How the SCOTUS abortion decision may impact the medical freedom debate
A plea to uphold personal sovereignty via a middle path compromise
This is one of those articles that I’m scared to write, so that means that I have to write it. Few people will like it. It will likely cost me money and reach as some beloved readers may unsubscribe. But I believe that my readers want to read an original voice not constrained by existing ideological categories. Furthermore, I believe that we can have difficult conversations and disagree. Plus I always learn something even (especially) when I get ratio’d in the comments.
This is not an article in favor of or opposed to abortion per se. It’s about the unintended consequences of seemingly simple decisions.
I continue to be underwhelmed by the quality of the thinking emanating from the U.S. Supreme Court (SCOTUS). I wrote about this at length back in January when SCOTUS was deciding the OSHA and CMS mandate cases.
As I pointed out at the time, SCOTUS had a chance to reaffirm the Constitutional right to bodily sovereignty (as contained in the 4th and 13th Amendments) but instead decided the case on narrow statutory grounds — arguing that the statutes governing OSHA do not allow vaccine mandates but the statutes governing CMS somehow do (the equal protection clause of the 14th Amendment be damned apparently).
I argued that perhaps the conservative majority on the Supreme Court did not want to affirm the Constitutional right to bodily sovereignty because that would interfere with the upcoming abortion decisions in connection with the Mississippi (Dobbs v. Jackson Women’s Health Organization) and Texas (Whole Woman’s Health v. Jackson) cases.
It turned out that I was right and the recently leaked Alito opinion confirms that.
I am a single issue medical freedom voter. I am weighing in on the Alito opinion because it impacts the medical freedom debate. We were on the verge of a massive landslide victory in November and the Alito opinion likely costs us the independent votes that we need to retake the Congress. Our base was energized and now their base is energized and it’s anyone’s guess how the November elections will turn out.
I think there is a way forward, but the Alito opinion is not it.
I feel like the Pro-Life movement won the debate about moving Roe back from 24 weeks to 15 weeks. And they won it with an Op Ed in the NY Times that pointed out that most doctors, and many developed countries, refuse to perform abortions after 15 weeks because it’s just too gruesome. So there is something about that point — 15 weeks — that has become a medical and moral no-go zone even for people who generally support abortion rights. I get that abortions after 15 weeks are rare and usually involve a range of other considerations (abnormalities of the fetus, health of the mother) so the law as it stands right now is designed to give discretion to doctors and patients in these unusual cases.
It is beyond problematic that Democrats spent two years arguing that there is no constitutional right to bodily autonomy in connection with vaccine mandates. Now it is nearly impossible to for them to build a majoritarian political coalition because people hate the hypocrisy of ‘rules for thee but not for me.’
Adding to the absurdity, Democrats, after fighting for women’s rights for a century, no longer believe in biological sex, it’s all gender now, so they no longer even have a coherent vocabulary for discussing these matters with the general public. Good luck trying to defend, “a birthing person’s right to choose.”
I should also note that because of the HPV shots and Covid-19 shots that impair fertility, the birth rate will continue to decline and most pregnancies in the future will be intended and facilitated by very expensive fertility clinics. So the abortion debate is about a smaller and smaller number of unwanted pregnancies each year.
SCOTUS still has options. It seems to me that SCOTUS could uphold the Constitutional right to personal sovereignty, but allow the Mississippi law banning abortion after 15 weeks to go into effect, based on the argument that at 15 weeks the fetus now has a Constitutional right to bodily sovereignty as well. I think most Americans would accept that decision.
My hunch is that Chief Justice Roberts was and is trying to engineer such a compromise (upholding Mississippi, 15 weeks, stare decisis, and Roe, but striking down Texas, 6 weeks, overturning precedent, and vigilante justice).
If the Pro-Life movement wants to move the prohibition on abortion back to 8 weeks or 6 weeks or even conception, they should have to win that argument on the merits in the court of public opinion. They have not won that debate yet in the eyes of most Americans.
The Alito opinion repeats the same mistake from the OSHA and CMS cases — namely, the conservative majority is focused only on the question of which institution gets to decide, rather than the scientific merits of the argument itself (which they sidestep) or the Constitutional rights of the individual (which they once again ignore). The Alito opinion declares that states get to decide the question of abortion.
Regardless of how you feel about abortion, I believe that this is unworkable in practice.
If the Alito opinion becomes the SCOTUS majority decision in June, 13 states have trigger laws that will automatically go into effect banning abortion at various stages. 13 other states will soon follow suit. Many will ban abortion at 6 weeks, others will ban abortion from conception, and some will ban certain forms of birth control on the grounds that they are abortifacients.
