year before the publication date, then it was five years before Sarah Palin called for taking back the country and 13 years before the then long-time Democrat and Clinton supporter conned Republicans into thinking he cared about the little people the elitists fly over. To put those years in perspective, it means the Democrats had 13-year notice on the 2016 election and learned nothing during the interim except to pour more oil on the fire. Still it is questionable whether or not the Democrats have learned that there is nothing wrong with the people of Kansas except the way they have been treated by the elitists.

The issue raised in by the book was that condescending arrogant self-righteous Democratic elitists knew what was best for the little people of Kansas. The real problem is that those people are too dumb to know what is in their best interest otherwise they would vote Democratic. The harm that this elitist Democratic view has caused this country is not the subject of this blog. The issue is what was left unspoken then: what about when the know-it-all was Republican?

THE TEA PARTY AND SAM BROWNBACK

Sam Brownback (Federalist Society)

Enter Sam Brownback and the Tea Party now the Freedom Caucus of Insurrectionists Mark Meadows and Jim Jordan. Back then, the Tea Party had the words, it had the slogans, and it had the plans that would solve the problems of America. All it needed was the chance to put its money where its mouth was. Then everyone would see that they could not only talk the talk, they could walk the walk.

So Kansas Senator Sam Brownback decided that instead of running for reelection during the Tea Party tidal wave of 2010, he would run for governor. He won and immediately launched his Tea Party program through dramatic cuts in income taxes. Every Tea Party person knows that income taxes are the problem and cutting them if not eliminating them was the answer. Brownback was true to his word. His “red-state experiment” put into action the very slogans the Kansas voters had cheered during his campaign.

Unfortunately for Brownback, his tax cutting occurred in the real world and not in the political professional wrestling arena. The results in the real world were exactly as expected. The Kansas experiment resulted in a corresponding massive cut in state revenue. There was no economic boom to generate sufficient revenues to compensate for the lost revenue. In fact, the result was a financial disaster for the state.

Plunging revenues meant plunging funding available for government spending. Kansas budget shortfalls led to deficits which led to cuts in spending in areas that directly affected individual people. Schools figured prominently in the cutbacks. The thing about schools is that they are in every neighborhood. You do not need to listen to radio talk shows, watch cable talk shows, or listen to politicians to know when you very own neighborhood school is under attack.

It took time, but eventually Brownback’s Tea Party experiment was declared a failure. Tax cuts were reversed, vetoes were overridden, and taxes were increased. More or less there was peace in shire once again. There also was Democratic Party governor elected in 20218 in this Republican state.

Governors are different than Senators and talk show hosts. They have to put up or they are shut up. Governors have direct responsibilities. They act. They do things. Or sometimes they choose not to do things. Whatever the case, they directly impact the lives of the people in their state. They can’t get away with the airhead slogans of Representatives or Senators. Brownback showed he was not doing the job and the people could see and feel it. They may have been conned by the Tea Party slogans but now they had been burnt by the Tea Party actions. Time for a change. Time to vote a Democrat into office.

ABORTION AND KANSAS

The national media are very good at reporting on the words of the national bloviators. There is no doubt that professional political wrestling makes for great sport. If it bleeds, it leads. And that carries over into the political coverage as well.

Then Brownback occurs and all hell breaks loose. For years Republicans talked the talk of overthrowing Roe v. Wade. Republicans sold their soul to a candidate who promised to appoint the judges who would make it happen. The only Republicans who did not talk about reversing Roe v. Wade were the Supreme Court candidates themselves when they were speaking to the Senators individually or in committee. Then at last they had the opportunity to do what Republicans had talked about for decades. They did the Brownback and have reaped the whirlwind. The abortion tornado has ripped through the country, now first seen in Kansas.

ABORTION ARMAGEDDON: THE POST-ALITO APOCALYPSE

Way back on May 8, 2022, I conclude the blog with the above title with:

Remember what happened the last time the wishes of the Evangelicals were fulfilled? For decades, Protestant evangelicals had rallied for the prohibition of alcohol on a national level. It was not enough that alcohol sometimes was prohibited locally or on Sunday. It needed to be banned everywhere for all times … except for medicinal purposes, of course. Those efforts eventually paid off. That time it was not through the Supreme Court but in an amendment to the Constitution. Welcome to the Roaring Twenties. The amendment soon was reversed in abrupt fashion. The fervor of the religious could not overcome the wishes of the majority of the Americans. Once the law went into effect, everybody was confronted with its meaning and impact and eventually the majority prevailed.

Little did I know it would start to happen so quickly with abortion. Abortion isn’t whether or not Pelosi should go to Taiwan. It is not whether or not we should kill the Al-Qaeda leader or what should we do in Ukraine. Like Prohibition in the 1920s and the draft in the 1960s, it is national issue brought home on the local level, on the personal level. You do not need radio and TV talk show bloviators to see the impact of the abortion decision.

We know that primary turnout usually is small. This enables the extreme crazies more easily to be nominated. But sometimes, just sometimes, there are issues which touch individual people directly. So much so that it causes them to act. Alito cannot suffer the same fate as Brownback, but those who cheered him on can. Who knew that Kansas would become a cutting edge state in the 2022 elections?

