How Did We Get Here?
And Where Will James Bopp and Clarence Thomas Take Us Next?
I listened to two interesting podcasts this week that dealt with Roe v. Wade in particular and the Supreme Court in general.
The first was an episode on July 7 from the New York Times podcast The Daily titled “An Anti-Abortion Campaigner on the Movement’s Historic Win” in which Sabrina Tavernise interviewed James Bopp. He was the lawyer who brought the famous Citizens United case to the Supreme Court, which made it easier for wealthy donors and corporations to donate to political campaigns and which ushered in the era of Super PACs, but his real focus throughout his long career—he’s in his 70s—has been to overturn Roe v. Wade.
As a young lawyer, he joined forces with the National Right to Life Committee, which had formed in 1968 and is now the “nation's oldest and largest pro-life organization,” according to the organization’s website. Bopp made it his life’s work to craft legislation to challenge Roe. Over the years, the Supreme Court took on several of his cases, and little by little, he and other anti-abortion lawyers and lawmakers were able to whittle away at abortion rights, finding any loophole that would weaken it. The laws he helped enact ran the gamut from requiring women or girls to get consent from their spouses or parents; moving abortion procedures from hospitals to special clinics; preventing federal money—like Medicaid—from funding procedures; making women endure waiting periods from 24 to 72 hours.
When people—including me—ask, "HOW DID WE GET HERE?” you realize while listening to Bopp that there was a very intentional, calculated, determined, organized, and relentless legal effort to overturn Roe v. Wade from the moment the decision was handed down in 1973. He explained:
Part of the strategy is the recognition that you’ve got to have the Court deal with this repeatedly. This is not a one-shot deal. You’ve got to keep presenting them cases, have them take up cases, because that gives them the opportunity to question, distinguish, undermine, or as you’ve already heard, change the right to abortion.
So it’s like at each stop, you get a rewrite of the right to abortion, which undermines it, inherently undermines it, because it demonstrates what so many people said when Roe v. Wade was handed down — it’s just not grounded in the Constitution, and it’s built on sand. Well, every time you get a decision, you have these shifting sands, and that undermines the precedent.
Every time the Supreme Court revisited a challenge to abortion rights, the sands shifted again, and then, finally, with the nomination of three conservative justices by President Trump—Gorsuch, Kavanaugh, and Barrett—the stars aligned. Bopp referred to the 6-3 Dobbs decision as the most “consequential decision of the Supreme Court in my lifetime.” He said:
One of the most radical doctrines ever accepted in the history of the world is the Judeo-Christian idea that every individual human life has inherent value and is sacred…. Roe v. Wade was an assault on that. It was a direct assault because it treated human lives, because of their location in the womb, as not having the same value and protection that all human lives have been entitled to. Hopefully, we are now taking a turn to be able to put that in the past.
That language, “Judeo-Christian” has been popping up everywhere lately. A relative of mine recently commented to me about the United States being a “Judeo-Christian nation,” and then had the audacity to suggest that Muslims might not be able to assimilate and live peacefully here because our cultures and religion are so different. Huh? Until that moment, I had never heard that relative use the phrase “Judeo-Christian.” Apparently it’s been a Fox News mantra for years—first from Bill O’Reilly and now Mark Levin:
We have to—we need to celebrate our culture. We need to celebrate Americanism, we need to celebrate the Judeo-Christian principles that went into the founding of this nation. And if you're not Jewish, you're not Christian, there’s no reason to take offense. You came here, a family member came here because of the nature of the country. You fled. You don't have to be Jewish or Christian but facts are facts. It was founded on a Judeo-Christian belief system which embraces Western civilization and the Renaissance, the Reformation, and all these things.
Facts are facts?
Back to Bopp. Because his work is not done here. In fact, he’s working harder than ever now that Roe has been overturned. But why? As Sabrina Tavernise pointed out, most of those red states have already passed abortion bans or restrictions, to which Bopp explained that the model legislation they’re writing is for any of the 50 states who now have the opportunity to pass substantial restrictions on abortion to “protect the unborn.” Maybe there are 30 states doing that right now, Bopp explained, but…
If things go well in the midterms, there’ll probably be 35. Because you could see, if things go well, Democrat governors that are standing in the way in Wisconsin, Michigan, Pennsylvania, North Carolina could very well be defeated. You just don’t know. But if that happens, you’d add them because they have overwhelming Republican legislatures.
