Breaking the Arc Towards Justice

Breaking the Arc Towards Justice
Nicholas Johnson
The Gazette, May 10, 2022, p. A5
I’ve never met a woman who thought an abortion was a lovely way to spend an afternoon.

Legally, overturning Roe v. Wade is not about abortion’s pros and cons, life vs. choice. It’s about the Constitution’s grants of protection from government intrusion.

It’s not about our opinions regarding abortion. As the bumper sticker has it, “Opposed to abortion? Don’t have one.” It’s whether a state can constitutionally prevent a woman and her doctor from what they believe best. Roe says “no, that’s unconstitutional.” Justice Samuel Alito says “oh, yes they can.”

This makes it possible for one to be both “opposed to abortion” (as a personal choice) while also opposed to state abortion bans (as a governmental overreach).

Besides constitutional law, Alito’s leaked draft opinion overruling Roe v. Wade raises questions about the Court.

Having spent a year as law clerk to Justice Hugo Black, I care about the Court as an institution. I’ve written here before how “politicizing an impartial Court weakens our democracy.” (“High Court Mystique is Shattered,” Feb. 16.)


The sails of the abortion debate are driven by the winds of religion and politics: the official stand of the Catholic church, before and after Roe; the Republican Party’s decades-long efforts. Six of the seven Catholic justices (including Alito) were appointed by Republican presidents G.W. Bush and Donald Trump.

Warranted or not, this multiplies the Court’s public relations challenge in regaining public trust as non-political.

The Court has become the judicial wing of the Republican Party. Alito’s draft opinion in the Dobbs case becomes the final nail in the founders’ hope for a non-political judicial branch.

The unprecedented leak of an opinion? I’m speechless. My fellow law clerks and I lived by commonsense norms. When Bob Woodward wanted to interview me about Justice Black for Bob’s “behind the scenes” book, The Brethren, I refused.

Chief Justice Earl Warren issued the only rule. We played basketball with the Court’s guards in a gym above the courtroom. (Above the Supremes, it was “the highest court in the land”). The Chief said bouncing basketballs during oral arguments was disrupting; please play at other times. We obliged.

I’m unconvinced by Justice Alito’s attempt to justify states’ abortion bans.

We’re left with dozens of questions. Here are a handful.

Will Alito’s opinion be the majority’s? Will revisions, or separate opinions matter?

Will Alito’s rationale repeal other rights? He says not, but he’s already used it in his 2015 Obergefell gay marriage dissent.

How will the decision affect the midterm elections?

If Republicans win both the House and Senate will Senator Mitch McConnell push his national abortion ban proposal? Is it constitutional?

Will Republicans provide for women, especially the poor, adversely impacted socioeconomically by abortion bans?

Will gender equality require a ban on men’s vasectomies and contraceptive purchases (overturning the 1965 Griswold case)?

Dr. Martin Luther King, Jr., asserted “the arc of the moral universe is long, but it bends toward justice.” Alito’s opinion reverses that arc -- toward its breaking point.
__________
Nicholas Johnson is the former co-director of the Iowa Institute for Health, Behavior and Environmental Policy mailbox@nicholasjohnson.org

# # #
SOURCES
Alito’s opinion. Dobbs v. Jackson Women’s Health Organization, Feb. __, 2022 (“opinion of the Court”), https://www.politico.com/news/2022/05/02/read-justice-alito-initial-abortion-opinion-overturn-roe-v-wade-pdf-00029504

Bumper sticker. From memory; and Linda Greenhouse, “Abortion Cases: A Conservative Judicial Agenda?’ New York Times, April 1, 2019, https://www.nytimes.com/2019/04/01/opinion/abortion-supreme-court-judges.html (“The best bumper sticker I’ve ever seen read: ‘Opposed to abortion? Don’t have one.’”)

Roe. Roe v. Wade, 410 U.S. 113 (1973)

Justice Black clerk & Supreme Court references. Commonsense norms. Woodward interview request. Basketball above courtroom. Chief Justice’s request. My one-year clerkship (the usual term in those days) ran from the fall of 1959 to the summer of 1960 (“the October 1959 Term”). These items are from memory.

