Arnon Grunberg

Entirety

Highways

On indictments – Linda greenhouse in NYT:

‘For the court to decide to take on Roe v. Wade, in other words, was the opposite of judicial activism. Friday’s ruling, meanwhile, was judicial activism’s epitome: A federal appeals court had blocked a Mississippi law on the ground that the law’s ban on abortion after 15 weeks of pregnancy was obviously inconsistent with Roe and Casey. (Those decisions protected the right to abortion up until fetal viability, or about 24 weeks.) The state originally asked the justices to decide whether a ban on abortion before viability was always unconstitutional. Over Chief Justice Roberts’s objection, the majority opinion went further, eliminating the right to abortion in its entirety.
In a concurrence, the chief justice underscored just how aggressive the majority opinion was, writing: “Surely we should adhere closely to principles of judicial restraint here, where the broader path the court chooses entails repudiating a constitutional right we have not only previously recognized, but also expressly reaffirmed applying the doctrine of stare decisis.” He added that “its dramatic and consequential ruling is unnecessary to decide the case before us.” But Justice Alito declined that call for restraint. The chief justice’s “quest for a middle way would only put off the day when we would be forced to confront the question we now decide,” Justice Alito wrote. “The turmoil wrought by Roe and Casey would be prolonged. It is far better — for this court and the country — to face up to the real issue without further delay.” There will be turmoil now, for sure, as the country’s highways fill with women desperate to regain control over their lives and running out of time, perhaps followed by vigilantes across state lines. But the only turmoil that was caused by Roe and Casey was due to the refusal of activists, politicians and Republican-appointed judges to accept the validity of the precedents. Justice Alito’s reference to “turmoil” reminded me of nothing so much as Donald Trump’s invocation of “carnage” in his inaugural address. There was no carnage then, but there was carnage to come.’

(…)

‘Except, of course, that the story isn’t over. Although Justice Brett Kavanaugh proclaimed with evident relief in his concurring opinion that the court was now bowing out of the picture and “will no longer decide how to evaluate the interests of the pregnant woman and the interests in protecting fetal life throughout pregnancy,” that is not likely to be the case. Those pesky women will keep coming up with problems: What about pregnancy-related medical issues short of imminent death? Rape? Incest? Fetuses doomed to die in the womb or shortly after birth? Will young teens be forced to bear children? Will women who receive a prenatal diagnosis of a serious fetal anomaly be forced to bring a child into the world whom they can’t care for adequately and in whom the state has little postnatal interest? What happens when states start prosecuting not only doctors but women?’

(…)

‘Justice Alito has an answer to these questions: “rational basis.” A law regulating abortion, he writes, “must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests.” And what might be such an interest? The list of “legitimate interests” is frightening: Respect for and preservation of prenatal life at all stages of development … the protection of maternal health and safety; the elimination of particularly gruesome or barbaric medical procedures; the preservation of the integrity of the medical profession; the mitigation of fetal pain; and the prevention of discrimination on the basis of race, sex or disability.
With the exception of the first and second interests — the Casey decision itself recognized the state’s interest in unborn life throughout pregnancy — these are anti-abortion dog whistles. The “particularly gruesome” procedures include a common method of second-trimester abortion that some states have tried to outlaw. The “integrity” of the medical profession is a slam on doctors whom Friday’s majority refers to as “abortionists.” The “fetal pain” issue is a canard, as fetuses lack the neural development to experience pain until late in pregnancy. And the discrimination issue refers, at least in part, to current state laws that would criminalize the abortion of fetuses with a Down syndrome diagnosis; currently, most such pregnancies are terminated.
And the dissenting opinion asks, “What about the morning-after pill? IUDs? In vitro fertilization?” Or medical management of miscarriage, often by the same methods used for abortion? No, justices, your work isn’t done. What you have finished off is the legitimacy of the court on which you are privileged to spend the rest of your lives.’

Read the article here.

This is damning, and rightly so, because the work is not done. All kinds of cases (interstate travelling to get an abortus, morning-after pills) will make it sooner or later to the court.
The most outspoken is Greenhouse on believability of the court. Justices appointed by a Republican voted with the majority, only the three justices appointed by a Democratic president voted against, this was different in 1973 and 1992. The court is just politics and not above politics. That’s her most damning indictment.
One could that argue Bush v Gore in 2000 was rather politicized – and the decision was at that moment as polarizing as yesterday’s decision. But at least in 2000 Stevens, nominated by Ford, and Souter, nominated by Bush père, voted with the judges nominated by Democratic presidents.

So, Greenhouse has a point, the trust in the Supreme Court as the ultimate arbiter of the political process is at stake. In a country like The Netherlands the supreme court (Hoge Raad) has a more limited role and has only a little role to play in the public perception i.e. imagination. Political issues are rarely decided by that court, the ultimate arbiter turns often out the question whether certain political decisions are in line with all kinds of international (European) agreements.
The most interesting question is whether yesterday’s ruling will influence the November elections. Some Republicans (Trump) were afraid that the women in suburbia might not like this decision.

We will see.

In any case for the Republicans it would have probably been better to be able to fight against Roe v Wade than to have won the fight.

After all, the embracement of the Republican Party of the abortion issue was a strategy to gain votes. Nothing else.

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