Friday, December 2, 2022

                                                WHY GEORGIA STILL MATTERS

First they came for the Communists, and I didn't speak up, because I wasn't a Communist.  

Then they came for the Jews, and I didn't speak up, because I wasn't a Jew.   

Then they came for the Catholics, and I didn't speak up, because I was a Protestant.  

Then they came for me, and by that time there was no one left to speak for me.                               

Martin Niemoller, German Protestant Minister, after his release from Dachau

                                        

 On December 6 there will be a run-off election in Georgia for the Senate seat between the Democratic incumbent, Raphael Warnock, and Republican Herschel Walker.  Warnock led in the general election 49.4% to 48.5%, short of the 50% needed to be certified as the winner.  On the basis of the results of other mid-term elections for the Senate, Democrats will hold 50 seats in the Senate in the next Congress, and Republicans will hold 49 seats.  Thus, regardless of the outcome of the run-off election, the Democrats already have majority control with the Vice President, a Democrat, holding the tie-breaking vote.

As is often the case in competitive elections, and especially in run-off elections, the determining factor will most likely be voter turnout, particularly here where both Parties have disincentives to vote.  For the Democrats, why bother since they already have majority control; for the Republicans, why bother since they have already lost control of the Senate.  So, does it really matter for Democrats?  It certainly does.  Much is still at stake.  Democrats need to go all out to get their people to the polls.  Turnout is determined as much, if not more, by organization and money.  The policies and the personalities/character of the candidates are secondary.  Its all about getting the Party's base and leaners to cast their ballots.  Expense and effort should not be spared.  

But why does it matter?  The reasons are several.  First, and perhaps foremost, the Republican Party must be opposed at every opportunity - as a matter of principle.  If this seems like blind partisanship, so be it.  It certainly has become the Republican method of operation.  Not one inch should or can be surrendered to a Party whose radical right wing and its supporters have become committed to the destruction of the American experiment as it has developed over the years since the founding of the Republic and are willing to espouse violence to achieve their goals.  Does that sound paranoid or over the top?  I don't think so, but let me elaborate below.

Second, there are procedural benefits that come with another seat.  Democrats would no longer have to enter into a power sharing arrangement with the Republicans in the Senate which would be dictated by a 50/50 split.  With 51 Senators, Democrats would claim one-seat majorities on committees. It would help them move legislation forward and confirm judges and presidential nominees.

Third, there are practical benefits.  It will give Democrats a little breathing room if someone threatens to break ranks.  A 51st vote would make the Democrats less dependent on the votes of Senators Manchin and Sinema (DINOs) (and Sanders).  It would also provide a bit of a buffer for 2024 when the Democrats will have more Senate seats to defend.  It may be a platitude to say every vote counts, but keep in mind Democrats will no longer have the House to fall back upon.

Fourth, it would further penalize the Republican Party for nominating such blatantly unqualified, incompetent and dishonest charlatans as Herschel Walker for public office, e.g., Oz, Mastriano, Masters and Lake to name just a few, and perhaps move it back toward the mainstream.

Fifth (overlapping the First), it would be a further statement in opposition to the philosophy promoted by the Republican Party, a philosophy which would condemn America to the past, freeze American mores to those which a majority of Americans have long rejected, and block all attempts to prepare for and facilitate adaption to the future needs of society.  Here, it may be instructive to look at the decisions of the current Supreme Court, which with Donald Trump's appointments has more decidedly become the legal arm of the Republican Party and manifests the Party's objectives.  Since the Republicans, in denying the wishes of a majority of the public, find it difficult to appeal to a broad spectrum of the electorate, they have successfully engaged (most recently largely through the machinations of Mitch McConnell but going back to the time of Ed Meese, Attorney General in the Reagan administration) in taking over the Supreme Court, where there is no voting electorate with which to contend and Justices serve for life.  

The Court is now dominated by fundamentalists flying the flag of "originalism" (at least when it suits their purposes or can be twisted to do so).  Originalism insists that the answers to Constitutional issues are in what people thought hundreds of years ago.  Fundamentalism is the religion of the Republican Party, both figuratively and literally.  If war is politics by other means, then so is Constitutional law as determined by today's Supreme Court (Thomas, Alito, Gorsuch, et al). 

So what does that mean in terms of politics.  We have already seen the overruling of Roe v Wade, the Heller and Bruen Second Amendment decisions, Citizens United, Hobby Lobby, Masterpiece Cakeshop and the Little Sisters of the Poor case re contraception, just to cite few.  The Court is open to the argument that the equal protection clause of the Fourteenth Amendment not only doesn't support affirmative action (or even Brown v Board), but that it precludes affirmative action.  This is not just the Supreme Court speaking, it is the Republican Party; it is MAGA writ large.  Besides opposing gun control legislation, abortion rights, separation of church and state, campaign finance legislation and affirmative action, they oppose environmental regulations and wish to impose sharp limits on voting rights and the regulatory authority of Congress and administrative agencies.  And this doesn't even touch on January 6 and election denial.

Herschel Walker! In the Senate!  Are you serious?  It's an insult.  The Georgia run-off election is another opportunity for Democrats and voters in general to echo Howard Beale in Network and shout, "I am mad as hell and I am not going to take it anymore."

In a figurative sense, Democrats should emulate Sherman's march through Georgia vis-a-vis the Republican Party - scorched earth.  It's long past time to speak up.

Tuesday, November 1, 2022

                        THE DEPLORABLES REVISITED OR BARBARIANS AT THE GATES


There is nothing the rabble fears more than intelligence.  If they understood what is truly terrifying, they would fear ignorance.    Goethe

I am not a member of any organized political party.  I am a Democrat.    Will Rogers

American voters have not confronted so grave a choice since 1860.    Mark Danner

The most important thing about this election, by far, is that it could decide who will control the Senate. Our main concern right now is about which party wins control.  If you want a Senate that's going to reject anything that comes out of a Biden White House, feel free to consider the Republican candidates.  Otherwise, come on ...   [D]on't...turn the Senate over to Mitch McConnell.    Gail Collins


A week to go in another of a seeming endless series of existential must-win elections.  It never seems to get any less critical.  The counter-enlightenment just won't go away.  But the Democrats and the Independents (few as they are) are not taking it seriously enough - just another mid-term which comes every four years and almost always goes against the party controlling the White House.  This election is far more than that, and the Democrats better get their act together, if it is not already too late (in many states early voting has begun and absentee ballots are out).  The candidates which the Republicans have put forward are breathtakingly appalling.  They have outdone themselves, which is saying something for a Party which in the past has foisted upon us such notables as Dan Quayle, George W. Bush, John Ashcroft, Sarah Palin, Michelle Bachmann, Rick Santorum, Kris Kobach and has presently succeeded in dumping on us Marjorie Taylor Greene, Lauren Boebert, Matt Gaetz, Mo Brooks, Louie Gohmert, Jim Jordan, Paul Gosar, Josh Hawley, Ron Johnson, Tommy Tuberville, Elise Stefanik and the like.  The new lineup includes such worthies as Doug Mastriano, Blake Masters, Herschel Walker, Don Bolduc, J.D. Vance, Mehmet Oz, Lee Zeldin, Mark Finchem and Kari Lake.  If I've left others of this ilk out, please forgive me.  Maybe it's no coincidence that election day comes so soon after Halloween.

Democratic Strategy

The Democratic attack should be four pronged: 1) elaborate on what President Biden and the Democrats in Congress have accomplished (with virtually zero support from Republicans) for the benefit of all Americans (stay away from identity based appeals); 2) emphasize that Republicans have offered no solutions to today's problems, such as inflation and crime, but only complain about them and recite the time worn and failed mantras of lowering taxes (mainly for the rich) and reducing regulations (see the British example and the demise of former Prime Minister Truss); 3) point out what a Republican majority in the House and Senate would mean for abortion rights, voting rights, environmental issues, Medicare, Social Security, health care including costs of pharmaceuticals, Supreme Court nominations, church-state relations, costs of education and rational gun regulations, and publicize Senator Rick Scott's agenda as well as the refusal of Republican Congressional leadership to present a platform; 4) play the January 6 card and the attempt by the Republican Party to overturn the election (and the Government), reject the rule of law and ignore the will of a majority of the electorate.

Control Of Congress

Democrats need to emphasize foremost that this election is not only about electing individual Senators and members of the House, but also about determining majority control of the House and Senate, and that such control will have greater impact upon the nation's and the individual voter's well being and future than the acts of an individual member of Congress. If Republicans hold the majority, even a moderate Republican member will be bound to vote with the Republican caucus, and is thus a danger to the country.  The same goes for state and local elections.  More and more we see that gerrymandered federal and state election districts determined by malapportioned state legislatures impact on the outcome of elections.

Getting Out The Vote

The effectiveness of the foregoing, notwithstanding its merits as a campaign strategy, is nevertheless totally dependent for its success on getting out the vote, particularly the young vote.  Ultimately, the Party most successful in getting its base and those likely to be receptive to its program to the polls is going to win, particularly in a mid-term election.

The Republican Party And The Politics Of Extremism

Finally, it would be remiss not to remind voters of the parallels between the goals and ideology of the MAGA wing of the Republican Party and those of Putin's and Orban's governments and other European far right parties, with their preoccupation with the denial of individual rights, the denial of gay rights including same sex marriage, ethnocentric policies and the primacy of the State; and even those of the National Socialists as they came to power in Germany in the early 1930s.