Mystique is Shattered. Nicholas Johnson, “High Court Mystique is Shattered,” The Gazette, February 16, 2022, p. A7

Catholic Church official stand. “Catholic Church and Abortion Politics,” https://en.wikipedia.org/wiki/Catholic_Church_and_abortion_politics

Republicans use of abortion issue. Numerous sources; here’s one: M. McKeegan, “The Politics of Abortion: A Historical Perspective,” Womens Health Issues, Fall 1993, National Library of Medicine, https://pubmed.ncbi.nlm.nih.gov/8274866/

Catholic Justices. “Demographics of the Supreme Court of the United States,” 5.2 “Catholic justices,” https://en.wikipedia.org/wiki/Demographics_of_the_Supreme_Court_of_the_United_States

Impact of Alito’s Dodd opinion on other rights. In Dodd he says “no.” But in Obergefell (the gay marriage case) he said in his dissent, “’liberty’ under the Due Process Clause should be understood to protect only those rights that are ‘deeply rooted in this Nation’s history and tradition.’” Obergefell v. Hodges, 576 U.S ____ (June 26, 2015) [blank page number because not in official reports], but available elsewhere, e.g., https://www.law.cornell.edu/supremecourt/text/14-556

Ian Millhiser, “If Roe v. Wade falls, are LGBTQ rights next? Justice Alito is a staunch opponent of LGBTQ rights, but he may not have the votes to turn back the clock.,” Vox, May 6, 2022, https://www.vox.com/23058465/supreme-court-roe-wade-lgbtq-samuel-alito-marriage-equality-obergefell-lawrence

Griswold case. Griswold v. Connecticut, 381 U.S. 479 (1965)

Arc of Justice. “Dr. Martin Luther King, Jr.,” Smithsonian Institution, https://www.si.edu/spotlight/mlk (“We shall overcome because the arc of the moral universe is long but it bends toward justice,” Dr. Martin Luther King Jr., “Remaining Awake Through a Great Revolution.” Speech given at the National Cathedral, March 31, 1968.)

Sample general sources. Caroline Mala Corbin, “ 8 legal reasons to dislike Justice Alito's draft opinion on abortion; It overrules decades-old precedent to impose conservative justices’ anti-abortion views because they finally have the votes to do so,” THINK, NBC News, May 3, 2022, https://www.nbcnews.com/think/opinion/roe-v-wade-overturned-supreme-court-abortion-draft-alitos-legal-analys-rcna27205

Charlie Savage, “Draft Opinion Overturning Roe Raises a Question: Are More Precedents Next? The legal reasoning that the Supreme Court’s conservative bloc is considering to end abortion rights could uproot a series of other past rulings that created modern rights,” NYT, May 5, 2022, https://www.nytimes.com/2022/05/05/us/abortion-precedent-alito.html

Michele Bratcher Goodwin, Abortion: A Woman's Private Choice https://scholarship.law.uci.edu/faculty_scholarship/647/

Jennifer Schuessler, “The Fight Over Abortion History; The leaked draft opinion that would overturn Roe v. Wade also takes aim at its version of history, challenging decades of scholarship that argues abortion was not always a crime,” New York Times, May 4, 2022, https://www.nytimes.com/2022/05/04/arts/roe-v-wade-abortion-history.html

# # #

Thoughts on Eating Living Things

"Almost a third of Americans, 32%, believe animals should be given the same rights as people, while 62% say they deserve some protection but can still be used for the benefit of humans. The strong animal rights view is up from 2008 when 25% thought animals' rights should be on par with humans'."

Rebecca Riffkin, "In U.S., More Say Animals Should Have Same Rights as People," Gallup.com, May 18, 2015

My wife, Mary, has discovered cooking for family gatherings is not what it once was.

In my youth it was simpler. My father, who taught general semantics, believed "food dislikes" were a symptom of ignorance of general semantics principles. If someone might say, for example, "I don't like spinach," he would respond, "But you haven't even tasted this spinach; you're just reacting to the word, the label. Taste what's on your plate and see; maybe you'll like it."