RUSH TO LEGISLATE WITHOUT THINKING

Democrats now have a template that can be used against every Republican candidate at the state and federal level in the country. The question to be posed to Republican candidates is a simple one:

WHAT ABOUT THIS …?

In the rush to legislate, the Republicans never took the time to debate the different situations which may occur. Every day another one surfaces. The Republicans stand naked shorn of their slogans. States now are constantly reacting on the fly to the myriad of human circumstances which can arise given the absence of legal abortions in a state. There is no point in listing all the questions raised since the ruling. We are witnessing the live experience of how rabbis created the Talmud as they tried to relate biblical laws to the lives actually led.

The Republican state legislators abandoned their obligation to conduct such debates prior to the passage of the abortion ban legislators. Instead they are being confronted with what their decision devoid of intelligent thought means in the real world. If the Democrats are smart, those Republican legislators and candidates will be confronted every day of the campaign with “What about this ….”

“If we are going to ban abortion, there are things we’ve got to do to make sure the need for abortion is reduced, and that women are not endangered,” said Representative Nancy Mace, Republican of South Carolina.

“What are you going to do to reduce the need?”

Ask every Republican candidate. Every day.

Mace supports expanding access to gynecological and obstetrics care, contraception, including emergency contraception, and the right of women to travel to other states to get an abortion without fear of prosecution. Do you?

Ask every Republican candidate. Every day.

Minnesota Republican gubernatorial candidate Scott Jensen learned he needed to clarify and elaborate his position. Suddenly he supports family and maternity leave program, a $2,500-per-child adoption tax credit, and improving access to birth control. Do you support that?

Ask every Republican candidate. Every day.

For years Republicans were able to get away with calling for the reversal of Obamacare without having an alternate. They do not have that option with state-level abortion.

If you doubt the power of Krakatoa Kansas consider this headline about insurrectionist Pennsylvania gubernatorial candidate Doug Mastriano:

The Republican nominee for governor once called abortion his “No. 1 issue.” Now he says the next governor won’t control abortion policy (Philadelphia Inquirer, 7/28/22).

2022 will be remembered in part for the showdown between Krakatoa Kansas and the Red Wave.        

SCOTUS and Hutchinson: The Howard Baker Moment Has Arrived

July 5, 2022
by Peter Feinman
Gorgan (Courtesy startrek.com)

The Howard Baker moment is here. It has been a longtime coming. It is not an exact repeat of original Howard Baker moment. At that time, a Republican Senator told the Republican President that it was game over and the President resigned. Hard as it may be to believe today, Baker succeeded because he had the votes in the Senate to back him up and Nixon knew it.

The current version is slower. Think of The Apprentice, the fake reality show that rescued the failed businessman from oblivion. There was a time when the show was gangbusters in ratings. “You’re fired” became part of the national discourse. And then it faded. Little by little the show declined. Finally it reached a point where it was past its expiry date like athletes who do not know when to retire. And then it was gone.

The double-dose of SCOTUS on abortion and Hutchinson to the House Select Committee is doing the same. Combined the decision and the testimony mark an inflection point in the political career of Donald Trump. From this point forward it is all downhill and he knows it. Hence the fuss and urgency about announcing his candidacy for 2024 now. It is a desperate attempt by him to regain the momentum which instead will highlight that he is headed in the wrong direction.

TRANSACTIONAL PRESIDENT

During the Trump presidency, we were introduced to a new concept – transactional. It is not the word was new but that its application was. It made a national policy of the President of the United States asking “what’s in for me?” with the “me” vacillating between the country and himself personally.

Now there were no more alliances. You want America to protect you? What’s in it for me? Countries were expected to ante up if they wanted the United States to shoulder the burden of protecting them. Obviously Ukraine was a money loser so if the Russian invasion had occurred on his watch Trump still would have done nothing even if he was not submissive to Putin. His cost-benefit analysis would have calculated that Ukraine was a big drain on American resources so why support it. Keep in mind this was a Commander in Chief who could not understand why people volunteered to serve in the military forces to begin with.

As it turns out, many people who voted for him also had a transactional relationship with him. They knew he was pond scum slime but he was their pond scum slime who could deliver for them. What he most famously could deliver for them was judges in general and Supreme Court judges in particular. Then with the help of Mitch McConnell, he fulfilled this promise. He did appoint people to the Supreme Court who had no qualms about lying directly to the face of Susan Collins and the Senate Judiciary Committee. Seriously how stupid a human being did you have to be not to know that the Trumptees on the Court would reverse Roe v. Wade as soon as they had the opportunity to do so?

