Cogito Ergo Non Serviam
Supreme Court Salami Tactics Will Erode Abortion Rights
The Supreme Court of the United States (the least talented politicians in Washington) heard oral arguments yesterday over a Mississippi law that bans all abortions in the state at 15 weeks. The precedent set in Roe v Wade is 24 weeks. On the face of it, the Mississippi law is unconstitutional, but the Supreme Court is not really concerned about anything more than the political agenda of its majority. They will find the Mississippi law is perfectly acceptable without actually saying that they are repealing the earlier case.
SCOTUS desperately wants to be seen to be above politics. This is, of course, stupid. They are political appointees chosen by the president and confirmed by the US Senate. It is impossible for them to be anything except political creatures. But appearances matter, and the court will get away with more if it is thought to be a supra-political entity.
As Justice Sotomayor put it "Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? I don't see how it is possible." It is not possible, but they are going to try.
A majority of Americans (about 70% in fact) are content with the way things are right now. To empower the minority, the Supreme Court will never go so far as to overturn Roe. They will engage in "salami tactics," taking the status quo apart one slice at a time, until it is too late to resist.
The key to making the fudge the justices seem bent on producing is doing something while claiming to be upholding it. It's a Stalinist thing. The Supreme Court will claim to be upholding Roe v Wade when it decides 15 weeks is an acceptable limit rather than 24. They are likely to find that the 24-week limit was underpinned by the idea of viability. Until the fetus is viable, the mother has the right to end the pregnancy. Once the fetus is viable, the state's interest in having a new taxpayer trumps the mother's rights.
Nothing has changed since Roe was decided except for the ability of neo-natal medicine to keep a premature baby alive and to grow into a healthy kid. The youngest premature kid ever born who survived came into the world at 21 weeks. So, there is a scientific argument that 24 weeks is not the beginning of viability. Although, it doesn't prove 15 weeks is viable. But the court is made up of lawyers not scientists. They will accept that 24 weeks is obsolete, a limit from an earlier time rendered irrelevant by medical progress.
Rather than set a new national standard, the 6 conservatives on the bench will decide that the states should be the arbiters of such a standard. They will scrap 24 weeks as too long given science, and they will let the states set their own rules. These rules will be subject to judicial review, but at that stage, the Supreme Court is off the hook for whatever the new rules become.
So, the court will make the new limit 15 weeks while allowing states to pick their own numbers. After all, if 15 weeks is the limit, how is 14 weeks different? Or 13, or 12, or 10? Week by week, slice by slice, the minority will use gerrymandered state legislatures to reduce the standard. The court will only throw up objections when the new limit puts people in the streets burning buildings.
Only Congress can stop them. Congress can, and it doesn't need a filibuster-proof majority. Funding Medicare and Medicaid can be done under the reconciliation rules. So, any state that does not allow abortions at 24 weeks can be denied funding for its medical programs. The pain would force change. Congress lacks the will, but it has the power.
© Copyright 2021 by The Kensington Review, Jeff Myhre, PhD, Editor. No part of this publication may be reproduced without written consent. Produced using Ubuntu Linux.
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