After months of "tasting" everything on our plates our food dislikes diminished and then disappeared -- which created another problem. We very rarely went to a restaurant, but a family story is told of one such occasion before I was 10 years old. After everyone else had ordered, I was still studying the menu. Urged to hurry up, I blurted out, "That's what you get, Dad, for teaching us to have no food dislikes!"

A doctor gave me an allergy test, and reported I was allergic to a dozen or more items -- including corn (hard to avoid in Iowa) and wheat (requiring my loving mother to bake rye bread for the family). After a summer on my aunt and uncle's farm, playing in the corn bin and eating wheat bread, with no apparent ill effects, that was the end of my allergies.

No one I knew refused to eat GMO food, was on a "gluten free" diet, "lactose intolerant," or allergic to peanuts (we lived on peanut butter sandwiches).

To borrow Garrison Keillor's phrase, our mothers just "put the hay down where the goats can get it." "Food" was cooked, put in bowls on the table, transferred to our plates, and consumed -- usually meat, potatoes and gravy, two or three vegetables, and a little salad -- dessert if we'd been good, and were lucky.

When we were young there were few, if any, vegetarians, let alone vegans, among the children of beef, hog, dairy and chicken farmers. Now our family gatherings include representatives of virtually every food preference group, each with their own special meals. (This includes the "lactose intolerant" and "gluten free" at our table.)

Of course, those with real medical problems must be respected. But the varieties of beliefs about eating once-living things also need to be respected.

I'd extend this to attitudes about abortion. If someone truly believes that aborting a fetus is "murder," it makes their "right to life" opposition to abortion more understandable -- especially if they only apply the belief to themselves and do not insist the government impose it on everyone else.

I'd also be tolerant of what superficially, initially, appear to be inconsistencies: those who favor the availability of abortions, but believe it is morally reprehensible to eat a fish; or those who believe no one should be permitted to abort a fetus, but join the 62% of Americans (87% of Republicans) who favor the death penalty for adults. ["National Polls and Studies; Huffington Post, January 2014," Death Penalty Information Center.]

"China, together with Iran, North Korea, Yemen and the US (the only G7 country to still execute people) carried out the most executions last year." "Death Penalty Statistics, Country by Country," The Guardian. Only 58 of the 195 U.N. nations still have the death penalty. "Capital Punishment by Country," Wikipedia.org.

We come by our beliefs regarding diet, including eating once-living things, from our parents, experience, culture, religion, education; also our moral, philosophical and ethical beliefs. And so long as our beliefs and actions don't have an adverse impact on others we are all stronger for this diversity. [Photo credit: unknown; beef cattle feedlot]

I started down the road now revealed in this blog post as a result of a conversation today regarding vegetarians and vegans. It seemed useful for me to try to think through where I come out.

I am neither a theologian nor a research scientist. All I know -- or suspect or believe -- is what I have been reading in books like, Frans de Waal, Are We Smart Enough to Know How Smart Animals Are? (2016); Jonathan Balcombe, What a Fish Knows: The Inner Lives of Our Underwater Cousins (2016); Jennifer Ackerman, The Genius of Birds (2016) -- and even, most recently, Peter Wohlleben, The Hidden Life of Trees: What They Feel, How They Communicate (2015). There are undoubtedly research scientists who attempt to refute the assertions of these authors; if so, I have not read their works. After all, I'm just reading books that interest me; I'm not engaged in research for a doctoral dissertation.

I am even less well educated about the human biome, but further humbled and fascinated with the idea that I am carrying more cells of microbes and bacteria in and on my body than human cells (perhaps 100 trillion of theirs to 37 trillion of mine).

"As of 2014, it was often reported in popular media and in the scientific literature that there are about 10 times as many microbial cells in the human body than there are human cells; this figure was based on estimates that the human microbiome includes around 100 trillion bacterial cells and an adult human typically has around 10 trillion human cells. In 2014 the American Academy of Microbiology published an FAQ that emphasized that the number of microbial cells and the number of human cells are both estimates, and noted that recent research had arrived at a new estimate of the number of human cells at around 37 trillion cells, meaning that the ratio of microbial to human cells is probably about 3:1. In 2016 another group published a new estimate of ratio as being roughly 1:1 (1.3:1, with 'an uncertainty of 25% and a variation of 53% over the population of standard 70 kg males.')" Human Microbiome Project," Wikipedia.org. See also, NIH Human Microbiome Project; Karen Weintraub, "Findings From the Gut -- New Insights Into the Human Microbiome," Scientific American, April 29, 2016.