The bargain had now been fulfilled and there is nothing left. People who turned a blind eye to the truth of Trump now no longer have to do so. There is nothing else for him to do. We saw the results in Georgia in 2020. The missing 11,780 votes were found and then some. Approximately 28,000 Georgians voted in 2020 and left the presidential line on the ballot blank. These people had decided to hold their noses no more. They would vote Republican but not Trumpican. The Republican voters Trump alienated in Georgia were the reason he lost the state. The Trumpican candidates in the primaries this year in Georgia did not fare well. His hand-picked Senate candidate is not faring well either according to the polls. Being totally unqualified for the job disqualifies him with enough Republican voters to overcome the alleged value of the Trump endorsement. Unfortunately for Democrats this means non-Trump Republican candidates may win in 2022 where Trump-endorsed candidates will lose.

In any event, it is game over for the transactional supporters of Trump. He has nothing left to offer them and has become a laughingstock criminal instead. Fatigue has set in.

THE INSURECTIONIST PRESIDENT

For the insurrectionist president it is only going to get worse. As the “far-left Marxist” Washington Examiner exclaimed, Hutchinson’s testimony “ought to ring the death knell” for Trump’s political future. He is now on record with the House Select Committee as being “unfit to be anywhere near power ever again.” Apparently Hutchinson was able to accomplish what a million dead Americans due to Covid could not – publicly expose the shortcomings and inadequacies of Disinfectant Donny once and for all. From this point forward it will be easy for Democrats to ridicule Trump ceaselessly in ways everyone can understand.

Plus there is more to come. There are people in the White House past and present whom they public does not know. Journalists with their “sources” may know their names, but We the People do not. Now we know who Miles Taylor is. Now we know who Cassidy Hutchinson is. How many more people like them are there? If you are a twenty-something recent college graduate starting your career in politics with internships and paid-positions at the highest level, do you want to sacrifice your future for an insurrectionist? True you may be the recipient of phone calls and threats from Trump goons, but you can endure them. What about your next job? How many analysts can Foxhub hire to explain that January 6 was either ANTIFA or legitimate political discourse?

It is reasonable to expect more and more disclosures about the truth of January 6 in the weeks to come. Some apparently already have happened. Which of the inner circle will be the Michael Cohen of the insurrection? The avalanche has started and will only pick of speed and power in the weeks to come. The only issue for Garland will be when to indict the former president and not if.

This avalanche of truth my carry forth into Congress itself. As staffers come forth to corroborate Hutchinson’s tale of Trump insurrection, closet Republicans who have kept their heads down and swallowed their pride these past five years may suddenly regain their courage. They have been shown up by a 25-year old. I am not suggesting that Mike Pence will finally man up; let’s not get carried away. But some Representatives and Senators will stand up and be counted. After all, after August they cannot be primaried!

What do we have to look forward to?

More revelations.

More indictments.

More disclosures in ongoing Georgia and New York cases

A “Michael Cohen”

By election time, the three Trumigoes in Arizona running on a stolen election campaign mantra will look as absurd as the “abortion is human sacrifice/demons are transferred via intimate sex” secretary of state Republican candidate in Michigan. It is déjà vu 2010 for Republican candidates all over again.

It is possible to even be optimistic that 2024 will not lead to the destruction of America. It is hard to image Ron DeSantis rallying people to the Capital for a coup.

FINALLY

Way back on August 6, 2016, even before the presidential election that year, I wrote a blog about presidential candidates from New York State. In the blog I wrote about a Star Trek episode:

[In] the Children Shall Lead, the children on an outpost are rendered orphans but display no trauma over the horror of losing their parents. The cause is a beast called “Angel” by them and named Gorgan. The richly-costumed sleekly-haired human-looking monster is skilled in exploiting their  pain to service his gain. He dominates them and in the ways of science fiction takes control of the Starship Enterprise.

Not to worry. Kirk’s dedication to the spirit of Star Trek prevails. His hero and role model is, after all, Abraham Lincoln. He takes back his ship. He takes back his crew. He returns the Enterprise to its rightful path. He defeats the monstrosity that has temporarily commandeered them. In the final showdown between the forces of light and the forces of darkness, Kirk calls on the deceived children to see the ugliness of the monster who led them astray. He tells them:

Without you children he’s nothing.
The evil remains within him.
Look how ugly he really is.
Look at him and don’t be afraid.

With each phrase, the children see more and more of the truth and the image of the monster becomes uglier and uglier. In the end, Gorgan is revealed as the grotesque monster he always was underneath his superficial exterior. As befitting his debased nature, when exposed for the disgusting ugly incarnation of evil that he is, his parting words to his former admirers who now spurn him are:

Death to you all!
Death to you all!
Death to you all!

Thank you Liz Cheney and Cassidy Hutchinson. That moment of exposing the truth for all America to see has arrived.

Ketchup on the wall
Dishes on the floor
Grab the wheel
Grab the throat.
Rambo?

Should the Supreme Court Legislate?

June 1, 2022
by Peter Feinman
The Building Where It Happens (Joe Ravi)

The United States famously has a tripartite system of government. We have three branches of the government: legislature, executive, and judicial. Naturally there are going to be areas of overlap and issues about not overstepping one’s domain and intruding into the realm of another branch. That being said, it is the legislative actions of the Supreme Court that frequently are the most disruptive. Such transgressions are magnified when they touch upon the lives of individual Americans.