The Republican Party leadership today is not made up of conservatives but of radicals/revolutionaries who are not interested in maintaining and improving the current and long standing system of government, but only in destroying it so they can take it over and run it themselves autocratically, based on their supposed superior thinking.

The Party can be looked at as consisting of two groupings:

    a. white, non-college graduate, rural males who want to push down and keep down those who they perceive as beneath them (these are the racists and ethno-centrists and misogynists) and who blame the "elite" in power for the elevation of such perceived inferiors to equal status and which elite they wish to overthrow;

    b. the intellectual elite, who feel that their intellectual and philosophical and management superiority is not recognized or accepted by the currently empowered establishment, and who want to take over themselves as autocrats who cannot be questioned.  They (people such as Peter Thiel and those at the Claremont Institute) represent the contemporary version of the counter-enlightenment - the autocracy of a self-proclaimed intellectual elite (as distinct from the 18th century autocracy based on birth and wealth) promoting the efficiency of the tyrant driven by narcissism and ego and desire for power for the sake of power.  Shades of Ayn Rand.

What we have is group (b) manipulating group (a) to overthrow constitutional republican government and relying on obscenely wealthy oligarchs to fund their efforts.  That is today's Republican Party.  They are aiming at a permanent takeover, a one-party state, not unlike Putin's and Xi's.

This may be too heavy a load for a campaign presentation, but it puts the critical importance of this election (and the next one) in historical perspective.

What The Democrats Have Accomplished

In two years President Biden and the Congressional Democrats have pushed through a $1.9 trillion pandemic stimulus package, a trillion dollar infrastructure bill, a generous tax credit for parents that brought child poverty to historical lows, legislation that allows Medicare to negotiate lower prescription drug prices and to cover more drug costs, the biggest investment in clean energy in history, a technology bill encouraging computer chip manufacturing and including tax credits encouraging the building of factories that manufacture batteries and solar panels, a veteran's health bill, a gun safety bill and expanded health care subsidies, as well as new taxes on corporations that buy their own stock and a new 15% minimum tax rate for corporations earning more than $1 billion a year.  

State unemployment is at all-time lows in 11 states and below 3% in 17 states.  The U.S. economy added more jobs, including 700,000 manufacturing jobs, during Biden's first 20 months in office than it did during the first 37 months of the Trump administration, that is, before Covid put the economy into a coma.  Wage growth is robust (overall labor income per working-age adult, adjusted for inflation, rose 3.5% from January 2021 to July 2022).  The latest report shows that GDP for the third quarter increased at the annual rate of 2.6%.  The U.S. budget deficit has been sliced in half for fiscal 2022.  

Notwithstanding the Republican's constant clamoring about deficits and their willingness to shut down the Government if the debt limit is increased, the federal deficit went up in every single year in the Trump administration.  It went up before the pandemic; it went up during the pandemic; it went up every single year on his watch.

If the Democrats can maintain and expand their majorities in the House and the Senate they can push for a more expansive child tax credit, subsidies for child day care, paid leave, funding for free community college and universal pre-K, codification of abortion rights, the right to purchase contraception and to marry whom one chooses, expanding and safeguarding voting rights, installation of more like-minded judges, addressing racial discrimination in policing (not defunding the police), gun safety legislation that closes background check loopholes and sets a minimum age of 21 for purchasing guns, and legislation that confronts climate change, all of which are opposed by the Republican Party (just for good measure they voted against capping the price for insulin).  A more robust majority in the Senate would enhance the chances for an increase of the corporate tax rate to 28% (certainly justified by the bonanza profits accruing to oil companies and other wealthy corporations that are jacking up prices to reap more profits which they use to buy back stock and pay dividends to their wealthy shareholders), a global minimum tax rate and an increase in taxes on the richest Americans which Republicans have opposed.  

Republicans Have Offered No Solutions To Inflation, Crime Or Immigration Problems

On inflation, the primary target on which they have focused, Republicans have said little about what they would do, and what they have said - like forcing cuts to entitlements like Medicare and Social Security, extending and making permanent Trump's 2017 tax cuts, otherwise due to expire in a couple of years (which overwhelmingly benefitted the wealthy), and repealing the 15% corporate minimum tax - would make the problem worse.  They want to cut Social Security, Medicare and Medicaid at a time when millions of seniors are struggling to pay their bills, and repeal the authorization for Medicare to negotiate lower drug prices. They would repeal the $2,000 cap on prescription drug costs for seniors, the $35 a month cap on insulin and the savings on healthcare premiums of $800 a year for millions of Americans under the Affordable Care Act.  And, of course, they are still determined to repeal the Affordable Care Act itself.  The Republican plan (if it can be called that; it is really just the old familiar dogma that tax cuts-in the teeth of all the evidence-trickle down and pay for themselves and that government spending is what causes problems) will only make inflation worse, not better.  The markets agree.  Look at what happened in Great Britain when Liz Truss announced an economic plan that looks remarkably like what the Republicans are proposing.  On September 23, before Liz Truss's demise as Prime Minister, Larry Kudlow, former Director of the National Economic Council from 2018 to 2021 in the Trump administration , said: "The new British Prime Minister, Liz Truss, has laid out a terrific supply-side economic growth plan which looks a lot like the basic thrust of Kevin McCarthy's Commitment to America plan".  We know how that worked out in Great Britain.  The same disaster is waiting in the wings here if we elect a Republican Congress.

Although deficit spending may have had some inflationary effect early in the Biden administration, one cannot ignore the social benefits of such spending during the pandemic emergency.  Today's inflation has been triggered more more by snarled supply chains, pent-up consumer demand, shipping industries that were slow to return to peak production and bottlenecks in refining.  Tight energy supplies and ensuing gas price increases are far more attributable to the war in Ukraine than any domestic energy legislation.  Inflation is a global problem that is worse in Europe and Great Britain than in the United States.

On immigration, another principal target of attack, the most they can come up with seems to be their "build the wall" slogan and their demonstrably false argument that the Democrats want open borders.  They ignore the fact that what is needed is bipartisan comprehensive immigration reform, which is indeed sorely required, but in which they have steadfastly refused to participate.

The Republicans other main focus is on violent crime, which is of great concern to all, and rightly so. But what is the Republican plan? From what I can see, it is mainly an attack on bail reform programs, promotion of Willie Horton-like memes and reiteration ad nauseum of the "law and order" mantra.  There is room for reasonable differences on bail reform programs, but that is not the solution to the crime problem.  A more useful tool, at least for homicide cases, would be more effective gun ownership regulations, which is anathema to Republicans.  Constant winks at, and outright encouragement of, acts of violence and disrespect for the law by the Republican leadership set the wrong example - see January 6 and the Republican response to it, Donald Trump's other violations of statutes and established rules which encourage criminal behavior, and the attack on Nancy Pelosi's husband.  Ultimately crime is more directly related to poverty and inequality.  

Republicans talk big about crime, but here is the reality.  Republicans are worse at controlling crime than Democrats.  Examples: in 2020 Oklahoma's murder rate, the most reliably measured form of violent crime, was almost 50% higher than California's and almost double New York's.  According to Paul Krugman, murder rates rose at roughly the same rate in Trump-voting red states and Biden-voting blue states.  Homicides rose sharply in both urban and rural areas.  Levels of both homicides and violent crime as a whole are generally higher in red states.  So, while concerns over the recent crime surge are valid, the right-wingers who talk tough on crime don't seem to be any good at actually keeping crime low.  Even after the 2020-21 surge, serious crime in New York, in fact, was still lower than it was when Rudy Giuliani was mayor.

Since we are addressing Republican myths, here is the reality about the Republican claim that rural America (the bedrock of Republican support) is not receiving its fair share of resources.  The truth is that rural America is heavily subsidized by urban America.  Less urbanized states receive far more from the federal government than they pay in.  In a normal year the most urbanized states are usually net contributors to the federal budget.

And, getting back to crime, except in New England, homicide rates in 2020 were generally higher in more rural states.

Republicans Will Be A Destructive Force If They Win Control Of Congress

To begin with, Republicans are threatening to oppose increasing the debt ceiling, which would force the United States to default on its sovereign debt obligations, unless President Biden reduces government spending by cutting such programs as Medicare, Medicaid and Social Security, recklessly jeopardizing payments for military salaries and safety-net benefits for low-income individuals, as well as roiling bond markets, and resulting in widespread government layoffs.

Republicans will push for a federal anti-abortion law, limit voting rights, cut back on environmental regulations, promote polluting industries and limit and make more costly health care coverage.  They have vowed to dismantle the economic and social welfare architecture the Biden administration has constructed.  Take a look at Senator Rick Scott's Rescue America Plan.  Scott runs the National Republican Senatorial Committee.  Under his plan Republicans will dictate what can be taught in public schools to conform to the dictates of their white supremacy base, do away with diversity programs, build the wall and minimize legal immigration, reduce the government workforce by 25%, sell government buildings and assets, move government agencies out of Washington or shutter them entirely, protect the nuclear family which means eliminating same sex marriage, eliminate abortion rights and deprive LGBT persons of their rights, eliminate separation of church and state, carry out an isolationist foreign policy, cut taxes and never propose any tax increases, make all Americans pay taxes even if they have minimal income, make all government programs, including Medicare and social security, lapse after 5 years unless re-enacted, and require an annual balanced budget.  The fact that this borders on insanity doesn't make it any less appealing to the Far Right which is running the Republican Party.  This is what we will face if Republicans control Congress.  This should concern everyone, not just Democrats, which is why it must be brought home, not only to Democrats who are thinking of sitting out the mid-terms, but also to non-partisans who are not committed to either Party.  Once elected, Republicans in Congress vote as a monolith.  Whatever the merits of the individual, he or she will be compelled to vote the Party line.  When one votes for a Republican, one is not voting for the individual but for the Republican program in its entirety.  In that Party there is no room for deviation from the dictates of the extreme right Freedom Caucus.