To Bopp’s chagrin, there are sanctuary states and even cities within red states whose prosecutors are refusing to criminalize abortion, like in Indiana, where the Berrien County prosecutor is taking a stance that he will not enforce abortion laws. Bopp doesn’t hold back his frustration with these rogue prosecutors:
So you’ve got to do something else to get around these lawless, radical Democrat prosecutors that are taking their discretion up to a much higher level, where they’re now going to be the little king of their county and decide what laws are going to be applicable in their county. I mean, that’s the job of the legislature, not them.
The ultimate goal, according to Bopp?
An abortion-free America, except where justified by the life of the mother. And the law is a tool for that. And we just haven’t had that tool because of Roe v. Wade, until now. Well, now, we have that tool. So as far as the movement is concerned, we’re half done.
But don’t worry. Bopp assures us that “obviously, reaching our goal of abortion-free America except to save the life of the mother would only occur if there was consensus, not conflict.”
No conflict at all. We can rest easy. Nothing will be forced upon us.
I wonder if Bopp ever passed an eight-pound baby through a dilated vaginal opening after nine months of pregnancy, suffered a vaginal tear—which is very common—that required stitches that would take six weeks to heal and burned like hell every time he had to pee. If, for several days, maybe weeks, it was painful for him to even sit down. If he had a good supply of giant pads to absorb the bleeding that kept up for several days after the birth. If he took stool softeners so that he didn’t tear out his vaginal stitches while having a bowel movement. If he breastfed his baby every couple of hours or pumped if he was going to work. If he continued to take loving care of his other children while recuperating. If he found reliable and affordable childcare in case there was no maternity or paternity leave guaranteed with his job. If he was able to pay the hospital bill rendered after giving birth, likely at a cost of several thousands of dollars.
I had a friend who had a third-degree tear from her vagina to her anus that required dozens of stitches; the birth was so traumatic that she decided she would never have another child.
Bopp, you are just another man influencing edicts made by other men in positions of absolute power that solely affect women. This patriarchal hubris is sickening. These men simply have NO IDEA.
The second fraught yet fascinating audio piece I listened to in the last week was on Fresh Air. Terry Gross interviewed Adam Liptak—a reporter from the New York Times who has been covering the Supreme Court for 14 years. Here’s the Apple podcast link, and here it is on Spotify.
Liptak discussed the major cases the Supreme Court decided this term—which ran the gamut from environmental protection (the Court limited the EPA’s ability to regulate power plant emissions), gun control (the Court struck down a New York law limiting who could carry firearms in public), prayer during high school football games (the Court ruled that a public school football coach could openly pray after games on the fifty-yard line), and of course Dobbs (the Court overturned a 50-year precedent and returned the oversight of abortion regulations to the states, many of which immediately banned or severely restricted it).
I love Adam Liptak. He’s very measured and clear-thinking and well-spoken, even as he’s expressing his own personal shock; and Terry Gross—always calm and collected (unless she’s interviewing Gene Simmons from KISS)—nearly came unglued at certain points during her conversation with Liptak. I always told my argument students at Cal Poly that the Supreme Court was more important than the presidency in shaping the course of the country. You probably already have a sense of how the Supreme Court’s recent decisions will impact life in the United States, but Liptak provides a succinct and worrisome synopsis.
But here’s a little overview. First, it’s important to know that constitutional logic used to argue Roe in 1973 was found in the Fourteenth Amendment:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
That very special amendment has been used to argue for many rights not found in the original Constitution. But if the Fourteenth Amendment no longer protects a woman’s right to privacy and bodily autonomy, some people fear that same logic may be applied to overturn other civil rights cases, such Obergefell, which made gay marriage legal. Terry Gross and Adam Liptak touch on that with a very interesting exchange:
GROSS: Justice Alito, in his majority opinion, wrote that nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion. What's the logic behind limiting such a profound precedent to just abortion?