There have been three major intrusions into the lives of individual Americans in the 20th century which I wish to address. Two are due to the Supreme Court and one by We the People ourselves. In these examples, we are not dealing with the war in Ukraine, tariffs, or even wages. Instead, the focus is on when daily life is disrupted as result of government action. In all three examples, the intrusion backfired and the law of unexpected consequences kicked in. In one case, we resolved the intrusion and moved on. In the other two cases, the disruptions are unresolved and continue to wreak havoc with the social fabric.

PROHIBITION 

The amendment to the Constitution prohibiting the consumption (sale) of alcohol was a longtime coming. For decades people including female evangelical (Methodists) who could not even vote advocated on behalf of prohibition. The action was both at the state level and the national. Elections could be won or lost based on the candidate’s position on the prohibition of alcohol.

State by state, the prohibition forces prevailed until at last the magic number required for ratification was reached. Then at last and to the great joy and satisfaction of the proponents, prohibition became the law of the land.

Prohibition was a different type of amendment. It was not one asserting a right as so many in the Bill of Rights do. It was not some procedural issue regarding elections. In a sense one could say its precedent was the prohibition against slavery, but even that was a legal condition which could be countered by Jim Crow. Prohibition, as befitting its religious origin was more like the apodictic commandments from Sinai: THOU SHALT NOT DRINK ALCOHOL!

This secular commandment reached right into the homes of every American. It touched the lives of people as individuals. And, of course, it did not work. It did not banish alcoholic consumption from American life. Quite the contrary, it forced it underground. From the stills in the backwoods of the rural South to the speakeasies of the urban North, alcohol did not disappear. One result was the growth of organized crime, aka the Mafia, certainly an unintended consequence.

The failings of the prohibition were readily apparent. The result was a reaction against it with a new amendment that was ratified at warp speed. One lesson to be learned was to be very careful when you muck around with the daily lives of individual Americans. It was a lesson not learned.

SCHOOL BUSING

The Supreme Court failed to heed that lesson. The Supreme Court ruling prohibiting separate-but-equal as a guiding principle for schools continues to affect Americans to this very day. On the one hand, the Court made a judicial ruling about a particular doctrine as being unconstitutional. On the other hand, the Court then mandated a remedy to the situation which actually was a form of legislation. The legislative solution was arrived at without public participation. It did not follow the normal political discourse which would have occurred if the Court had turned to Congress with instructions to write a law reflecting the principles of the judicial decision. Instead it decreed a solution. Are we today where the Court wanted us to be when it legislated the solution nearly 70 years ago?

Obviously not.  There are many powerful and moving stories to tell about the positive impact of desegregation. Remember the Titans. There also have been many unintended consequences of the decision to exploit the most vulnerable people in society, children, to achieve some social objection (The Law of Unintended Consequences: From Abortion to Voter Suppression). Suffice it to say that this attempt at social engineering failed just as Prohibition had only three decades earlier. The United States still pays a price for the dislocations and unraveling of the social fabric wrought but this high-minded and poorly thought out intrusion into the homes of Americans.

The decision also changed the position of the Supreme Court in American society. With prohibition, We the People had inflicted the change on ourselves. Therefore We the People were able to remedy the problem ourselves. With school busing, the decision had been made a group of nine people acting in secret and beyond the direct reach of We the People. Now these unelected people could tell us what we could and could not do right in our own immediate lives. Think of all the ways (white) people since developed to negate the ruling (The Law of Unintended Consequences: From Abortion to Voter Suppression). So much effort, energy, and money that was not used to create quality schools in every community.

The current political controversies on CRT and 1619 follow a longstanding fight on the control of local schools from the teaching or not teaching of evolution to how we teach the Civil War of Northern Aggression. The farther removed from our direct political control the decision makers are, the greater the danger of enraging the individuals effected … and the greater the likelihood of unintended consequences when decisions are not openly arrived at by elected representatives. The Supreme Court battles over national legislation in the 1930s now had become localized. With school busing, you did not need someone to explain to you how you would be effected, you could see with your own eyes.

Think of how different America would be today, if the Supreme Court had legislated that every community had the right to quality schools instead of forcing busing. The Court effectively red-lined school districts. There were areas of substandard housing, substandard schools, inadequate parks, inadequate public pools, inadequate libraries, and on it goes. Think of how teachers and principals in the red-lined districts had their careers short-circuited because they now could be overlooked in the new racist configuration. Think of the local role models for the young which were lost. But the Court knew best and it wreaked havoc with America instead.

ABORTION

With abortion, once again the Supreme Court decided to make it personal. Again, the Court made a decision on a legal principle, this time the previously unknown right to privacy. It then took it upon itself to legislate how that right was to be implemented. Again it did it all by itself without any public discussion. Again it mandated the implementation.

Even if you accept the idea that there is a constitutional right to abortion, it does not automatically follow that the trimester time frame is the one and only way to legislate the application of a solution. When the Supreme Court selected one particular method to implement its decision, it overstepped its bounds. While the Supreme Court may have monopoly power on deciding judicial principles, it has no legislative power to implement such decisions unless there is one and only one way to do so. If multiple options are possible, then the legislative authority defers to Congress. The issue here is not whether or not the Supreme Court is correct about the Constitutionality of the right to abortion, but whether or not it has the right to legislate a solution. The Court can rule on individual cases involving freedom of speech, freedom of the press, freedom of religion, and the right to assemble; it has no right to write the legislation defining those freedoms. That is for Congress to do.