It is telling that the Republican Party did not adopt a platform at its 2020 National Convention.  Their policy agenda is so unpopular that they are reluctant to have voters, other than their base, know what they really stand for, except for the off the wall extremists like Scott.  Thus Kevin McCarthy spoke in broad generalities when he announced the Part's agenda for the 2022 mid-terms, because he knows that the positions of his base, to which he is bound, would be unacceptable to that uncommitted part of the electorate whose votes the Republicans need if he is to become Speaker of the House.  

More specifically, this is the wish list we would get with a Republican controlled Congress:

repealing all new taxes on large multinationals like Amazon and a tax on stock buybacks as well as repealing increased spending on the IRS which was enacted to raise revenues by cracking down on companies and high earners that cheat on their taxes;

passing further tax cuts, including extending some of the reductions for businesses and individuals passed in 2017 under Trump that are set to expire over the next few years;

reduction of expenditures on safety-net programs like Medicaid and supplemental nutritional assistance and reduction of future spending on Medicare and Social Security for some beneficiaries;

unwinding some of the spending from the newly signed climate law, challenging future regulations and reducing federal regulation of new drilling projects;

thwarting judicial nominations;

pushing for a national ban on abortions;

watering down the Biden's order providing student debt relief;

stalling President Biden's equity agenda focused on minorities, poor women, disadvantaged and marginalized communities through congressional investigations;

restructuring or scaling back entitlement programs such as Medicare and Social Security, most prominently by allowing Medicare and Social Security to "sunset" if Congress did not pass new legislation to extend them;

diminishing the power of the Consumer Financial Protection Bureau to regulate the finance industry.

Rejection Of The Rule Of Law

The substantive policy differences noted above are reason enough to vote for Democrats in the mid-term elections.  An even more overpowering reason to vote Democratic is that of fending off the Republican attack on the fundamental principles of the American republic - a blatant attempt to destroy 250 years of democratic government and impose in its place an authoritarian one party state governed indirectly by wealthy oligarchs through autocratic leaders.

Republicans have always been inclined to substitute the authority of a wealthy elite for written law.  They consider that a code of laws applicable equally to all persons as contrary to the rule of select individuals.  They prefer to be judged by the decree of a "superior" elite rather than by definite laws, drawn up by the dictates of reason.  They see themselves as purveyors of temporal and divine authority, although the founders of our nation were never in favor of an official religion and in fact had a hatred of arbitrary tyranny and a contempt for organized religion.

As pointed out by Mark Danner in the New York Review of Books, "American voters have not confronted so grave a choice since 1860."  The parallels of the Republican Party with the governing elites in Russia, China, Turkey, North Korea and Hungary are striking.  They all represent a backlash against the enlightenment principles that are the backbone of the American experiment.  If the Republicans prevail it will be the end of the experiment with the America of the future becoming an ever more authoritarian place where government maintains the right to intervene in personal decisions, even the most intimate - except when it comes to firearms, in which case anyone, young or old, sane or unbalanced, can go about as heavily armed as a combat soldier.

If any election cried out to be nationalized - to be fought not only on the kitchen table issues of inflation and the price of gas but on the defining principles of what the country is and what it should be - it is this November's.

Under this threat, Democrats must unite and make crystal clear to voters what is at stake.  Americans must be given a persuasive reason to vote.  This election is about safeguarding the country they know and the freedoms and rights they cherish.  This is how the issues need to be presented:

If you don't want a government that can force you to carry an unwanted pregnancy to term - vote;

If you don't want a government that can deny you contraceptives - vote;

If you don't want a government that can tell you with whom you can make love and whom you can marry - vote;

If you don't want a government that will do nothing to protect your child from a troubled teenager with an assault rifle - vote;

If you don't want a government that can ignore the people's voice at the polling place - vote;

If you don't want a government that will do nothing about rising temperatures and the danger they pose to all of us - vote

Finally, how can one vote for any member of a Party in which a majority of its House members (as well as a significant number of its Senate members) voted to overturn the certified 2020 election results; a Party of which many members treated the January 6 attempt by a violent mob to overthrow the government of the United States and hang the Vice President as a normal tourist crowd; a Party whose candidates in large numbers refuse to accept the results of the 2020 election and refuse to commit to abide by election results in their races in 2022 unless they win.  We are about to go down a slippery slope.  We need to stop before it is too late, and this is the primary message that Democrats need to get across to their own base and to those not tied to any Party.


 

Monday, June 20, 2022

MOVE OVER JUSTICE TANEY; OR, ALITO'S CRI DE COEUR FOR A RETURN TO THE LIKES OF DRED SCOTT, PLESSY V. FERGUSONAND KORAMATSU

They will do anything for the unborn, but once you're born, you're on your own.  George Carlin

The Republicans are doing everything they can to stop women from having control over their own bodies and doing nothing to stop the carnage against kids.  Maureen Dowd

Judges have to have the humility to recognize that they operate within a system of precedent John G. Roberts, Jr. at his confirmation hearing

[Stare decisis is]important because it reflect[s] the view that courts should respect the judgments and the wisdom that are embodied in prior judicial decisions.    Samuel A. Alito at his confirmation hearing

Adherence to precedent is necessary to 'avoid an arbitrary discretion in the courts . . . .'  Chief Justice Roberts (quoting The Federalist No. 78 (Alexander Hamilton))


We can still hope that Justice Alito's draft opinion in the Mississippi abortion case (Dobbs v. Jackson Women's Health Organization), which would overrule Roe v. Wade (and Planned Parenthood v. Casey) in disregard of precedent and the rule of stare decisis, which ordains the following of prior decisions, doesn't hold up, but given the Court's composition (the agenda of the Court's five most conservative Justices is so far outside the legal mainstream that even Charles Fried, Reagan's conservative solicitor general, called it "reactionary") that seems unlikely. If Alito prevails, this decision will undoubtedly be seen as one of the worst, if not the worst, in the Court's history, ranking alongside Chief Justice Roger B. Taney's Dred Scott decision in 1857 (the Constitution was not meant to include American citizenship for people of African descent, regardless of whether they were enslaved or free, and so the rights and privileges that the Constitution confers upon American citizens could not apply to them), Plessy v. Ferguson in 1896 (racial segregation laws that provide for separate but equal facilities do not violate the Constitution) and United State v. Korematsu in 1944 (exclusion of Japanese-Americans from the West  Coast Military Area during WW II does not violate the Constitution) (one could throw in Bush v. Gore as well).  In both its conclusion and its reasoning it would be a dark blot on the reputation of the Court for making judgments on the basis of the application of neutral principles of law rather than on the personal bias, political sensibilities and ideologies of the Justices.  It would give credence to any suggestion that the six conservative justices are no more than surrogates for the Republican Party and the Religious Right.

                                   Alito's Arguments from the Draft Opinion

 i) The Constitution makes no reference to abortion

 ii) Roe v. Wade imposed a highly restrictive regime on the entire nation

 iii) Roe was "egregiously wrong" from the start

 iv) Roe and Planned Parenthood v. Casey (which upheld Roe) inflamed debate and                    deepened division

 v) There has been an unbroken tradition in this country of prohibiting abortion dating              back to the earliest days of the common law

 vi) In Casey the Court came up with a phony reliance interest to justify upholding Roe as          women's reliance on abortion is of a lower order than the reliance interests that arise in          cases involving property and contract rights

 vii) Elected representatives can decide how abortion should be regulated

 viii) Women are not without electoral or political power

 ix)   The Court has overturned precedent in the past.

To anyone who has any familiarity with US Constitutional law such arguments would be comical if they weren't so pathetic.  It's almost as if Alito (who is a smart man) wants to demonstrate that he can, and will, impose his personal religious and political views regardless of whether they are intellectually cogent or consistent with Supreme Court precedent or policy.

                                            Response to the Arguments

i) There are many rights which the Court has determined or affirmed which are not mentioned as such in the Constitution .  After all, if they were we would hardly need the Supreme Court to determine what they are.  I am not fluent enough in Constitutional case law to name them all, but certain ones come to mind, such as the Miranda rule, one man, one vote, the right to have assigned counsel by the state in criminal cases when the defendant is too poor to afford one, and the right not to be subject to education in segregated public schools enunciated in Brown v. Board.  The terms "due process" and "equal protection" by their nature do not lend themselves to specificity.

The right to abortion is what is known as an "unenumerated" right, meaning that it has constitutional stature even though there is no specific text in the Constitution referring to it.  Such concept is well established in our constitutional system. The Ninth Amendment explicitly acknowledges the existence of such rights, stating that the "enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."  So, as Kenji Yoshino, a professor of constitutional law at NYU Law School, points out, the question is not whether unwritten rights will be recognized, but which ones.

