A Proclivity to Reverse

Red states are tripping all over each other with “right to life,” anti-abortion statutes. From the “not after a detectable heartbeat” statutes passed in Georgia and Ohio (yes, it is now a red state) to the virtually total ban (not even in cases of rape or incest!) in Alabama, then Missouri (after the 8^th week) –  as Governor Mike Parson has pledged to sign the bill – and soon Louisiana (after 6 weeks), with more such bills pending in various other states. While many legal scholars suggest that an outright Supreme Court reversal of the 1973 Roe vs Wade pro-choice ruling is not likely – a hot potato that dramatically alters a practice embedded in America for close to half a century – there is growing sense that the Robert’s Supreme Court is likely to sustain efforts to chip away the breadth of that decision based simply on the new right-wing configuration of the court. 

With Neil Gorsuch and Brett Kavanaugh tilting the court to a new conservative majority, there’s a bigger hope among red states with strong evangelical and Roman Catholic leanings: that the entirety of Roe vs Wade will be reversed. States with the heartbeat law are hoping for complete reversal but would be content with this “almost the same thing” alternative. After all, a very large number of women are not aware that they are pregnant at six weeks, when the tiny embryo first has a vaguely traceable heartbeat. The transition from embryo to fetus, where the ability to survive outside the womb begins, generally occurs somewhere between nine and eleven weeks from fertilization. 

Those who want a clear and total reversal of Roe vs Wade think the more draconian Alabama law (and the Missouri version of the same ilk) has to be the case taken to the U.S. Supreme Court, but even some of the staunchest “right to life” proponents think that’s a bad idea. “‘I think Alabama has gone too far,’ Robertson said Wednesday [5/15] on his long-running TV program, ‘The 700 Club,’ referring to the hefty prison sentence for anyone who performs an abortion -- 99 years or life behind bars… ‘It’s an extreme law, and they want to challenge Roe vs. Wade, but my humble view is that this is not the case we want to bring to the Supreme Court because I think this one will lose,’ he said.” Fox News, May 16^th. So why even try?

The case that is giving hope to right-wing legislatures was decided on May 13^th, reversing 35-year precedent by the new conservative majority. Deadlocked in a 4-4 stalemate in 2016, the post-Kavanaugh court in Franchise Tax Board of California vs Hyatt, revisited and addressed the presumed settled case-law that a private party, resident in one state, proving sufficient nexus to justify his home state choice, could in fact sue a governmental body in another state. If the Court could reverse this well-established case, reasoned the conservative legislatures, the Court could just as easily overturn Roe vs Wade. 

The May 17^th Journal of the American Bar Association reviewed the majority decision written by Associate Justice Clarence Thomas. “The court ruled against microchip inventor Gilbert Hyatt, who had sued the Franchise Tax Board of California in a Nevada court. Hyatt had sued for alleged torts by tax personnel who questioned the timing of his move to Nevada, where there is no state income tax. Hyatt had alleged that investigators harassed him by peering through his windows and examining his trash.

“Hyatt had argued that no specific provision in the Constitution explicitly grants states sovereign immunity in another state’s courts. Thomas termed the argument ‘ahistorical literalism’ that ignores constitutional structure and historical understanding….

“Justice Clarence Thomas wrote the majority opinion overruling the 1979 Supreme Court decision Nevada v. Hall. ‘Stare decisis [the matter is precedentially determined] does not compel continued adherence to this erroneous precedent,’ Thomas wrote… ‘Nevada v. Hall is contrary to our constitutional design and the understanding of sovereign immunity shared by the states that ratified the Constitution,’ Thomas said…

“A good argument that the high court got the precedent wrong is by itself not reason enough to scrap settled precedent, [Dissenting Associate Justice Stephen] Breyer argued. When a decision is not obviously wrong, a court is obviously wrong to overrule it, he wrote.

“‘To overrule a sound decision like Hall is to encourage litigants to seek to overrule other cases; it is to make it more difficult for lawyers to refrain from challenging settled law; and it is to cause the public to become increasingly uncertain about which cases the court will overrule and which cases are here to stay,’ Breyer wrote.”

To anti-abortion conservatives, it was not just that the Supreme Court seemed willing to reverse a seemingly solid precedent, it was that the new conservative majority of the court made that happen. Whatever the ultimate ruling by this Court on just about anything, it comes down to a willingness from the Chief Justice John Roberts to enable this polarizing politicization of the Court or to attempt to restore a semblance of judicial neutrality and dignity that should be the overriding mandate of the highest court in the land. It cannot be simply a tool of the Republican Party and Trump’s base to force an agenda that they cannot get through Congress. It’s a bad precedent… because the court could someday tilt the other way, just as well.

              I’m Peter Dekom, and unless we begin cherishing our democracy… we won’t have a democracy anymore.