Right now we are experiencing a case study in the shortcomings of secret decisions secretly arrived at. Look at the reaction to the leaked Alito draft. The responses to it demonstrate the kind of political discussion which can occur when matters are publicly deliberated. Will people be tried for murder? Will people be tried as accessories to murder? Will pregnant women at airports be tracked for their pregnancy when they return? What other presumed rights will be affected? No one knows.

Do you think the Supreme Court discussed/debated the concerns which have been raised in the public arena since the Alito draft was leaked? Doubtful? Now the Supreme Court Judges whether they wanted it or not have had the opportunity to hear the debate on its proposed abortion ruling that it otherwise would have missed. The remaining question is what, if any effect, will it have on them.

Abortion and Gun Control: Democrats Bring a Plastic Spoon to a Gunfight and Wonder Why They Lose

May 27, 2022
by Peter Feinman
How quickly Democrats forget

Democrats bring a plastic spoon to a gunfight and wonder why they lose. About a decade ago, Republicans referred to themselves as the “party of stupid.” Now we see that Democrats are equally stupid. They strongly believe in the old adage about insanity being keep doing what has failed time and time again in the past and hope for better results this time. The Democratic ineptitude has consequences. It does not bode well for the two current culture war issues now raging across the control – guns control and abortion.

PASS THE GOVERNOR GREGG ABBOTT MENTAL HEALTH LAW    

After the latest assault on America’s children at school, Governor Greg Abbott had a ready-made explanation for the carnage:

I asked the sheriff and others an open-ended question and got the same answer from the sheriff as well as from the mayor of Uvalde. The question was, what is the problem here? And they were straightforward and emphatic. They said … ‘we have a problem with mental health illness in this community.’ And then they elaborated on the magnitude of the mental health challenges that they are facing in the community and the need for more mental health support in this region.

For Republicans, this explanation is an excellent way to deflect attention from guns and to place it with the mentally-ill shooter. According to this approach, since the problem is not guns, there is no need for any changes in gun-control regulations. So if Senator Murphy (CT) wants to deliver another impassioned speech on the floor of the Senate, he is free do so. What difference does it make?

Suppose Senator Murphy proposed the Gregg Abbott Mental Health Law instead. Suppose Democrats made a campaign point of using the mental-health excuses made by the Republicans over the years. Instead of proposing a gun control law, propose a mental health law. It might not accomplish everything they want but look at what it could do:

1. implement a nationwide detecting system to identify the people with mental illness as it is a problem identified by Republicans as a cause for mass murders
2. develop nationwide treatment programs so people with mental illness receive the treatment they need and do not become mass murders
3. prevent people identified as mentally ill from having access to weapons of mass destructions so they cannot murder their own family members, children, or anyone else.

The Gregg Abbott Mental Health Law will not solve all the problems, but it would make a difference. Of course, the party of stupid would rather keep banging its head against the wall and hope the wall gives way before their head does.

PASS THE JUDGE SAMUEL ALITO ABORTION PREVENTION LAW

The exact same thinking applies with abortion. Democrats are far more content passing symbolic legislation than stopping being the party of stupid. Their ineptitude prevents them from seeing the opportunity staring them right in the face. Just as Governor Abbott has shown Democrats a way to move forward, so has Judge Alito.

How many people grow up wanting to have an abortion?

How many daughters say, “Mommy, Mommy, I can’t wait until I grow up so I can have an abortion just as you did”?

The odds are that no grows up wanting to have an abortion. Then something happens. Suddenly women decide to do something that they never expressed any desire to do. Why? The purpose of this blog is not to identify the reasons why women who did not grow wanting to have an abortion then decide they do want to. It is to call attention to the fact that there are such reasons. People probably know what they are and can list them.

Once the diagnosis is made, then steps can be taken to minimize the chances that the women will chose to have an abortion. Perhaps she would not become pregnant in the first place? Whatever the reasons, they can be diagnosed. Then remedies can be proposed. The Judge Samuel Alito Abortion Prevention Law will not eliminate all the women who want to have an abortion, but it can significantly reduce the number of women who will even consider it in the first place.

So instead of proposing a federal law that will never be passed, try proposing the Judge Samuel Alito Abortion Prevention Law.

PASS THE JUDGE CLARENCE THOMAS CHILD RELIEF LAW

Here is the third bill the party of stupid should propose. I suspect that everyone would agree that it is better for a child to be in a loving family then one that is not. It is better the child to be with a mother that wants the child than one who does not. It is better for a child to be with a mother who can care for the child then one who cannot. For example, reasons a pregnant woman might consider having an abortion is by anticipating not having the needed child care support, not being able to spend the needed time with child, not having access to health care the child needs. I am sure Judge Clarence Thomas does not want to punish the child for the actions of the mother.