Just out of curiosity, I wonder whether the right to posses an AR-15 semi-automatic weapon pursuant to the 2nd Amendment would qualify as an unenumerated right for Justice Alito?

ii) Alito shows his true colors here when he refers to the Roe precedent as highly                   restrictive.  It is only "restrictive" in the point of view of those who oppose abortion and wish to impose their religious views on others.  It is the overruling of Roe which            would be restrictive on the liberty of women to end their pregnancy by their choice.             Keep in mind that no one is being forced to have an abortion.    

 iii) "Egregiously wrong" is pretty strong language, one might say rude, arrogant and             injudicious, for reference to a Supreme Court opinion which has been followed as                 precedent since1973 and which was upheld in Casey in 1992.  Alito would seem to             want to ignore that Roe was a 7-2 decision and that five members of the majority                  were Republican appointees (a Republican appointee wrote the majority opinion) with         only one dissent by a Republican appointee. Maybe only 9-0 decisions deserve to be             considered for stare decisis treatment for Alito.

 If Alito wants to overrule egregiously wrong decisions he might start with some he             participated in, such as the Heller, Citizens United, Hobby Lobby and Little Sisters of the   Poor cases.

 iv) Roe and Casey inflamed debate and deepened division.  This is really absurd.  What         does Alito think overruling Roe will do - bring peace and quiet?  Did Brown v. Board          in 1954? No - so should it be overruled?  What about Swann v. Charlotte-                             Mecklenberg Board of Education in 1971 (busing for the purpose of                                        desegregation is constitutional)?  It is people like Alito and his fellow religionists and            Republicans who have inflamed debate and deepened division and continue to do so.

 v) Under common law as adopted in American colonies abortion was allowed until               "quickening" which occurred when the pregnant mother first felt the fetus kicking.              This would normally be toward the end of the second trimester.  This continued in                 many states at the time of the 14th Amendment in 1868 which applied the due process and   equal protection requirements on the states, and which Roe relies upon.  Roe                         is consistent with this standard.  In some states which subsequently imposed more   restrictive rules, the changes were driven by those who were concerned that Protestant   women, as distinguished from Catholic women and immigrant women, were having more     abortions the consequences of which would change the national demographics, and by   those who wanted to keep women in the home.  Alito is giving us at best poor history, if   not outright distortion.  This is substantiated in the amicus brief filed by the American   Historical Association and the Organization of American Historians in support of Jackson   Women's Health Organization.

 Perhaps even more to the point, the Court in the past has indeed said that unwritten               rights would be recognized only if they were deeply rooted in the nation's history and          tradition and implicit in the concept of ordered liberty.  The draft opinion claims to be   applying this test, but this approach would effectively freeze an 18th or 19th century   understanding of rights in place.  As Yoshino states, this approach is bizarre.  In the   Obergefell case in 2015, making same sex marriage a fundamental right, the Court   transformed the role of tradition in discerning unwritten rights.  It instead embraced an   approach that "respects our history and learns from it without allowing the past alone to   rule the present."  The Alito opinion seeks to reinstate the shackles of history on the               unenumerated rights inquiry.  The opinion is not only an assault on abortion rights, but on     same sex marriage, homosexual relationships and contraception as well.

 As David Cole, National Legal Director of the ACLU, writes, virtually all the                         constitutional rights we enjoy today reach beyond those recognized by "history and             tradition".  If we were to limit rights to those enjoyed in 1791, when the Bill of Rights          was adopted, or even to the late 1800s, when the Civil War Amendments (including the   14th Amendment) were added, many of the rights we take for granted would be in   jeopardy.  The Equal Protection Clause did not prohibit sex discrimination or racial   segregation when it was ratified in 1868.  Nor did the "liberty" protected by the Due   Process Clause include the right to use contraceptives or to choose one's sexual partner or   spouse regardless of gender or race.  

 Alito says abortion is different because it destroys potential life.  However, that                     distinction has no logical connection to his reasoning.  His argument is not that only             rights that obstruct potential life are limited to those rooted in history and tradition.  

 As to the assertion that abortion destroys potential life, the key word is "potential", in          this case, a "weasel" word to avoid having to grapple with the all-important issue of             when life, or more properly, personhood, begins and what, in fact, it is that is being   "destroyed".  That issue will be addressed below.

 Even if one were to accept Alito's version of history, the denial of these rights in the              past was totally in derogation of the concept of ordered liberty.  Such denial imposed          a patriarchal system that expected women to remain at home, confined to the private              sphere and governed by their families, their husbands and in-laws, and the concept of         coverture, that is, that a married woman did not have a separate legal existence from             her husband.  As Amanda Taub has pointed out in the NY Times, Alito's opinion relies         heavily on the reasoning of a 17th century English jurist that women's rights ought to             be constrained so that they wouldn't encroach on men's rights too much.  It is                          shocking that such reasoning can persist today.  A central tenet of such a legal philosophy   is that giving women legally enforceable rights over their own bodies is a threat to men's   freedom.  Sounds like the ridiculous claim that is being propagated today that whites are   being discriminated against, as well as the incel ideology and the "great replacement"   conspiracy theory.

 Turning again to history, Taub points out that traditional gender roles became a central          element of southern states' justification for white supremacy, including the Jim Crow            laws, based on the supposed threat from which white women had to be protected.   Preserving traditional gender roles thus became linked to protecting the racial hierarchy.   Today, the framing by the Republican Party of Roe as a part of feminism and the Party's       opposition thereto fits in with the Party's dedication to protecting and preserving existing      hierarchies, both racial and otherwise.

 vi) Again Alito shows his personal biases by denigrating women.  To judge a woman's         reliance on the right to abortion provided by Roe as of a lower order than reliance on             property and contract rights would take us back to the 17th century.  It is an                            argument hardly deserving of a response, but a quote from the opinion in Casey is worthy   of note, "... people have organized intimate relationships and made choices that define their   views of themselves and their places in society, in reliance on the availability of abortion in   the event that contraception should fail".

 vii) This is a sort of a non-sequitur.  Yes, of course elected representatives can decide how  abortion should be regulated.  So?  Elected representatives can regulate away all sorts            of rights - that's why we have the Reconstruction Amendments - so majorities in state            legislatures can't take away fundamental individual rights.

 But Alito is not so deferential to state legislatures when it comes to regulating guns              or imposing health mandates.  States can't regulate to protect living children from guns,         but they can regulate to protect unborn children. Whatever happened to judicial integrity?   Or just plain common sense?  How can you claim that mandates for masks and   vaccinations to protect the lives of others (as well as one's own life) restrict individual   freedom, but that limitations on the right to choose whether to have a child do not? 

 viii) This seems to be merely a variation of item vii), and echoes the popular sovereignty   argument of Stephen Douglas in his debates with Lincoln for the legality of slavery to be   decided by popular vote of the residents of a State.  One would have thought that such an   approach would have been ended by the Civil War.  In another such attempted return to the   discredited past, some of the restrictions being contemplated by "red" states on travel to   "blue" states to seek abortions reek of that era's Fugitive Slave Law.  

 ix)    Alito cites some thirty decisions in which the Court overturned precedent, but it has been noted that the vast majority of those decisions expanded rights, a handful watered down rights protections, but none eliminated a right altogether.  This only underscores how unprecedented the Dobbs case will be if it destroys a long recognized right.

Overruling Roe would also contravene long-standing Supreme Court policy that deference to precedent requires "special justification" for overruling an earlier decision, even if a majority of the Justices of the current Court disagree with it.  In US v IBM in 1996, one of a line of cases enunciating this policy, the Court stated as follows:

"Stare decisis is a 'principal of policy' [citation omitted] and not 'an inexorable command' [citation omitted].  Applying that policy, we frequently have declined to overrule cases in appropriate circumstances because stare decisis promotes the even handed, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process [citations omitted].  '[E]ven in constitutional cases, the doctrine carries such persuasive force that we always have required a departure from precedent to be supported by some 'special justification' [citation omitted]" (emphasis added).

Ironically, this opinion was written by Justice Thomas, an outspoken advocate of overruling Roe.

Alito himself, apparently when it suits his cause at the time, makes the case for following precedent.  In Ramos v. Louisiana, dissenting from the overruling of a precedent by the majority, he writes, "there has been massive and entirely reasonable reliance" upon such precedent, and further states that "stare decisis exists to promote . . . evenhandedness, predictability, and the protection of legitimate reliance."

Alito has cited no "special justification" for overruling Roe, the requirement mandated by Supreme Court policy, although, as indicated below, he makes a desperate and dishonest attempt to compensate for this omission.

Although the pro-choice lobby would like to take this opportunity to debate the pros and cons of the Constitutional right to abortion de novo, that is not what is legitimately at issue here.  That question has already been addressed and answered in Roe almost 50 year ago when the Court determined that the Constitution provides women with a right to privacy which recognizes their freedom to choose not to carry a pregnancy to term, subject to certain limits in the later stages of pregnancy.  The issue in Dobbs, as in any case involving the prospective overruling of precedent, is, or should be, whether anything has taken place in the intervening period following the original decision which would justify changing the ruling of law in such case.  The burden of proof in making such a showing is on the party or parties seeking such change.  In Dobbs they (and Alito in his draft) have failed to do so.  The considerations which are relevant to making such a determination are the following:

(a) has the rule established in the case whose precedent is being challenged proven to be intolerable in defying practical workability?

(b) is there so little reliance on the rule that no hardship would result as a consequence of it being overruled?

