The Supreme Court Will Not Save Us
Let’s save ourselves: A call to make that bright light at the end of a very long tunnel, even if it doesn’t exist yet
I was on a flight when the news about Anthony Kennedy retiring hit the Twitterverse. The reaction was in full throat online by the time I waded in and it was INTENSE. Normally, such a momentous news item would have driven me deep into the online world to soak in all of the available takes, the better to process my own. But not this time. Maybe it was all that time on the airplane, very specifically not online, but by the time I hit the baggage carousel, I felt very detached from the ongoing drama.
That’s not because I didn’t grok the consequences of Kennedy’s retirement in short order, quite the opposite. I mentally processed the end of Roe as the law of the land very quickly, possibly because I worked on a show about the precarious nature of that court decision which prepared me for this very moment. I vividly recall that time a dude started clapping at the mention of Hillary’s loss at the end of a preview— the whole room went ice ice cold and focused right on that dude and his unexpected enthusiasm for a viewpoint the playwright, director, designers, and actors emphatically did not share. There are of course other court cases in the pipeline the crazed supposedly religious right have some stake in, but Roe v Wade looms over absolutely everything, as it has done for at least the last, what? 30 years? Longer? It feels like longer, that’s for sure. Abortion is a pretty reliable get out the vote tool. In 2012 fully 17% of voters with just one issue were focused on abortion. It’s a magnificent tool to get voters to compromise on candidates (the anti-abortion voters don’t see it that way, but then, they wouldn’t, would they?). Pro-prohibition activists are so lost in the intensity of their post Roe vision quests they even accepted Donald Jucking Trump as their candidate because they were assured they would get their judges out of it (not like Donald cares about Constitutional law, so this was and is a very safe bet). So much dirty politics has been done in the name of that pro-prohibition agenda (they have another name for themselves, but that name is so transparently false in the context of the rest of their agenda, I’m not going to bother to use it). It’s easy to get lost in anger that they finally seem to be getting their way despite their absolute nuking of norms to do it. It’s never a good day when Mitch McConnell, maybe the greatest arsonist in Senate history, feels like he’s winning.
Historically, the Supreme Court has been a slow moving conservative anchor holding the United States back from precipice of justice. Plessy v Ferguson and the Dred Scott decision are just as defining moments for that body as Brown v Board or Roe v Wade. I am struck in the case of McConnell’s literally unhinged from reality criticism of those who would attempt to block Donald’s next nominee, at how different he is from Chief Justice Warren. Brown v Board, an opinion authored by Warren, held that separate was inherently unequal, but the redress of that inequality was to proceed with “all deliberate speed.” It was daylight for segregationists in the North and the South of course, but it was also just enough sweetener to make the ruling go down. The fact is that the Supreme Court has no force at all if its decisions are wholly out of line with public opinion. Warren, like Marshall before him, knew that. The possibility of a Constitutional crisis resulting from Southern flouting of a Supreme Court ruling was very very real and Warren crafted an opinion with that crisis well in view. Chief Justice John Roberts has demonstrated caution in many of his opinions and it’s possible he will do the same in future, but many of the firebrands who will be nominated and the whipped up pro-prohibitionists who are already howling for the end of Roe v Wade will make it difficult to resist the grand gesture of simply overturning Roe. And it may well be their undoing.
Not too long ago, Ireland voted to repeal the most restrictive law on abortion in the free world. The 8th Amendment was repealed not with a squeaker, but with a whopping 66% of the vote, a landslide by any measure. When you poll Americans on reproductive justice and Planned Parenthood there are clear majorities in support of both. Quinnipiac showed a full 70% of Americans in favor of Roe v Wade. A recent poll commissioned by Fox News found 58% of folks in favor of Planned Parenthood. You can always cherry pick individual polls and stuff, but the trends have been there for awhile. Abortion is polarizing and lots of people don’t like it, but many of them actually do support the status quo of Roe v Wade (even though the Casey decision is currently, more accurately, the law of the land at the moment for you Justice Kennedy fans out there, few though you are).
It took me awhile to recognize the feeling I had when I realized that Roe v Wade was going to be overturned, possibly within the year. I was shocked when I recognized it because it was not what I was expecting: it was freedom. The religious right got their votes co-opted because they were so laser focused on one goal: getting enough justices on the Supreme Court to overturn Roe v Wade. I have never once seen anyone articulate what will happen after that. I think in their minds, the United States will be a paradise where abortion is finally definitively illegal, just like Thanos snapping his fingers. “There are only two tragedies in life: one is not getting what one wants, and the other is getting it.” Oscar Wilde’s epigram is useful for understanding plot and story and the present moment. Some of the greatest tragedies ever written are about people with a singular idea attaining that idea and having absolutely no idea what comes after it, which leads to their ultimate demise. Shakespeare was quite good at this. There’s a sequel coming where Thanos doesn’t get what he wants. And there are lots and lots and lots of pro-choice folk who know what to do when the constraints placed on them by relying solely on a court ruling are finally cast off.
Unlike many countries where abortion is legal, the United States does not have a mechanism for the body politic to express itself on the subject. Much of the vitriol of the culture wars is a direct result of having to express themselves indirectly, focused on changing Supreme Court justices, a long arduous process that has nothing to do with changing hearts and minds. One of the many reasons I drifted away from my evangelical roots is that I noticed more and more how toxic the politics they supported were and how divorced from the Gospel their politics had become. The world “evangelism” has Greek roots and it means “to spread the Good News.” One thing I noticed from these discussions was that for all the use of the word “evangelical,” it had been a long time since most folk had bothered to win hearts and minds. Everything was about radicalization, intensifying feelings that already existed. No attempt was made to reach out to people whose minds could be changed. If you weren’t on their side, then you were evil and lost to the powers of hell itself. And that leaves them a much smaller group than they imagine, even among Republicans. Their power well outstrips their size and that will continue to work for them, in their heads, if they work through the courts, oppressing others even as they felt themselves oppressed (not that this is how it is, just how they have been taught to perceive it). America is drifting away from the purer forms of democracy, which is why this mid-term is so important, but it is not yet an authoritarian country where the exercise of democracy is just for show. In the real world, Alexandria Ocasio-Cortez wins primaries and socialists make it to state and national legislatures, where clear majorities exist that are flat out antithetical to the anti-choice crowd. In the real world, the future of reproductive justice will be clearer and on more solid footing than it has ever been when folk can rely on democratic processes to affirm it and not indirect processes like the courts. Roe v Wade was a necessary stopgap, a ruling that created space for us to reach this moment, but its utility is past. The future will go to those who dream it better and sooner. Pro-prohibitionists have no dreams that I can tell beyond the end of Roe. The other side of Roe is a desperate desire for justice and free will, a desire that is supported by definitive majorities. The future does not necessarily belong to abortion prohibition.
Now, I am not one to be sanguine about this future. I will and have castigated fools for thinking this moment is not as dire as it appears (see above foolish tweet). The future is not written and it cannot be taken for granted. But, but, but. Pro-prohibitionists have no monopoly on passion and as it happens, they don’t even run the corner on sympathy, empathy, love or even truth. They certainly don’t have a monopoly on legislative expertise. This future that I glimpsed with such startling clarity while waiting for my luggage at the airport will only come from pitched battle and there will be lots of losses between now and this ultimate victory. And yet . . . There is life after Roe and it might even be a better one than we ever dared to dream. We should stop placing our faith in a body destined to disappoint us and embrace a future where we must take our fate into our own hands. As an intense lady with a fixation about the future once said, there is “no fate, but what we make.” In a world without Roe, we are more free to make that fate than ever before. So let’s. Fucking. Make. It.