The Judge Clarence Thomas Child Relief Law would be designed to help ensure that no child brought to term is unwanted, that no child brought to term is dropped off at the nearest fire station, that no child brought to term is prevented from having the opportunity to live the American Dream because it is unwanted. The Judge Clarence Thomas Child Relief Law would commit the country to ensure as best is possible the peace of mind for the mother knowing that the child is going to be cared for, remain in her custody, and have a chance at living a happy life.

Obviously Republicans will not support the

Gregg Abbott Mental Illness Law
Samuel Alito Abortion Prevention Law
Clarence Thomas Child Relief Law.

They will not support it because they do not give a damn about these issues no matter how many children are murdered, abandoned, or have lives of misery. The difference now is that once the laws are proposed they will have to admit it.

Obviously also the Democrats will not propose these laws. I am a nobody. My blogs do not go viral. This blog makes no difference except for the satisfaction I get from writing it. The party of stupid will never think outside the box. It will keep bringing a plastic spoon to a gunfight no matter how many children are massacred, unwanted, or aborted.

Abortion Armageddon: The Post-Alito Apocalypse

May 8, 2022
by Peter Feinman

Even before the Supreme Court has issued its verdict on the most recent abortion case, its leaked draft already is “Krakatoa, East of Java.” The draft has had an immediate impact in disrupting the political arena as well as the life of untold millions. We are just in the beginning stages of the latest abortion irruption so it still remains to be seen how the decision will unfold. In the meantime, what if anything can be known or suggested about what is to come?

SUPREME COURT FREEDOM OF CHOICE

Speaking as a non-lawyer, my understanding of the choices facing the Supreme Court are/were:

1. Support abortion and claim the Constitution does too
2. Support abortion but claim the Constitution does not address it
3. Oppose abortion and claim the Constitution does not address it
4. Oppose abortion and claim the Constitution prohibits it.

Given these choices, the Supreme Courts have chosen two different options. The original decision by the Court was Option 1. As a result there has been a proclaimed constitutional right to abortion for the past 50 years.

The new Court decision based on the leaked opinion is that the original Court decision for Option 1 was in error and there was not and is not a constitutional right to abortion. Instead the Court has chosen Option 3. The result will be the issue is remanded to the states, all 50 of them, to decide on their own.

For some people, that decision is not enough. They want a nation-wide ban of abortion to be accomplished through federal legislation. Most likely this means that the people who opposed the federal mask mandates:

NO SOCIALISM
NO SLAVERY
NO FASCISM
NO TYRANNY
NO GAZPACHO

now will support an intrusion into the body of a woman that they would not accept on the face of a person. While the prospects of such a law are nil in the present Congress, who knows what the future will bring starting with the next House of Representatives.

BE CAREFUL WHAT YOU WISH FOR

People have a habit of not thinking things through. They go for the immediate short-term gain without considering the consequences. To be fair, sometimes it is difficult if not impossible to recognize all the possible outcomes of a given decision. Science fiction abounds in alternate realities generated by the different possible scenarios derived from a single decision. One of the more common examples is when the magic genie appears to grant you three wishes. No matter how carefully you try, the wish always backfires.

Consider the two very recent examples by the two Trumpican presidential candidate wannabees. In Texas, the Governor has tried to make the border his path to greater political office. He would build a wall there with Texas taxpayer money. He would dispatch Texan military forces to patrol the border. Then he decided on his best stunt ever: he would establish a “blockade” on vehicles (trucks) entering Texas from Mexico.

His stunt immediately blew up in his face. He did not think the issue through. It was a sudden decision devoid of preparation. The results were exactly what anyone who thought about it would have predicted – LINES, LONG LINES, VERY LONG LINES. Long lines involving perishable items. Long lines involving medicine. Long lines involving vehicles running on a limited supply (tankful or less) of gas. Long lines of enraged people. What a great way to prove one’s worthiness to be Commander in Chief. Let’s see if the Governor of Florida can top that!

Sure enough in the “I am the better Trump” contest, the Florida Governor responded with his Disney ploy. As payback for Disney daring to defy the would-be 2024 presidential candidate’s action, the Governor responded in adult fashion with “Oh, yeah! Oh, yeah! Oh, yeah! I’ll show you who is boss.” He thereupon took away Disney’s self-governing status and passed the huge tax-buck onto the surrounding counties which now have to pick up the tab. Fortunately for those counties, the Governor’s action may not be legal since it requires legislative approval. Thus the biggest Florida state tax increase may be averted.

These examples illustrate the truism of unintended consequences. After decades of clamoring for the reversal of Roe v. Wade, the dog chasing the car finally caught it. Now what?

SUPPOSE THE ALITO DECISION HAD BEEN FIRST

First, let’s engage in a hypothetical. Suppose the Alito decision had been the decision of the Court in the original Roe v. Wade case, what would have happened then? Obviously there is no way to know for sure but some actions seem likely.

1. States would have proceeded to pass their own laws much as they have been doing and will do based on the expected ruling.