Frans de Waal (Are We Smart Enough to Know How Smart Animals Are?) argues (if I read him correctly) that humans are mistaken to evaluate how "smart" animals are by comparing their cognitive abilities with our own.

Webster's defines "cognitive" as "activity such as thinking, reasoning, or remembering." "Definition of Cognitive," Merriam-Webster. Thus, Jonathan Balcombe's (What a Fish Knows) observation that "A small squid can learn mazes faster than dogs do, and a small goby fish can memorize in one trial the topography of a tide pool by swimming over it at high tide -- a feat few if any humans could achieve" could be considered examples of "cognitive ability" in animals.

Actually, other species can often best our ability to do something. As I have written of squirrels, "Much as we may squirm to avoid admitting it, an honest evaluation of the data compels the conclusion that squirrels do, in fact, have a superior intelligence to humans. They also have more patience and determination. More willingness to work at, and stick with, problem solving. More commitment to scientific experimentation. And, not incidentally, an athletic prowess -- not to mention courage -- that puts our Olympic athletes to shame by comparison. As the clerk put it to me with commendable candor when I asked about a squirrel-proof bird feeder, 'Look, mister, there ain't no squirrel-proof bird feeders. There are just squirrel-resistant bird feeders.'" "The Natural Superiority of Squirrels" in "UI Held Hostage Day 498," June 3, 2007

Mammals, fish, birds, insects, microbes -- and trees -- may need to communicate (and do); they do not need to speak English or solve the New York Times' crossword puzzle. The standard he says we should use is to ask, "Are their cognitive abilities sufficient to insure the survival of their species?" (not a direct quote).

Measured by de Waal's standard, any honest, open minded inquiry into the cognitive and other abilities of species other than our own will leave the reader humbled, in awe, and filled with respect for the wide range of abilities of our plant and animal "cousins." Sufficiently so -- at least for me -- that when it comes to what I will and won't eat, I am unable to distinguish between the life force present in a chicken and a fish, a carrot and a shrimp.

Which, of course, brings me back around to the oft-heard inquiry, "So, what's for dinner?"

If one wishes to avoid killing and consuming plants and animals that possess not only a "life force" but sufficient cognitive ability to keep their species alive for millions of years, there is virtually nothing left on the menu.

No one needs to live to eat, but everyone needs to eat to live. The variation of "necessity is the mother of invention" is that "mother is the invention of necessity." Eating is also the invention of necessity. Confronted as I am with the necessity of eating, what should I do?

I have finally come around to the wisdom of many of the only true "Americans," those who were here when our ancestors arrived. I may have romanticized the teaching I received from a Meskwaki elder, but not by much. Without disclosing any of the details he shared in confidence, the general idea involved a respect for the Earth and living in harmony with all of its plant and animal inhabitants. One imposes as light a footprint as possible on the Earth, taking only the minimum one needs for food.

So that will be my creed. Eat only what I need (which, as a side benefit, won't do my waistline any harm), going especially light on eating anything I would not have been willing to kill, and insofar as possible not contributing to that 40% of the food Americans buy and then throw away.

I'm neither advocating this analysis for others nor criticizing others' different choices. It's a personal matter everyone can think through for themselves (or not). Moreover, I may change my mind. But, for now, these are my "Thoughts on Eating Living Things."

# # #

The Republicans Are Akin

August 27, 2012, 11:05 a.m.

And Platforms Are Like a Box of Chocolates
["My momma always said, "Life was like a box of chocolates. You never know what you're gonna get." -- "Forrest Gump," (1994).]

Both parties' platforms, and candidates, are stews of many ingredients -- comfort with, commitment to, and membership drawn from the over- and under-privileged; ideology, including sense of noblesse oblige, support of unions and social programs, proportions of individualism and communitarianism; the demands of special interest advocates and contributors; factions within the party; and historical positions.

