JUSTICE THOMAS: General, would you specifically tell me -- specifically state what the right is? Is it specifically abortion? Is it liberty? Is it autonomy? Is it privacy?
SOLICITOR GENERAL PRELOGAR: The right is grounded in the liberty component of the Fourteenth Amendment, Justice Thomas, but I think that it promotes interest in autonomy, bodily integrity, liberty, and equality. And I do think that it is specifically the right to abortion here, the right of a woman to be able to control, without the state forcing her to continue a pregnancy, whether to carry that baby to term.
JUSTICE THOMAS: I understand we're talking about abortion here, but what is confusing is that we -- if we were talking about the Second Amendment, I know exactly what we're talking about. If we're talking about the Fourth Amendment, I know what we're talking about because it's written. It's there. What specifically is the right here that we're talking about?
SOLICITOR GENERAL PRELOGAR: Well, Justice Thomas, I think that the Court in those other contexts with respect to those other amendments has had to articulate what the text means in the bounds of the constitutional guarantees, and it's done so through a variety of different tests that implement First Amendment rights, Second Amendment rights, Fourth Amendment rights. So I don't think that there is anything unprecedented or anomalous about the right that the Court articulated in Roe and Casey and the way that it implemented that right by defining the scope of the liberty interest by reference to viability and providing that that is the moment when the balance of interests tips and when the state can act to prohibit a woman from -- from getting an abortion based on its interests in protecting the fetal life at that point.
JUSTICE THOMAS: So the right specifically is abortion?
SOLICITOR GENERAL PRELOGAR: It's the right of a woman prior to viability to control whether to continue with the pregnancy, yes.
Really? She had to explain this to him? Solicitor General Prelogar says it in a single sentence:
It's the right of a woman prior to viability to control whether to continue with the pregnancy, yes.
This is not rocket science, folks. This is about a fundamental right of a FEMALE person to control one's own bodily function. Why is that so hard for him to understand? Oh, wait, this only applies to women! Penis Possessors are exempt from thinking about others.
Meanwhile, Justice Bunny Barrett is busy waving her personal ignoramus flag when it comes to Israel and Jews. During oral arguments for Carson v. Makin, yet another State of Maine case, this one dealing with access to public money for students going to private religious schools where public school is not readily available, Justice Barrett frames her question:
JUSTICE BARRETT: Thank you. And my question is as follows. It kind of goes back to Justice Thomas's questions about rough equivalent of a public school. So all schools, in making choices about curriculum and the formation of children, have to come from some belief system. And in public schools, the public school -- the school boards, the districts are making that choice, those choice of classes to be taught and the kind of values that they want to inculcate in the students. Is there any kind -- I mean, how would you even know if a -- if a school taught all religions are bigoted and biased or, you know, Catholics are bigoted or, you know -- or we take a position on the Jewish-Palestinian conflict because of our position on, you know, Jews, right? How would they even know? Because it's my understanding that in choosing whether a non-sectarian school can be funded or not, you're not engaging in that kind of oversight about what the belief systems are of the school. So long as they're not sectarian, it's a thumbs-up?
Now, I get that she's trying to put this in the perspective of what a school might say. But the language is, dontcha think, a bit bizarre? Israeli-Palestinian conflict, for sure, but Jewish-Palestinian? That she even says "our position on, you know, Jews," telegraphs a whole raft of other kinds of inferences. Do We, the People, even have a position on, you know, Jews?
If you read the hearing transcript, you will notice the ones arguing for inclusion are basing part of the argument on behalf of Orthodox Jewish schools, as if there are a great preponderance of those in Maine to begin with. This is just one comment of several:
JUSTICE ALITO: Well, unless you can say that you would treat a Unitarian school the same as a Christian school or an Orthodox Jewish school or a Catholic school, then I think you've got a problem of discrimination among religious groups --
The only Jewish day school in Maine is Levey in Portland. Their mission statement reads:
Levey Day School provides a nurturing community and a challenging, personalized curriculum infused with Jewish values and Hebrew language. Students of all backgrounds become lifelong learners committed to tikkun olam (improving our world).
About COVID, they write in the statement of Guiding Principles:
.אין כל דבר עומד בפני פיקוח נפש
Nothing takes priority over safeguarding life. (Talmud, Yoma 82a)
.תלמוד תורה כנגד כולם
Study of Torah is the most fundamental obligation. (Talmud, Kiddushin 39b)
These teachings illustrate the profound importance that the Jewish tradition places on learning and on health. Levey Day School has always prioritized both of these principles, and we remain fully committed to providing an outstanding education in a safe learning environment. We look forward to offering in-person teaching this fall, and we are also prepared for the likelihood that some or all students and teachers will need to engage remotely at times. Here are the general principles that guide our plans for doing so, with links to the specific policies that put these principles into action.