(c) have related principles of law subsequently developed which have left the rule no more than a remnant of abandoned doctrine, an anachronism, or has there been a significant change in, or subsequent development of, constitutional law?  

(d) have facts so changed or come to be seen so differently as to have robbed the rule of significant application or justification?

The answer in all instances is clearly "no".  That should be the end of the matter.  It is not enough that the people who opposed the rule in the first place want to relitigate it.  The Court has spoken.  You don't get a "do-over" just because the composition of the Court has changed.  But that is just what Alito is attempting to do (which raises questions as to his judicial integrity and impartiality).

                                               When Does Life Begin

As noted immediately above, Dobbs is not, or should not be, an abstract debate about the relative merits of the arguments of the pro-choice and pro-life movements as to (i) whether the 14th Amendment to the Constitution allows a government to violate a woman's right to privacy and invade her bodily integrity by taking away her procreative control and forcing her to carry a pregnancy to term against her will, and (ii) whether personhood protected by the 14th Amendment commences at conception.  We are past that point.  Those questions were resolved in Roe, as modified in Casey, in the negative.  And there is no "special justification" for overturning them.  Rather Dobbs turns on, or should turn on, the nature of the judicial process, the establishment of legal norms in a democratic society and the finality of judicial decisions.  

However, since Alito, motivated by his political and religious biases, is clearly not going in this latter direction, it may be worthwhile to analyze on the merits the fundamental substantive argument of the pro-life position in such debate, the claim that abortion destroys life.  (Even such conservative constitutional giants as Justice Scalia and Robert Bork criticize Roe only on the ground that it recognizes a 14th Amendment right to abortion through the  right to privacy, not that it rejects the existence of constitutionally protected personhood from conception.  In fact, they would deny personhood while the fetus is still in the womb.)

This is the so-called moral issue that anti-abortion advocates argue justifies their opposition to the right of a woman under the 14th Amendment to determine herself as to whether to bring a pregnancy to term.  The pro-lifers claim that they are saving the life of an "unborn child" (while ignoring the impact on the life of the prospective mother of the bodily burdens of pregnancy, the destruction of her right to procreative control and her interest in sex equality; Linda Greenhouse has even suggested that forcing a woman to carry a pregnancy to term could be treated as "involuntary servitude" in violation of the 13th Amendment).  The issue as to whether abortion results in the taking of a life should be resolved on the basis of medical science, and should stand or fall on that basis alone, not on the "morality" of abortion as such.  This is not to say that the taking of a life is not a moral issue, but that the "moral" issue is a disguise for a political/religious issue, and that the question can only be resolved by a medical determination as to when "life" begins.  That is, is abortion the taking of a life? If so, we would be faced with an issue falling under the rubric characterized by Isaiah Berlin as value pluralism, where two universal rights are in conflict with one another.  We are spared this dilemma fortunately by the fact that, as demonstrated below, constitutionally protected life does not begin at conception, and therefore there is no basis for denying a woman her constitutional right to abortion by overruling Roe.  (It is ironic, if not hypocritical, that the opponents of abortion usually have no qualms about the taking of life via the death penalty or about the loss of lives through their failure to regulate gun purchases, which issues for them apparently have no moral components.)  

But this characterization of the pro-life issue is misleading, at best.  The underlying premise of the pro-life movement is, for the most part (there is a strong flavor of misogyny as well), a religious one, evincing the crusade of the Christian Right, whether evangelical or Catholic, to impose its religious views and rules as to the family and the role of women in society as a whole.  These seem to derive from their reading of the Bible (for what it is worth, and questionable at that) and their ideas about, and seeming obsession with, sex and sexual morality, i.e., no pre-marital intercourse, no sexual relations outside of marriage or for any purpose other than to propagate, no same sex marriage, no marriage of blacks and whites, the "sin" of being gay.  Prohibiting abortion furthers such causes as dictated by these beliefs.  In reality this is about the attempt to create a theocratic state.  Alito's draft opinion is as much about that as it is about abortion.  It implicitly bolsters his view that "religious liberty is in danger of becoming a second-class right" (see his speech at the Federalist Society in November 2020).

In fact, even on religious grounds the Christian Right contention that life begins at conception is an outlier.  In Islam the prevailing view seems to be that life begins only upon ensoulment, which occurs 120 days after conception.  Thereafter abortion is the taking of a life and is prohibited other than to protect the life of the mother, but prior thereto abortion is permitted.  It has been stated that in Jewish thought it is widely accepted that as long as a fetus is in the womb, it has potential, but not full personhood.  Another commentator has said that Jewish law was consistent with life beginning at birth.  Given Alito's stated concern with the loss of religious liberty, why does he not treat the denial by States of the right of Jewish and Islamic women to choose to have an abortion granted by their religions as a deprivation of religious liberty?  How does this differ in principle from the affirmation by the Supreme Court of the right of employers to deny providing health insurance for birth control to their employees based on the religious beliefs of such employers?  Is the denial of abortion rights not an infringement on the free exercise of religious belief?  Is this not a violation of the separation of church and state?  Is this not the imposition of one set of religious beliefs over another?

Even if one disregards the disingenuousness of the pro-life claim that they are attempting to save lives (not of the mothers, of course, but of  "unborn lives", an oxymoron if there ever was one), the proposition fails on its own terms if one views it from a medical standpoint and actual practice.  The relevant question is not whether or not one is pro-life, but "when does protected 'life' begin"?

Let's start with some basic numbers.  In the United States in 2019 (the latest year for which I could find such data), 92.7 % of abortions were performed in the first trimester, that is, 13 weeks; 6.2 % were performed within 14-20 weeks, and less than 1% within 21 weeks or more.  42.3% were early abortions, that is, within 9 weeks.  Even then it has been suggested that one reason for abortions after the first trimester is only because of the barriers to abortion in the U.S.  It takes time to save money for the procedure, or to arrange transportation, child care and time off from work to travel to a clinic if one is not nearby.

One standard for the beginning of life is viability of the fetus, which is the point at which a fetus can survive outside the womb.  This is generally presumed to be at 24 weeks, but apparently it can be anywhere within 20-26 weeks.  Thus there is a cogent argument that less than 1% of abortions take a "life" by this standard.  Even in those cases there may be instances in which the mother's life or health was at stake or the fetus had to be aborted for other medical reasons.

Another, and more convincing  approach (although reaching a similar result), is that a human life begins only at the time the fetus develops the infrastructure necessary for consciousness rather than mere viability.  It is only then that it can arguably be considered a person, or at most a proto-person, not yet an individual.  This requires a sophisticated network of highly interconnected components and nerve cells.  Its physical substrate, the thalamo-cortical complex that provides consciousness with its highly elaborate content, begins to be in place between the 24th and 28th week of gestation (thank you, Scientific American).  More specifically, the thalamus, which is necessary for pain and conscious perception, does not appear until the end of the second trimester.

In the first few weeks of development human embryos are indistinguishable from fish or bird embryos.  For many weeks after that they are recognizable as mammalian embryos, with a heart and a basic brain, but anatomically no different from mouse or pig embryos at similar gestational stages.  It is only after week 8 that the first rudimentary brain activity, the kind that is observed in organisms as simple as insects, can be observed.  The very beginnings of our higher brain structures only start to appear between weeks 12 and 16, and the coordinated brain activity required for consciousness not until 24-25 weeks.  The cerebral cortex which is necessary for consciousness becomes operational after 25-32 weeks of gestation.  Thus, consciousness, albeit not yet personhood, cannot rationally be deemed to exist before approximately the end of the second trimester at the earliest.  It is only then that the fetus can be argued in any rational sense to have acquired the moral status of a life entitled to protection.

Putting this in a different perspective, there were about 625,000 abortions in 2019, about 195 abortions per 1000 live births.  If less than 1% of these abortions took place after the second trimester that would be at most 6,250 "lives" ended, including those required to preserve the life or health of the mother or for other medical reasons.  A life is a life but how does this compare with 45,000 gun deaths in 2020, including 24,000 by suicide.

A third, and most convincing, standard is that life begins at birth.  There is much to be said for this standard which, among other things, is much more precise than the other standards set forth above.  It has the legal and practical virtues of being clear, practicably usable, and universally salient and recognizable.  It is not without reason that we date the age of humans from the date of birth.

The mass of mental content to which the neonate is exposed on birth are in fact essential components for developing conscious experience, memory and emotion, which form the basic material for subjective self-conscious thought and experience - in other words the objects of conscious life to which the new human must be exposed before it can develop sensory reaction and a sense of itself as opposed  to the rest of the world; when it becomes aware of itself as an individual entity, a separate being different from nature and other people.  Even this stage is not yet fully reached at birth, but it cannot take place before birth.

The neonate no longer draws its basic life support from its pregnant woman and depends on her for survival.  Its presence in the world is no longer mediated through the body of the pregnant woman.  This separate embodiment enables the neonate to be drawn into the social world of others in ways previously not possible; in short, to be treated as a member of the social community in ways that are precluded by its social estrangement when enclosed in the womb, and which entitles it to the protections mandated by society through its moral and legal rules.

Birth corresponds to a development of momentous significance socially, biologically and psychologically, in that it places the new human being in the necessary context for the development of conscious life, a sense of self, agency.  

