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Abortion Armageddon: The Post-Alito Apocalypse

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

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.