2. There would have been an effort to pass a privacy amendment to the Constitution. Given the widespread use of surveillance cameras and the intrusions of Big Tech, such an amendment is needed now more than ever. It is not enough to rely on judges inhaling vaporous emanations from the Constitution to pass legislation. We still need such an amendment.

3. Supreme Court ratifications would be more civil. Since the abortion decision had been remanded to the states, the rancor over Supreme Court approvals would have diminished. There would have been no need to hold a vacancy open for months on end. There would have been no need to rush an approval through either. There would have been no need for Senators to carry on like crazy people posturing for the infamous base. Candidates would not have had to lie to Senators. Just think, the reversal is due to three liars and a fourth judge who should have recused himself on 1/6-related cases because his wife is a co-conspirator.

4. People would not have had to hold their nose when voting for a President because of the desire to have the winner appoint judges who would reverse Roe v. Wade.

Politics in the United States would have been much different these last 50 years if so much of it was not viewed through the prism of abortion.

UNINTENDED CONSEQUENCES

The list of unintended consequences is only beginning to emerge.

1. When does child support start?
2. When can you take a child deduction for taxes?
3. Can you deport a pregnant woman or will citizenship be based on where conception occurred?
4. What happens in cases of assault and/or abuse if person-fetus is harmed?
5. What happens in cases of assault and/or abuse if the person-fetus is murdered?
6. What happens if the mother smokes, drinks, or uses drugs and risks the health of person-fetus?
7. What happens in the multiple test-tube fertilizations when the excess is discarded? Who will be charged with murder?
8. What other prohibitions will be sought as medical technology continues to develop alternate means of achieving the same ends of an abortion without technically having one? Will mail be searched or prohibited? Will out-of-state travel be restricted? Will states have to build a wall to prevent travel?

Think of what happened when Covid-is-a-hoax and the vaccine-is worse-than-the-disease people then died of Covid. What happens when unwanted pregnancies occur in anti-abortion families? What happens when the women who men are trying to control have an unwanted pregnancy and decide they want an abortion? To the best of my knowledge there are no state laws asserting that no woman can have an unwanted pregnancy just as the body cannot prevent a pregnancy due to rape. What will those pregnant women then do? Will the first words of the mother upon giving birth be “Where is the nearest fire station?” How much time will be allowed before maternity wards release the unwanted baby? Are fire stations going to be redesigned with drop-off receptacles for the unwanted babies? Will those receptacles be subject to the same security rules and restrictions as drop-off voting bins? So many questions. So few answers.

Remember what happened the last time the wishes of the Evangelicals were fulfilled? For decades, Protestant evangelicals had rallied for the prohibition of alcohol on a national level. It was not enough that alcohol sometimes was prohibited locally or on Sunday. It needed to be banned everywhere for all times … except for medicinal purposes, of course. Those efforts eventually paid off. That time it was not through the Supreme Court but in an amendment to the Constitution. Welcome to the Roaring Twenties. The amendment soon was reversed in abrupt fashion. The fervor of the religious could not overcome the wishes of the majority of the Americans. Once the law went into effect, everybody was confronted with its meaning and impact and eventually the majority prevailed.

The Law of Unintended Consequences: From Abortion to Voter Suppression

December 5, 2021
by Peter Feinman
Lee Sauer (https://www.medaxiom.com)

The Law of Unintended Consequences is one of the most powerful laws in human society. It is the law that informs us that we are not God or gods. It tells us that we do not know what the future will be even if we try to discern it and especially when we do not even try. It manifests itself quite clearly in the decisions made in Washington which then have unexpected effects for years and decades to come.

In this post, I address some examples of this phenomenon at work.

SCHOOL BUSING

The Supreme Court ruling prohibiting separate-but-equal as a guiding principle for schools continues to affect Americans to this very day. On the one hand, the Court made a judicial ruling about a particular doctrine as being unconstitutional. On the other hand, the Court then mandated a remedy to the situation which actually was a form of legislation. The legislative solution was arrived at without public participation. It did not follow the normal political discourse which would have occurred if he Court had turned to Congress with instructions to write a law reflecting the principles of the judicial decision. Instead it decreed a solution. Are we today where the Court wanted us to be when it legislated the solution nearly 70 years ago?

The Court did not address the following in its school ruling:

1 the continued existence of segregated neighborhoods
2 the continuing disparities in school funding based on local taxes
3 racism.

What the Court did do was to exploit the most vulnerable members of the community, children, by ordering them to be removed from their neighborhoods and communities and bused to neighborhoods and communities that did not want them.

To the surprise of no one who stopped to think about this legislative decision on how to live according to a legal principle, the Court mandate was not well received. Over time, people developed ways to game the system as one should have expected.

1 new primarily white municipalities were created
2 new primarily white private schools were created
3 chartered schools developed as a new concept
4 magnet schools were created to separate white students
5 support for property taxes for public schools declined
6 it was accepted that quality schools in every neighborhood was not a goal.