Let's look at the ruling in Roe.  In that case, the Court ruled that the States could place no restrictions on a woman's right to choose to abort during the first trimester.  From the second trimester on the States could enact medical regulations on abortion procedures so long as they were narrowly tailored to protecting the mother's health.  From the third trimester on a State could legally prohibit all abortions except when necessary to protect the mother's life or health (thus rejecting birth, except in the case of risk to the health of the mother, as the beginning of life entitled to protection).  For the most part this conforms to the medical analysis as to viability of the fetus or the underpinnings of consciousness in its determination of personhood.  Casey modified Roe to some extent by dropping the trimester structure, but left the woman's right of choice intact through viability, while providing less restrictive limits on the State's ability to regulate.  As noted above, neither viability nor preliminary consciousness generally take place before the end of the second trimester and in practice 99% of abortions take place within 20 weeks so the rules of Roe and Casey effectively conform to medical science as to the minimal standards for determining the beginning of "life" deserving of protection under the Constitution.

Roe and Casey do not accept the pro-choice argument that life begins at birth (which is the most realistic, convincing and ideal solution), but also reject the pro-life notion that life begins at conception while accepting the argument that a right to life occurs at some point short of birth, and thus limit their rulings to application of the minimal standards for ascertaining the beginning of "life" as determined by medical science.  One would think that this would would be an acceptable resolution of any purported constitutional conflict between the mother's right to freedom of choice and the nascent human being's right to life, leaving aside the ongoing battle of the degree of regulation the States can impose before viability.

But not if Alito gets his way.  From a medical standpoint (and intellectually) the opposition to abortion as the preservation of "life" starting from conception as argued by the pro-life lobby is without merit, but Alito and his conservative allies on the Court are prepared to ignore science and precedent to impose their religious and political views on others.  Nor, if they are successful, will the pro-life movement stop at that.  They will move on to the next stage, banning birth control and contraception, with Griswold v. Connecticut (the 1965 case establishing the right to privacy and declaring that married couples had a constitutional right to use contraception) in their sights (see the NY Times, June 14, 2022).  Individual State bans of abortion will not be sufficient for these religious zealots, once referred to by a fellow Republican as "the people who brought you the Spanish Inquisition and the Salem witch trial."  As Mary Zeigler, a law professor at the University of California Davis School of Law, has stated, "anything short of a nationwide abortion ban will not satisfy them."

                                                        Alito's Race Card

The weakness of Alito's rationale for overruling Roe as a matter of law, history, medical science and Supreme Court policy is such that he apparently feels the need to try to smear the pro-choice movement with an ahistorical argument (buried in a footnote), by citing an amicus brief (filed by a small group of evangelical leaders and conservative organizations) and a concurring opinion by Justice Thomas in an earlier case linking the right to abortion to the historic eugenics movement and racist campaigns to limit Black reproduction (relying on the fact that Planned Parenthood founder Margaret Sanger supported both abortion and eugenics), thus reframing the opposition to abortion as racial justice.  Historians of the eugenics movement consider the Thomas argument "deeply flawed" and that it "distorts history in the service of ideology".  That doesn't seem to have deterred Justice Alito.  

Because the logic of Alito's argument for overruling Roe and Casey is so weak and without merit, he is grasping wildly for the "special justification" that has repeatedly been mandated by the Court to justify overruling a precedent (as described in ix) above), and which is otherwise lacking in his opinion.  In doing so he has shamefully abandoned any semblance of integrity or objectivity to seek the cover of the false claim of abortion as "racial injustice" as a rationale for overruling Roe. 

Conveniently for his argument, he neglects to note that, as Melissa Murray points out in a 2021 article in the Harvard Law Review, Black women were historically especially vociferous in their desire for broader access to contraception and abortion, and that Black civil rights groups today overwhelmingly support abortion rights.  Omitted also is any reference to the statistics in a brief filed in the case by 18 civil and women's rights groups, including the NAACP Legal Defense and Education Fund and the League of Women Voters, that abortion legalization in the 1970s led to a 9.6% increase in Black women's college graduation rate and that abortion access resulted in a 6.9% rise in Black women's labor market participation rate - three times higher than for women generally.  According to a Pew survey in 2021, 67% of Black adults supported a right to abortion in all or most cases.

                                                  Laws of Other Countries

The laws of other countries, of course, do not bind the U.S. Supreme Court, but they may be of interest in considering the "moral" claim of the pro-life movement, irrelevant as such claim may be to determining whether to overrule Roe.

Since 1994 just three other countries have rolled back abortion rights, all Catholic countries.  In that period 59 countries have expanded abortion rights.  If Roe is overturned, any States that ban or severely limit abortion at all stages of pregnancy, as roughly half are expected to, would join a minority of countries that prohibit it. 

The vast differences in treatment of abortion worldwide suggest that there is no universal consensus that abortion in the first trimester or prior to viability is the taking of a "life".  It would appear that countries with 60% of the world's population and 75% of women of reproductive age permit abortion, although with some cutoff, usually at the end of the first trimester with further exceptions in many cases.  Thus, it is clear that the great majority of nations recognize that life does not begin at conception, with varying views as to when it does begin, but certainly not before the first trimester.  As such, even a claim as to be preserving of a life falls short of any universal agreement.

                                                            *    *    *

In short, Roe and Casey hold up well, and overruling cannot be justified on any grounds, legal, medical or moral.



                                                                                                                                                                                                           



                                            

                                             

                                                

                                           

                                                 


 


Thursday, March 24, 2022

                                              TODAY UKRAINE; TOMORROW ?


Quo vadis? This is not really the beginning of where we are going.  The beginning was a long time ago.  As Faulkner said, "The past is not dead, it is not even past."  Russia's acts of expansion and aggression are part of its history and culture.  As the current crisis in Ukraine signifies, there is nothing to suggest that it will stop here or now.  It is part of the national DNA , long pre-dating Putin.  There was never a chance for "reset", and any such concept, if it still survives, should be discarded.  George Kennan's containment strategy still applies today and probably tomorrow as well.  It turns out it may not have gone far enough in its prophecy - he was right about the Soviet Union collapsing of its own weight, but it didn't take into account that it was Russia itself which was the antagonist under the guise of communism which eventually lost whatever appeal and strategic value it may once have had.  It was always Russian nationalism.  Russia will be a permanent adversary.  It is a renegade nation.  It has never believed in the Western tradition.  It does not have the political system or the institutions which would allow it to do so.  To develop constructive relationships nations need not always agree, but they need to be operating under the same set of rules.  Russia has never the subscribed to the generally accepted rules of conduct of the Western nations, such as a pluralistic political system that encourages competition and debate, democratic elections, freedom of speech and press, religious tolerance and independent judiciaries.  In fact, it rejects them.  It rejects the idea of a rules based international order.  There is no room for accommodation unless Russia changes its historic pattern.

First, a disclaimer.  I have no no expertise or experience when it comes to Russia, I have never been there, and I think the only Russians I have met have been New York City taxi drivers.  I rely a great deal on the writings of Angela Stent, a non-resident fellow at Brookings, Stephen Kotkin, a professor at Princeton, Serhii Plokhy, a professor at Harvard, and Timothy Snyder, a professor at Yale.

Russia is not only a geopolitical threat. Russia's world view, particularly as articulated by Putin, represents the historical  reactionary forces that have recently gained support from autocratic leaders or would-be leaders in the West and in countries that since WW II have otherwise evinced a desire to emulate the West; even in the US.  And this, I believe, has encouraged Putin to take the action he has in Ukraine.  This philosophical conflict with the West has even greater long term significance than the current geopolitical issue.  It may not be the Cold War, or even a large scale "hot war" (at least not yet), but it may define the course of this century.  The Cold War was never really a conflict with communism but a conflict with Russian nationalism and the Russian value system.  In fact, for some in Russia the Cold War never ended.  Perhaps for them it never can.  Putin argues that Russia's national security is at risk, but it is really his political security which is at stake as the comparative economic benefits and personal liberties available in the Western ethos move closer geographically to Russia.

In 2021, before the most current Russian invasion of Ukraine, Plokhy wrote, "The ongoing military conflict in Ukraine is not only a contest of political values.  Russia's effort to stem its imperial decline by seizing the Crimea and occupying part of the Donbas presents a major threat to international order, with its bedrock principles of sovereignty and territorial integrity of nation-states, on a level not seen since the end of World War II."

                                                What Kind of a Country is Russia?

Russian culture/society requires a czar, an autocrat, an authoritarian leader.  The serfs may have been freed, but this is still a nation of serfs who prefer to be dominated by an autocrat.  Notwithstanding the accomplishments of Russians in literature, art, music and science (although I am not sure how many of them were ethnic Russians and how many were from other ethnic groups within Russia or the former Russian Empire or how many were liquidated by Stalin), listening to Putin raises the question as to how far the Russians have come from the barbarian hordes which once populated the steppes.  Think of the Molotov-Ribbentrop pact and its secret protocols which allied Russia with Hitler and allowed them to divide between them territories in Poland, Romania and the Baltic states, the  Stalin imposed genocidal famine on Ukraine in the 1930s which starved 3.9 million to death, the show trials and Stalin's Great Purge/Great Terror of 1936-38 in which over 700,000 were killed and one million sent to Gulags, Stalin's murder of Trotsky in 1940, the Katyn Forest massacre in 1940, the sell-out of the Republicans in the Spanish Civil War, the defenestration of Czech Foreign Minister Jan Masaryk in 1948, the bloody suppression by Russian troops of the Hungarian and Czech protests in 1956 and 1968, government targeted assassinations and murders throughout the world, the poisoning of the Kremlin's arch critic, Aleksei Navalny, and his subsequent imprisonment, the poisoning of Sergei Skripal and his daughter in the UK in 2018, the death  in prison of Sergei Magnitsky, the long history of the Gulag and the war crimes currently being committed against the civilian population in Ukraine.  These are not nature's noblemen.