You might think these two cases are unrelated in the broader sense, but they are not. Both are dealing with the freedom of bodily self-determination, but one is a private, personal freedom while the other is one that impacts the general population. If I were told these cases had to be decided on the single issue of personal decision making, I would have to opt for the government has no say in what I do with my own body.
This does not make me an anti-vaxxer by any stretch of any imagination. Instead, it recognizes that a person has the right to make a decision for oneself. That said, the purveyors of public space have the right to say, "No, you cannot come in here because you are a danger to public welfare." That means the unvaccinated can be turned away and should be. They who choose not to vaccinate do not have the right to infect others.
There is no moral equivalency in the cases. Choices must be made by the individual in full cognizance of the ramifications. And acceptance of rules that come with that choice must be obeyed for the sake of general good and welfare of the community.
Schools, theaters, shopping malls, airports, airplanes, houses of worship, and any other place where people gather have the right to say, NO VACCINE, NO ENTRY. There comes a point where the science of infection is well established and must be acknowledged/respected. If you are a potential carrier, you cannot be with others whom you endanger.
Being pregnant is not the same thing. A woman has the legal, constitutional, and moral right to choose what to do with her own body. She can choose to carry a pregnancy to term, or she can choose to end it. The state has no standing in that conversation. If a faith-based agency wishes to refuse entry to a woman who has had an abortion, that's between that agency and the woman. The government has no standing in that conversation, either.
But wait, there's more!
Friday, SCOTUS allowed the Texas abortion law to remain in effect for the moment. In a complicated decision, the court refused to block the law, instead, sending it back to the lower courts. As explained on NPR:
The complicated ruling, issued Friday morning by a vote of 8-1, allows the challenge brought by Whole Woman's Health to proceed in a lower court. In that sense, it is a victory for the provider.
But by another vote of 5-4, the justices ruled that Texas judges and court clerks — who had been named as defendants — must be removed from the lawsuit.
As a result, any future injunctions in the case won't block the law, attorneys said, because the only defendants who remain are officials who handle medical and pharmaceutical licenses. Any court orders against them would only affect their licensing powers, said Marc Hearron, senior counsel for the Center for Reproductive Rights, a legal advocacy group whose attorneys are leading the litigation.
Slate viewed this as an attack on Constitutionally guaranteed rights:
Gorsuch concluded, federal courts cannot “parlay” an injunction against an attorney general “into an injunction against any and all unnamed private persons who might seek to bring their own S.B. 8 suits.”
This part of Gorsuch’s ruling is a victory for providers—albeit an extremely limited one, for two reasons. First, it’s not clear that an injunction against licensing officials would stop bounty hunters from filing lawsuits under S.B. 8; it would only restrict the state’s ability to punish those clinics found liable under the law. Similarly, an injunction against licensing officials may not stop citizens from suing “abettors” who facilitate an abortion. Second, Texas and other states can easily work around Friday’s decision. Wary of that outcome, Chief Justice John Roberts—along with Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor—dissented from Gorsuch’s refusal to let providers sue state court clerks and the Texas attorney general. Roberts and Sotomayor wrote separate dissents, both focusing on Texas’ flagrant attempt to “nullify” rights protected by the federal Constitution.
Well, isn't that special. So special, in fact, Governor Gavin Newsom of California has decided to use that very model for a new law in his state...and it is brilliant:
As the Supreme Court has signaled that it might overturn Roe v. Wade, California political leaders have said they will work to make the state a refuge for women in parts of the country where abortion could be outlawed. Mr. Newsom’s response seemed to fulfill warnings that if the high court backed Texas’ legal strategy, liberal-leaning states might use the same tactic to limit rights dear to conservatives, such as gun rights.
The governor said that “if states can now shield their laws from review by the federal courts that compare assault weapons to Swiss Army knives, then California will use that authority to protect people’s lives, where Texas used it to put women in harm’s way.”
In the end, this whole episode is about the ridiculousness that has become SCOTUS. The court, once a place where laws and legislation was discussed free of political gamesmanship, has evolved into something partisan and devoid of the protections it's supposed to offer. The court as it stands now would not hear R. B. Ginsburg's case on unfair taxation that hinged on gender discrimination. The court is precariously edging toward becoming a puppet court...the kind we mocked and belittled in totalitarian countries like the Philippines and Venezuela.
If SCOTUS upholds more end-runs around the Constitution and settled law, what's the point of either? They are nothing more than shams and illusions to shed a rosy glow over morally and ethically bankrupt policies.
The Wifely Person's Consideration o'the Week
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