You can still see them in “Amish Country”, only an hour’s drive from here in Pataskala. The Old Amish drive buggy’s and wagons using reins and a short handle with a length of leather attached at the end. What starts as a “branch” ends as a whip to “encourage” the horse to greater speed or strength. Farm animals aren’t “pets” to the Amish – they are all business.
Dodds
On June 24th, 2022, more than half of the nation’s citizens lost a right to control their own bodies. Mitch McConnell, Donald Trump and the Federalist Society got their “fever dream” wish when the US Supreme Court overruled Roe v Wade. In Dodds v Jackson Women’s Health, they returned the determination of women’s right to access abortion to state legislatures. The “black letter law” of the United States for forty-nine years – that women have the right to choose abortion up through the fourth month of pregnancy – was abruptly ended.
The Court stood behind a veneer of returning power to the states. But the six majority justices were well aware that over half of those states would immediately move to ban abortion. Five of the six were completely comfortable with the idea. Chief Justice Roberts looked for some compromise that would continue Court supervision of that “right”, but failed to win any takers from either side.
No Right to Privacy
The Majority attacked the “right to privacy” in the Constitution. They applied their “Original Intent” argument. Much like the Old Amish, they argue that if the founding fathers didn’t specifically say so, then there is no “extrapolation” allowed to add Constitutionally protected rights. The obvious hypocrisy of the original authors, who saw making enslaved people three-fifths of a person for the purpose of taxation and representation but failed to grant them three-fifths of a vote, didn’t seem to be a problem, for the founders, or the current Court Justices.
So, while the Old Amish stretched their religious beliefs to use steel or rubber tires on their buggies, the idea that women would have right to their own bodies doesn’t pass “Constitutional muster” to the Majority. They fell back on the Tenth Amendment:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
But Congress still has “the power” to enact national legislation. A Democratic majority of the House of Representatives and of the Senate already agree that the basis of the Roe decision should be made into national law. But the arcane filibuster rule of the Senate, requiring sixty votes to pass most legislation, has stopped that bill from reaching the President’s desk for signature into law.
Mid-Terms
Which, of course, makes the upcoming mid-term elections all the more important. If Democrats retain control of the House and gain two more Senators willing to change the filibuster rule, at least for this issue (and voting rights), then the doctrine of Roe can be written in national law. But elections have consequences. Should Republicans gain control of the House or Senate, then obviously that chance to “right the wrong” of Dodds won’t happen.
The Dodds decision seems to be electrifying the voting public. New voter registration for women is out-distancing men’s by several percent. In “Red – Red” Kansas, an August state constitutional amendment to allow for banning abortion drew as big an election turnout as the Presidential election of 2012. By a 59% to 41% margin, the amendment was rejected. Democrats are looking for that kind of turnout throughout the nation, hoping to turn an expected “Red Wave” into a Blue one.
Even if Republicans were to take both Houses of Congress, the President would maintain his veto power over legislation. And no “fever dream” sees this narrowly divided nation electing a two-thirds majority of either House to override a Biden veto. But that hasn’t stopped Republicans from imagining ways to create a national abortion ban.
Old Lindsey
Lindsey Graham, Senator from South Carolina, recognizes the drastic impact Dodds may have on voting turnout and November’s results. So he’s offered up an “olive branch”, a proposal for a new national law. His proposal:
“I think we should have a law at the federal level that would say, after 15 weeks, no abortion on demand except in cases of rape, incest or to save the life of the mother…”(WAPO).
You can see his thinking. Allow fifteen weeks of “choice”, then exceptions afterwards for rape and incest. That “compromise” would allow pro-choice Republicans like those in Kansas, to stay with their Party instead of crossing over to vote for “pro-choice” Democrats. It’s an “olive branch” of compromise, or so he says. His problem; so much of his own Party is committed to absolute abortion bans. It’s problematic that he could garner even his own Republican support.
And the “olive branch” is more of a “whip” in the end. It continues to recognize Dodd, allowing states to make more restrictive abortion laws on their own. In fact, what the Graham proposal would do is restrict those states that allow abortions, including Kansas, New York, and California, to his proposed Congressional standard. It would leave the others with almost total bans alone. And it tears down the veneer of “Tenth Amendment”, and shows the real Republican view of women’s rights. Lindsey Graham, Justice Samuel Alito and the rest want to be the “whip hand”, holding the reins and driving the country back into the last century, stroke by stroke.