There are many differences between the parties on the issues. Most will be saved for future blog entries.

But when it comes to women's issues there is good news and bad news. The good news is the progress -- having just celebrated the anniversary of women's constitutional right to vote (first proposed 1848, finally granted in the Nineteenth Amendment, August 26, 1920), Title IX (40th anniversary), women bringing home more Olympic medals than the men (thank you Dr. Christine Grant!), and even the Augusta Country Club finally admitting at least two women to membership.

The bad news? The Republicans didn't get the memo.

There are two ways in which the Republicans are Akin at their Republican National Convention in Tampa this week.

(1) They are achin'. One of their own, Todd Akin, a Member of Congress who sits on the House Science Committee and is now running for a U.S. Senate seat, has revealed that his lack of compassion for pregnant rape victims ("he argued against allowing abortions in cases of rape") is exceeded only by his ignorance of their biological science. ("He claimed a woman's body can typically fend off pregnancy during a 'legitimate rape' . . ..")

Candidates fear Akin's identification as a Republican may make it more difficult for Mitt Romney, and other Republicans, to win in November. "Romney calls on Rep. Akin to drop Senate bid over 'rape' comments," Fox News, August 21, 2012 ("Mitt Romney joined several other Republicans Tuesday in calling on Missouri Rep. Todd Akin to give up his bid for Senate over his controversial comments on rape, as the Republican congressman continued to hold his ground and vowed to stay in the race.").

(2) They are Akin. It turns out that Akin is no errant Republican minority of one wandering in the wilderness when it comes to banning all abortions with no exceptions. The reason Akin is a walking Republican disaster is precisely because his "no exception" views are not unique to him. Although previously unknown to many voters, Akin's no-exception stance is the position of a great many Republicans. It has long been a part of the national, and many state, Republican platforms. Although Romney has tried to distance himself, it is the view of the vice presidential candidate hand picked and thoroughly vetted by Romney, Congressman Paul Ryan, plus a goodly number of Ryan's House colleagues.

(For example, the Republican's 2008 Platform says, "we assert . . . and affirm that the unborn child has a fundamental individual right to life which cannot be infringed. We support a human life amendment to the Constitution, and we endorse legislation to make clear that the Fourteenth Amendment’s protections apply to unborn children" -- with no mention of exceptions for rape, incest or the life of the mother. 2008 Republican Party Platform, p. 52.)

And this year?

This year, the Republican platform will include abortion language adopted last week that reaffirms the party's objection to legalized abortion, with no mention of exceptions for cases of rape or incest. . . .

Republican National Committee Chairman Reince Priebus said last week . . . "[T]hese guys are proud pro-life candidates and we're a proud pro-life party."

William Douglas, "Romney and GOP lay out agenda," Miami Herald/McClatchy Newspapers, August 27, 2012 [Gazette, "Romney, GOP Lay Out Agenda," August 27, 2012, p., 1].

Of course, it's possible to make too much of party platform planks. As the sub-head, above, puts it, "Platforms Are Like a Box of Chocolates" -- and to continue Forrest Gump's line, "you never know what you're gonna get."

Parties aren't too insistent on candidates endorsing and following up on platforms. Elected officials who intend to follow them may find that a change in conditions -- war, the economy, the weather, public opinion -- can necessitate a change in direction, and policy. Presidents discover the power of the House and Senate to frustrate their best intentions -- just ask President Obama.

However, the Republican Party's opposition to a range of women's rights, including abortion (sometimes with, sometimes without, exceptions) is much more than a platform plank. It has been embedded in proposed (and enacted) legislation. It has been the stuff of Republican officials' campaign and other speeches. It is something that enjoys widespread support among those who hold office as Republicans.

Consider, for example, this assessment of Vice Presidential nominee Paul Ryan's positions on women's issues:

For years, he has been a reliable vote against workplace equity for women, opposing the Lilly Ledbetter Fair Pay Act, which makes it easier for women to file wage-discrimination lawsuits, and two similar measures.