Here’s why that’s unworkable in practice:
Imagine, six months after the SCOTUS decision, an 18 year old woman from Texas wants to travel to California to visit a friend. She’s at the airport in Austin. In California, abortion is legal. In Texas it is not. The question becomes, is she traveling to visit a friend, or traveling to have an abortion?
What would prevent any state from setting up checkpoints at all airports and all roads to neighboring states to verify that women of child bearing age are not in fact pregnant and traveling for the purposes of abortion? Vaccine passport systems can easily be converted to pregnancy passports and the woman could be forced to show proof of a negative pregnancy test within 24 hours of travel (as happens now with Covid-19 tests).
Now imagine she actually does get an abortion in California. In California she received a constitutionally protected healthcare procedure. In Texas she is a murderer. So is the woman first and foremost a citizen of the United States or a citizen of Texas? When her plane returns to Austin, will she be arrested at the airport for murder?
The Alito strategy — to leave this matter to the states — cannot be reconciled with the equal protection clause of the 14th Amendment that requires that this woman be treated the same, in the eyes of the law, whether she is in Texas or in California.
The vigilante enforcement mechanism of the Texas abortion law deputizes ordinary citizens anywhere in the country to monitor and track women in Texas for this sort of violation. As we speak right now, abortion opponents are buying the data from period tracking apps (used by one-third of all American women) for the purpose of identifying women who might be pregnant and possibly planning an abortion. What is more, in states where abortion is considered murder, fertility and period tracking apps can and will be subpoenaed by law enforcement to see if an abortion may have taken place. Women will live under a cloud of suspicion for the entire length of their childbearing years (first period until menopause). Heaven help any red state woman with an irregular period, controlling spouse/partner, or fondness for travel.
Furthermore, it seems to me that a country cannot have two completely different definitions of murder and still hope to survive as a union. By throwing the matter back to the states — rather than deciding the case on the scientific or Constitutional merits — a majority of states (26) will have one definition of murder, but 24 states and the majority of the population will have a completely different definition of murder. That’s not sustainable.
The Alito opinion, as it is currently written, almost guarantees partition and the eventual dissolution of the United States of America.
My point is that vaccine mandates and bans on abortion, regardless of how one feels about vaccines or abortion, are so unwieldy in practice, that they require totalitarianism in order to enforce them. And totalitarianism is always unacceptable. I think a political party would thrive that puts forward the idea that everyone has a right to bodily sovereignty, including fetuses at 15 weeks. By the way, vaccines during pregnancy would be prohibited after 15 weeks too.
The right to be secure in our persons (4th Amendment) is the difference between liberty and tyranny.
The 13th Amendment also makes clear that one cannot own the body of another and these extreme measures of control (whether trespassing through injection or limiting travel in connection with abortion) appear to violate that standard.
If one really likes vaccines, great, try to persuade others.
If one really hates abortion, great, try to persuade others.
It’s when we say, “you must think and act like me,” that we get into trouble.
Democrats want to own everyone’s body (so that they can sell them back to Pharma to keep those campaign contributions going to the Party). And Republicans want to own the bodies of women of reproductive age lest they be tempted to travel to states that allow wholesale murder.
If the Alito opinion becomes the majority decision then independents (who make up about one-third of the electorate) will go back to voting for Democrats — who will see their re-election as a green light for more forced injections of the American people. My belief is that the United States cannot survive two more years of a Democratic Congress that allows genocidal misconduct by Pharma, the FDA, and CDC.
So I believe that, in order to save the union, Chief Justice Roberts must engineer a compromise that upholds Mississippi, moves abortion back to 15 weeks, while still upholding the right to bodily sovereignty and NOT throwing this matter back to the states. Constitutional matters must be decided by the court that has jurisdiction over Constitutional interpretation. If Roberts does that then we win the midterm elections, stop vaccine mandates once and for all, and begin cleaning house at the FDA and CDC. And rather than being consumed by civil war, SCOTUS can hear cases, and we can debate as a nation, whether earlier bans are merited or not.
Honestly, writing this now (and thinking about how I’m going to get ratio’d in the comments) I feel like the dissolution of the United States is inevitable. I have this acquaintance/friend from Australia who often replies to my Facebook posts, “Will you people [Americans] just start your civil war already!” The views of the different camps are fundamental and irreconcilable.
My problem is that by July, I will not want to live in either blue states nor red states because I would be troubled by the totalitarian impulses in both places. This is an attempt to find a middle way (which I usually reject on the grounds that a middle way satisfies no one).
So anyway, blessings to you all, and I look forward to learning from you in the comments.
Confused (although I agree with all you say) ... does leaving abortion up to the states mean that a state can make performing / receiving abortions *in that state* illegal, but would not make it a crime to travel to another state and receive an abortions? (Or is that the potential slippery slope that could happen?)
wrong... a life is a life is a life ....all life is sacred and MUST be protected from conception to natural death