Due to its size and diverse multi-ethnic society with accompanying fear of disintegration, Russians are obsessed with order and stability at the cost of individual liberty.  For this it always requires an external enemy.  They have endured a thousand years of repressive autocracy, secretive government, a lack of individual and property rights and expansionist foreign policy, with brief periods of reform followed by Putin authoritarianism.  The Renaissance, Reformation and Enlightenment have passed Russia by, and in fact Russia is the contemporary embodiment of the counter-enlightenment.

Western concepts of individualism, competition and free expression are alien to the more holistic, organic communal Russian values.  Or as Putin describes it - managed or sovereign democracy.  According to Michael McFaul, the former US ambassador to Russia, "Putin is trying to turn Russia back into a totalitarian dictatorship of the pre-Gorbachev days".

                                                 Historic Relations with its Neighbors and the West

Russia is permanently expansionist for cultural, political and historic reasons and its national paranoia engenders a fortress Russia mentality.  (Catherine the Great: "I have to expand my borders in order to keep my country secure.")  This so-called defensive expansion is in part due to Russia's lack of natural borders, but Russia also has retained an imperial mindset based on a 19th century Concert of Europe or balance of power frame of mind.  In the 1830s or so the foundations of the Russian imperial identity were formulated as autocracy, Orthodoxy and nationality; nationality being ethnic Russian, the preservation of Russian cultural dominance.

Russia is and historically has been obsessed with the West.  It is schizophrenic, both resentful and envious.  Putin plays to the dual legacies of superiority and inferiority complexes that for centuries have shaped Russia's view of its role in the world.  Moreover, many Russians believe their right to self determination is constantly challenged by the West.  George Kennan described the psychology of Stalin's regime as paranoid, viewing the outside world to be "evil, hostile and menacing".  Nothing has changed.

According to a former LA Times bureau chief, by the time she had left Russia she had come to accept that "hatred of the West and of the West's collaborators was not a sideshow or an occasional propaganda point but the very foundation of Mr. Putin's rule.  It wasn't only a deep hunger for Russian empire; there was a desire for vengeance, too."  She described it as institutional hatred.  Russia is "still fixated on the same handful of grudges, stung and distrustful over the humiliation of the Soviet collapse and the perceived treachery of NATO expansion".  In the view of Russia's leadership, Georgia and especially Ukraine must be brought to heel; the Russian empire would rise again.

For the Soviets, NATO was the foe because it embodied the Western resolve to resist them. The fixation with NATO did not end with the Soviet collapse.  In the early 2000s there was talk of Russia becoming a member of NATO.  One problem was that Russia would have to accept NATO's rules if it joined.  These were rules written in Washington and Brussels.  Putin, seeking to regain Russia's position as a great power, bristled at accepting the Western agenda.  Russia wanted to interact with the US as an equal, with the power to co-determine how NATO was run. It wanted an equal partnership of unequals.

                                                Russia's View of its Role in the World

Russia dreams of a role in the world beyond its capabilities.  Although it has the largest land area of any country it is only 9th largest in population and 11th largest in GDP (its GDP is less than New York State).  The US produces 50% of global GDP; Russia produces 3% of the world's economic output.  It exports little beyond oil, gas, coal, some minerals and arms.  It is not an industrial power.  It is a petrostate.  John McCain called Russia a gas station masquerading as a state. Or as one commentator has said, the only two real things in Russia are oil sales and theft; the rest of it is all a kind of theater.  It is a kleptocracy.  It looks less and less like an advanced nation.  Economic backwardness persists.  The disparity between Russia's self-concept as a great power and the reality of its capabilities, both natural and man-made, has limited its ability to play the world role it believes it is destined and entitled to play.  Economically and politically they have a hard time matching the West so they resort to coercion.

Russia wants to have its opinion taken into account; it is upset that the West doesn't recognize its special status as a great power.  Russia feels that it has a special place in the world, a special mission.  According to Richard Holbrook, what Russia wants is to restore a sense, however symbolic, that they still matter in the world.

If it were not for its nuclear weapons it would be a third rate power which could be ignored.  It is this perceived lack of recognition, of the respect which it feels it is entitled to, and which Putin appeals to, these delusions of grandeur, which contribute to its aggressive behavior.  This, its national character, is unlikely to ever change.  

                                                 Putin

Putin is not rational, but has the mentality of a gangster who is trying to punch above his weight.  He is obsessed with his legacy and his place in Russian history.  He resents being ignored.  He believes that he, as the leader of Russia, should have a significant say in all international decision making.  Out of desperation he draws attention to himself and Russia by the forays into Georgia and Ukraine and annexation of Crimea.  He resembles Hitler in his Lebensraum movement into the Sudetenland and German speaking lands to the east.

The core element of the "Putin Doctrine" is getting the West to treat Russia as if it were the Soviet Union, a power to be respected and feared, with special rights in its neighborhood and a voice in a every serious international matter.  The doctrine holds that only a few states should have this kind of authority, along with complete sovereignty, and that others must bow to their wishes.  It entails defending incumbent authoritarian regimes and undermining democracies.  The doctrine is tied together by Putin's overarching aim: reversing the consequences of the Soviet collapse, splitting the transatlantic alliance, and renegotiating the geographic settlement that ended the Cold War.

Putin believes that Russia has an absolute right to a sphere of privileged interests in the post-Soviet space.  This means its former Soviet neighbors should not join any alliances that are deemed hostile to Moscow, particularly NATO or the European Union.  Putin has made this demand clear in the two treaties proposed by the Kremlin on December 17, 2021, which require that Ukraine and other post-Soviet countries-as well as Sweden and Finland-commit to permanent neutrality and eschew seeking NATO membership.  NATO would also have to retreat to its 1997 military posture, before its first enlargement, by removing all troops and equipment in central and eastern Europe, which would reduce NATO's military presence to what it was when the Soviet Union disintegrated.  Russia would also have veto power over the foreign policy choices of its non-NATO neighbors.  This would ensure that pro-Russian governments are in power in countries bordering Russia - including, foremost, Ukraine.  As Chancellor Olaf Scholz of Germany recently said, Russia has just moved "to wipe an entire country off the world map".

Angels Merkel saw through Putin back in 2014 at the time of the Russian launch of a war in Southeastern Ukraine and annexation of Crimea: "Russia is violating the territorial integrity and the sovereignty of Ukraine.  It regards one of its neighbors, Ukraine, as part of a sphere of influence.  After the horrors of two world wars and the end of the Cold War, this calls the entire European peaceful order into question."

Putin's Russia has defined its role in the world as the leader of conservative nations that espouse "traditional" values and as a protector of leaders who face challenges from the "color revolutions" - popular uprisings against authoritarian governments - which Putin believes are orchestrated by the West.  The image of Russia as the defender of the status quo - against what is depicted as a revisionist, decadent West trying to promote regime change against established leaders - is an integral part of the Russian idea.  Putin has been taken by the ideas of Russian ultranationalists who view Russia's destiny as a conservative empire in perpetual conflict with the liberal Western world.  Putin has said that Western Christianity is decadent because it supports LGBTQ rights and multiculturalism.  Russia is depicted as the bastion of forces that oppose chaos and liberal ideas.  He is committed to the idea that Russian civilization differs from Western civilization.  Putin has taken the position that the rule of law is not a universal aspiration, but part of an alien Western civilization.  Putin represents traditional, collectivist, authoritarian Russian political culture and appeals to a sense of Russian exceptionalism, which defines itself in opposition to the West.  He is driven by a concept of ethno-nationalism, an idea of nationhood and identity based on language, culture, blood and soil- a collectivist ideology with deep roots in Russian history and thought.  According to Timothy Snyder, the idea of Russia as a separate civilization from the West with which it competes goes back centuries, to the roots of Orthodox Christianity and the notion of Moscow as a "third Rome", following Rome itself and Constantinople - a new Byzantium.  

He claims that since the Soviet collapse there is a mismatch between Russia's formal borders and its  national and ethnic borders, and this is a threat to Russia's security.  Russia thus has a right to come to the defense of the 22 million Russians under threat outside Russia in post-Soviet space (shades of Hitler's Nazi Germany).  What certainly resonates today is the idea that there is one big Russian or Slavic nation, with maybe different tribes, but basically they are the same nation.  That is the model, from the nineteenth and the beginning of the twentieth century, which Putin now subscribes to when he says Ukraine has no legitimacy as a nation.  What we see now is a return to a pre-revolutionary understanding of what Russians are.  It is a very imperial idea of the Russian nation, consisting of Russians, Ukrainians and Belarusians.  The latter two groups don't have a right to exist as separate nations.  We are almost back to the mid-nineteenth century with imperial officers trying to hinder the development of Ukrainian culture and ideas.  Putin's nationalism represents a civilizational identity that suggests a common culture and political boundaries and justifies conquest and irredentism.