I am not suggesting that any legislation to end school segregation would have worked. I am suggesting that abandoning the concept of quality schools in every neighborhood contributed to having schools with tainted water, rats and cockroaches, inadequate supplies, and inferior technological resources. While all of this could not be anticipated the Court had the recent experience of Prohibition to remind them of the limits of a law on changing behavior. Imagine how different public education would be if the Supreme Court had mandated standards in the physical infrastructure of neighborhood schools.

CIVIL RIGHTS

By contrast, civil rights legislation including voting occurred in public and not in secrecy. In this case, Congress passed legislation with specific goals in mind. The law of unintended consequences did not apply here. President Johnson knew exactly what would happen once these laws were passed – Confederates would leave the Democratic Party and become Republicans. Johnson was exactly right. Confederates remain Republicans to this very day. Lee is a more revered figure to many in the Republican Party, than Lincoln.

ABORTION

With abortion, the Supreme Court followed the same scenario it had in the school busing decision. The Court made a decision on a legal principle, this time the previously unknown right to privacy. It then took it upon itself to legislate how that right was to be implemented. Again it did it all by itself without any public discussion. Again it mandated the implementation.

This time the outcry was even worse than with school busing. Here we are 50 years later and that Supreme Court decision dominates politics. Off hand, I cannot recall another Supreme Court decision that has had the staying power of the abortion decision to remain so important in the American political arena. It is hard to imagine that when the Judges ruled on abortion decades ago that they thought it would remain a sustaining issue for as long as it hand.

Abortion and school busing share some actions in common.

1 The trimester and busing solutions pronounced were not necessarily the one and only way to fulfill the legal principles enunciated in the case – when more than one solution is possible, the resolution should be done through the legislature and not the court.
2 The solution was decided upon in secret without public participation.
3 Opponents have tried to game the system ever since it was rendered.

It also is highly unlikely that Supreme Court Judges anticipated the change in technologies which have occurred. It is highly unlikely that Supreme Court Judges anticipated debating the merits of 6 weeks versus 15 weeks versus 24 weeks as a legal issue. Is that really why they went to law school?

Even with the Supreme Court ruling(s), the options available vary widely from state to state.

In addition, there is more and more awareness now that the issue for many abortion opponents is not about the sanctity of life but the control of women.

OBAMACARE

The effects of Obamacare extend far beyond healthcare. It is comparatively easy to determine the number of people who have benefited from the enlarged health care provisions. The difference is especially notable when contrasting states which have accepted the Medicaid expansion and those which have not. There is no doubt that strictly from a healthcare perspective, Obamacare rates as a positive piece of legislation.

However life is not all healthcare. Imagine for a moment that the legislation had been passed not in 2009 but in 2011 or 20213 or 2015. See the difference? Johnson foresaw the political consequences of the passage of civil rights legislation; Obama did not foresee the political consequences of passing the health care legislation. The political consequences of that legislation continue to disrupt American politics to this very day and likely will until 2030 if not beyond.

The reason is 2010. A census was conducted in 2010 just as it was in 2020. Based on the census, the number of Congressional electors is reallocated among the states. Within each state, the federal and state legislative districts are then redrawn as well. It is a time of gerrymandering where political parties slice and dice the electorate to maximize their control of the legislature. For Democrats, the 2010 elections were a disaster of catastrophic proportions. While all the results cannot be attributed to Obamacare, there is no doubt that the 2010 election greatly aided the Republican Party in asserting its control over many state legislatures. Democrats can still win state-wide elections for Governor or Senator in those states, but it would take a tsunami to end Republican control in the state legislatures.

How do you measure the cost of the benefit of healthcare versus the loss of state legislatures? Johnson knew the Democrats were going to lose and decided the merits of civil rights outweighed the political loss of the Confederate vote. Would Obama still have supported Obamacare right out the box (while Ted Kennedy was still alive), if he had known the political consequences?

Unfortunately for Democrats, the situation is even worse for Democrats following the 2020 census. Despite the changes in population and the demographics, Republicans rule in more state legislatures than Democrats. It is becoming increasingly more difficult to have battleground Congressional districts. They still exist but their numbers dwindle.

What makes the situation worse for Democrats, is that the rules of the game have change. It is not just about gerrymandering now. There is voter suppression. There are compliant Secretaries of State who are obedient to a candidate and not to the Constitution or the rule of law. There are changes in voting rules empowering state legislatures to select electors instead of leaving it to the people. The list of restrictions to determine the desired outcome continues with even more laws promised in 2022 to ensure that only Trumpican candidates prevail with there being little the Democrats can do about it. The changed environment means the country is on 2010 with steroids. Democratic governors are fighting state legislatures that have had non-Democratic majorities since 2010. This too is part of the cost of Obamacare.

We may not even have to wait for 2024 to have electoral chaos.

I don’t know if the math exists to calculate the benefits from Obamacare versus the costs of Donald Trump.

Soon there will be another round of unintended consequences. The decades long quest by the anti-abortion forces finally will prevail just as the Temperance movement eventually had an amendment passed. What will happen then?

On January 6, Trumpican insurrectionists said if they could not rely on the Supreme Court then they had no choice but to take matters into their own hands. By 2024, both sides in America’s Third Civil War may feel the same way.