The full outpouring of hard-right enthusiasm is based, to a large degree, on Mr. Ryan’s sweeping opposition to abortion rights. He has long wanted to ban access to abortion even in the case of rape, the ideology espoused in this year’s Republican platform. (Mr. Romney favors a rape exception.) Mr. Ryan also co-sponsored, along with Representative Todd Akin of Missouri, a bill that would have narrowed the definition of rape to reduce the number of poor women who can get an abortion through Medicaid.

Besides that, he has co-sponsored more than three dozen anti-abortion bills, including measures that would require women to get an ultrasound first, bar abortions after 20 weeks in the District of Columbia and end federal spending for family planning programs. Though he urged Mr. Akin to end his Senate race last week over an offensive remark about “legitimate rape,” Mr. Ryan has actually co-sponsored more of these measures than Mr. Akin.

“I’m as pro-life as a person gets,” he said in 2010.

He also co-sponsored a bill last year to allow employers to decline coverage of birth control if it violated their moral or religious convictions, and his budget would end all government financing for Planned Parenthood while slashing spending on prenatal care and infant nutrition.

Editorial, "Paul Ryan’s Social Extremism," New York Times, August 27, 2012, p. A18.

Here is a comparable assessment: "A much more far-reaching bill [than Republicans' bills banning abortion] co-sponsored by Ryan, the 2011 Sanctity of Human Life Act, states that the 'life of each human being begins with fertilization, cloning, or its functional equivalent' and empowers states to 'protect the lives of all human beings residing in its respective jurisdictions' that meet this definition of personhood. Not only would this give states the ability to treat any kind of abortion as murder, experts have said it could also ban in vitro fertilization procedures and some forms of birth control like the 'morning after' pill." Benjy Sarlin, "A Brief Guide To Paul Ryan’s Abortion Record," TPM, August 23, 2012.

I have written relatively favorable evaluations of both Governor Romney and Congressman Ryan in prior blog entries -- in which I do not discuss their positions on the issues. "Why Mitt Romney? Better Than 'Least Worst' Republican," March 22, 2012; "Is Ryan Ready . . . To Be President?", August 14, 2012.

That distinction is perhaps the most important take-away from this blog entry. As I commented along with the praise of Romney,

"no matter how wonderful a presidential candidate of either party might be, he or she brings with them a cast of thousands to which at least some deference must be paid. (Although, as President Obama has shown the Democratic Wing of the Democratic Party that got him the nomination and much of the election, it need not be all that much deference.) I'm not thrilled with the national and Iowa leadership of either party. But I think the Democratic Party's gang of party members, major contributors, political consultants, staffers, lobbyists, elected officials, influence peddlers, and hangers-on would be at least marginally better than those who would surround and pressure any Republican president.

Without parsing possible distinctions, let's concede that all four -- Obama, Biden, Romney and Ryan -- are each, as individuals, sufficiently intelligent, skilled and able to perform in the office for which they are running.

That is why it is a bit misdirected to consider this presidential election a choice between two (or four) white guys. It is, rather, a choice between two large wagon loads of baggage, and the folks who are pulling one wagon rather than another. Frankly, if both the House and Senate were controlled by progressive Democrats, I think Romney's record as Massachusetts governor provides some evidence that (with the possible exception of tax cuts for the wealthy) he would govern, as president, somewhere to the left of where Obama has been able to go. (I am not so sure the same thing can be said of Ryan.) [E.g., support for assertion about Romney, added subsequently: Binyamin Appelbaum, "Business and Political Experiences Pull Romney 2 Ways on Economy," New York Times, August 28, 2012, p. A1 ("Mitt Romney declared during his unsuccessful campaign for the Senate in 1994 that the federal minimum wage should rise with inflation . . .. Mr. Romney has now maintained that position for almost two decades, [as something] good for workers, good for employers and good for the broader economy. . . . [H]is steady support for an idea vigorously opposed by conservatives and business groups underscores the complexity of predicting how he might manage the national economy.").]

That is why the parties' platforms, prior legislative proposals, and the deeply-held ideological convictions of the candidates need to be our focus.

Here's where the Republicans -- as a Party (not all individual Republicans) -- are on issues involving women in general and abortion in particular. The differences between the parties, and candidates, is stark. The choice is pretty clear. The choice is ours to make.

# # #