I was originally skeptical of the expansion of NATO.  Some have blamed that for the current crisis. But now we know why we needed it.  NATO enlargement has been only one of the reasons for the deterioration of Russia's relations with the West.  The most important reasons are Putin's obsessive nostalgia for the historic Russian empire, his resentment over the USSR's loss of its empire following its cold war defeat and Russia's unwillingness, over the last quarter century, to accept the rules of the international order, including acknowledging the sovereignty and territorial integrity of the post-Soviet states and supporting a liberal world order that respects the right to self-determination.  If NATO had not been enlarged would Putin have allowed the nations of Central and Eastern Europe to live in peace?  If Estonia, Latvia and Lithuania had not joined NATO would they still be independent states?  Doubtful.

Russia is still the nationalistic, expansionist, empire building police state it has historically been.  It is part of a pattern.  Putin appears to be attempting to turn back the clock, not merely to the heyday of Soviet Communism but to the time of an Imperial Russia. Whether it be granting political asylum to Edward Snowden, or actively engaging in supporting anti - government groups through a media, social network and cyber security campaign, or interfering in foreign elections, Russia under Putin is constantly on the attack.  And now, as we see, militarily.  To quote President Biden, "This was never about genuine security concerns on their part. It was always about naked aggression, about Putin's desire for empire by any means necessary, by bullying Russia's neighbors through coercion and corruption."

As Ivan Krastev, Chairman of the Centre for Liberal Strategies in Sofia, argues, "Even if Ukraine were autocratic, it would not be tolerated by Putin.  He's reconsolidating imperial nationalism."

Zbigniew Brzezinski, former National Security Adviser, has stated, "It cannot be stressed enough that without Ukraine, Russia ceases to be an empire, but with Ukraine suborned and then subordinated, Russia automatically becomes an empire".  As Ukraine moves closer to the West, Putin may think this is his last chance to do so.

                                                Reflections in the Mirror

It is no wonder that the Republican right has shown an affinity for Putin.  They are cut from the same cloth.  The new right is more Bolshevik than Burkean.  They want to overthrow, bypass or undermine existing institutions, to destroy what exists.  They are scornful of compromise, unmoved by conventional understanding of facts, evidence and science, and dismissive of the legitimacy of its political opposition.  The only difference may be that the Republicans don't control atomic weapons, at least not now.  Ukraine on the world stage is a reflection of what the ultra-right is pursuing in the US.  With the internet and the web, global geopolitics can no longer be separated from domestic politics, and the latter no longer stops at the water's edge.  Putin and Russia are the cutting edge of the modern counter-enlightenment which seems to be engulfing the world, including our own country.  What is so shocking is that the Republican right, until it sensed that the wind was blowing in a different direction, didn't even try to disguise its admiration for Putin.  Toxic partisanship seems to have eased up for the moment, but only slightly.

As recently as March 8, Mike Pence was praising Trump's "management" of Putin: "I do believe that the reason why our our Administration is the only American administration in the twenty-first century where Putin did not try and grab land and redraw international borders by force is because he saw American strength."  Some management; Trump's threat to leave NATO encouraged Putin's current invasion of Ukraine.  Pence's political organization is claiming that Putin's invasion was precipitated by a "horrific decision": Biden's revoking of the permit for the Keystone XL pipeline.  Ron DeSantis said of the Russians: "When Trump was President, they didn't take anything.  And now Biden's President, and they're rolling into Ukraine."  Kevin McCarthy argued that Democrats are unfairly blaming the Russian invasion for the current high gas prices when the real problem is their lack of love for fossil fuels - their failure to authorize more pipelines, new leases on public lands, and more drilling: "These aren't Putin prices. They're President Biden's prices."  All of this is disingenuous at best.  None of this would have any short term effect on gas prices. 

The Texas Republican, an organ of the Republican Party, asserted, "This war didn't have to happen."  Mr. Biden's White House "caused this".  Senator Jim Risch of Idaho claimed that the carnage depicted in President Zelensky's address to Congress was a direct result of a response by the Biden administration that had been "slow, too little, too late". 

Senator John Kennedy traced the invasion to the withdrawal of US forces from Afghanistan, the failure to attack Syria after it used chemical weapons, and the Russian seizure of Crimea, noting that this all happened while Joe Biden was either President or Vice President.  Of course, he neglected to mention that he was among eight Republican Senators who visited the Kremlin in 2018 after release of a bipartisan Senate Intelligence Committee Report which determined that Moscow had interfered in the 2016 election on Trump's behalf.  

He also ignored the four years under Trump during which he repeatedly undermined NATO, sided with Mr. Putin over his own intelligence community on Russia's interference in the 2016 election and tried to bring Russia back into the community of developed nations.

Or the ever quotable Marjorie Taylor Greene (the gift that keeps on giving) declaring that an independent Ukraine only exists because the Obama administration helped overthrow the previous regime, an apparent reference to the popular uprising that took down a pro-Russian president of Ukraine - actually two Ukrainian governments ago.  By the way, she opposes any intervention although she also blames the Biden administration.

Representative Madison Cawthon of North Carolina called Mr. Zelensky a "thug", echoing Russian propagandists.

Senator Ted Cruz also blames President Biden for the invasion, arguing that the withdrawal from Afghanistan and Biden's decision to waive sanctions against the Nord Stream II natural gas pipeline caused the attack. Actually the latter was only an expansion of an existing pipeline and had already been completed, just awaiting administrative approval.  Indeed eighty percent of the expansion was built under the Trump administration.

 Aside from the sheer stupidity of these remarks and their divorce from reality, it is appalling, although perhaps not surprising, that these Republican Party leaders are trying to turn a human tragedy to partisan advantage.  

Bipartisan resistance to Putin is critical; American power is dependent on its democratic basis, the erosion of which has no doubt encouraged Putin's move into Ukraine.  

                                                Going Forward

Notwithstanding the sanctions, Putin is determined not to stop in Ukraine until he takes the entire country, however long it may take and regardless of the casualties on both sides (or the desires of the Ukrainians who voted for independence from the USSR by 92 % in a 1991 referendum; the majority of every region was for independence.  Prior to the referendum polls showed that even 58% of ethnic Russians in Ukraine were in favor of independence.). If he continues in his quest, we have to recognize that there is a strong likelihood that he will ultimately succeed militarily, even if at a high cost, at least for the time being.  In misjudging the West he has left himself no way out. Ukraine will become occupied territory, much as was the case when the Nazis occupied most of Western Europe during WW II and the Soviet Union acted likewise in Eastern Europe after WW II.  Putin will eliminate the democratically elected leadership and impose a puppet government of Quislings to administer a satellite state with the support of Russian troops.  But even if the sanctions can't stop Putin for now in Ukraine, if the foray into Ukraine is not made extremely economically painful, Putin will not stop there and will move into Georgia, the three Baltic states and the rest of Eastern and Central Europe next, all of whom were eager to ally with the West after suffering the oppression of the Soviet empire.  Even Finland may be at risk.  Russia under Putin sees no limits on its aggression in its desire to recreate the Russian empire. 

The full range of economic sanctions should be applied, particularly with regard to technology transfer; arms supplies to Ukraine should continue as well.  The US embargo on imports of oil and gas from Russia is important, even if it is mostly symbolic. Long term the European dependency on Russian oil and gas must be terminated, and the Europeans should eventually join the embargo, even if that is not practical immediately.  We and our allies should start building the foundation for ending such dependency immediately through increased exports from other oil exporting countries and increased LNG trade, although this may take time.  Nevertheless we should push as far as possible now consistent with keeping our allies together even it requires some sacrifices on our part (including high gasoline prices, perhaps softened by subsidies for those who are hit hardest).  This will be necessary to foreclose any further aggression by Putin into Eastern and Central Europe.  The sanctions must be maintained until Ukraine is able to resume its full sovereignty and independence.  This may take months and even years.  The confrontation with Russia will be long term.  In the meantime the US and its European allies should support any Ukraine government-in-exile and, as has been suggested, aid any long term insurgency from covert bases in Romania and Poland.  It should also expand its military readiness in Eastern Europe with boots on the ground.  More sophisticated antiaircraft missile systems should be transferred to the Ukrainians, perhaps including the Russian system purchased by Turkey if Turkey would agree (which would additionally put them back in the good graces of NATO and the US).  Sadly, Putin understands only one thing - military strength and the ability and will to use it.  It has also been suggested that for the present, even if a formal no-fly zone is too dangerous, humanitarian air corridors should be created, perhaps UN rather than NATO backed.  There is risk for us involved, but it is important for Putin to know we are willing to take risks.  It shifts the burden back on him to recognize and assess his own risks.  The best way to avoid WW III is to remain firm, not to shy away from calculated confrontation.

Is there a way out?  It's hard to see one that is acceptable to both Russia and Ukraine.  What might be reasonable is for Ukraine to renounce any attempt to join NATO (but not its right to join the EU) while retaining the right to defensive military security, and granting some level of local autonomy to the eastern provinces.  Perhaps throw in some mutual security pacts between NATO and Russia to downgrade offensive military capability in border areas.  Biden has already offered transparency in military exercises in the region and offsite inspections of the US missile-defense launchers in Poland and Romania to verify that they could not fire offensive cruise missiles contrary to Putin's assertions.  I am dubious that this would satisfy Russia. Putin is too far over-committed.  This would be considered a loss by him.  Russia will have to suffer much more before he will come to the table.

This is not only about Ukraine.  The Putin doctrine may have more appeal and lasting power than communism.  It has its antecedents long before Marx.  This is a worldwide struggle against the coming of the new authoritarian one party state and the attack on the rule of law and liberal democracy. We are all involved, and the US must take the lead.