LIPTAK: You know, that's like a sentence. That's an assertion that cuts against the logic of the opinion. The logic of the opinion would suggest that the right to same-sex marriage is at risk, the right not to have criminal laws against gay intimacy at risk. The right to contraception could be at risk. The right to interracial marriage could be at risk. And it's very nice that Justice Alito will write his sentences, don't worry. Nothing to see here. But as the dissenters point out in the abortion case, the law is about logic, not about assertions.
And in a concurrence, Justice Clarence Thomas, part of the majority, said, let's go. It's time for us to reconsider and overrule the same-sex marriage case, the gay sex case, and the contraception case. So I wouldn't feel a lot of comfort from the bland assurance by Justice Alito, who has written very bitterly about Obergefell, the same-sex marriage case, that the court is, as a matter of principle, going to stop here. Now, they may not have the votes, and I don't know that they have the votes of the chief justice and Justice Kavanaugh. They may not get to five on these issues. But, you know, it's very nice to write a sentence. But future courts are going to look at the logic of the decision not to promise that it stops here.
GROSS: Yeah. And Clarence Thomas, in the concurrence that you referred to, called the decision on marriage equality, sexual relations that aren't heterosexual relations and contraception, he called those decisions demonstrably erroneous decisions. How are they demonstrably erroneous in Thomas' point of view?
LIPTAK: In precisely the same way he thinks a right to abortion is not contained in the Constitution or inferable from the 14th Amendment and what the drafters and ratifiers of the 14th Amendment meant in 1868. He says, just as they didn't think about a right to abortion, they didn't think about a right to same-sex marriage. And they didn't, right? They didn't think about a right to be free from being prosecuted for gay intimacy. They didn't think about a right to contraception. You know, credit where credit is due - at least Clarence Thomas is transparent and frank about where the logic of the abortion decision leads.
I just want to interject something here. My mother’s partner is a woman named Claire. Here they are:
Claire just turned 75 this month and my mother turns 76 on Monday, July 18. Claire was born in California, but her family is from Louisiana. For a few years, my mom and Claire moved back to Minden, near Shreveport, to live in the hundred-year-old farmhouse that belonged to Claire’s mother. I visited them when they were living there and got to meet some of Claire’s family members. (Now Claire and my mom are back in Los Angeles.) I’ve talked to Claire quite a bit over the years about her family history, and lately, she’s been urging me to write about it. Here’s a hard-to-hear piece of the story.
Claire’s mother was born in Louisiana in the 1920s and had 11 siblings. At 12-years old, she was raped and became pregnant. Forced to go live with the rapist’s family, she gave birth to his daughter at 13. After she bore him two more children, he divorced her and took sole custody of the children, basically making her a de facto handmaid. Claire herself did not come into the world until years later in 1947 when her mother, then in her 20s, moved to California and met Claire’s father.
My mom and Claire have been together for more than 30 years. They take each other to the doctor, go to Costco, have a favorite booth at their local Olive Garden. They have helped raise grandchildren and survived many difficult times. Claire and I text at least once a week—she sends blessings and love to my family and updates on my mom. Oftentimes she sends me something like this:
So I’m thinking about Claire, thinking about my mother, thinking about gay marriage and intimacy, thinking about abortion bans, including those with no exception for incest or rape. State abortion laws are in flux and changing so incredibly rapidly, it’s hard to keep track. Last week, a Louisiana judge upheld a trigger law that went into effect that bans abortion from conception with no exception for rape or incest. In the hour during which I was first drafting this, the Louisiana abortion ban was blocked and abortion was made legal again in the state—at least temporarily. This ping-ponging is insanity. Imagine being a pregnant woman or a health care provider who literally needs to be looking at real time updates in regard to the shifting legal sands on which you stand prior to making crucial healthcare decisions. Yes, insanity. You can find current, reliable updates on each state here.
I have a question for Clarence Thomas regarding Loving v. Virginia, the 1967 Supreme Court case in which the justices ruled that laws against interracial marriage violated the Equal Protection and Due Process clauses of the Fourteenth Amendment. Justice Thomas, will you make an exception for that ruling as you seek to dismantle more precedents? I mean, by your logic, your own marriage may no longer be constitutionally protected either. That’s one hell of a way to get out of a marriage.
Thanks for reading.