Nel's New Day

June 6, 2022

Draft for Overturning Roe – An Abuse on Religion, History

It’s June, and the U.S. Supreme Court has 33 cases yet to announce, including the possibility of overturning the almost 50-year-old Roe v. Wade permitting abortion for the first trimester and state regulation for the pregnant person’s health during the second and third trimesters. Samuel Alito’s rough draft for at least five conservative justices relies on mistaken religious, historical, scientific, and constitutional information.  

The cited religious freedom belongs only to Christian evangelicals who believe life begins at conception and fetuses are “babies.” The less religious conservative justices won’t believe constitutional “separation of church and state.” The First Amendment states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” In theory, that line should give the same rights to Protestants, Catholics, Jews, Muslims, Hindus, Sikhs, Bahais, Buddhists, atheists, and agnostics as to evangelicals. Christian evangelicals,  taking control of law in the U.S., believe everyone must follow strict fundamental Christianity, like Islam shariah law.

Rabbi Robert B. Barr and Rachel Smith of Congregation Beth Adam in Loveland (OH) wrote an op-ed for the Cincinnati Enquirer arguing that Justice Samuel Alito wants to impose a highly strict interpretation of Christianity on everyone in the United States.

“Justice Samuel Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization proposes an alarming erosion of the vital wall that separates church from state—between personally held religious beliefs and our shared government. If the U.S. Supreme Court adopts the draft opinion, the Court will be issuing an historic, precedent-breaking opinion based on the religious beliefs held by many of the current justices. Religion will be dictating public policy.”

Their position is that freedom of religion should not be determined by Supreme Court justices. The op-ed explains:

“The establishment clause of the First Amendment of the U.S. Constitution prohibits all levels of government from advancing or inhibiting religion. The Constitution prohibits the government from favoring one religious view over another or favoring religion over non-religion, and yet, that is exactly what this proposed opinion will do. This Court’s decision would adopt a narrow religious-based definition of when life begins and impose it on everyone in our nation. While some religions believe life begins at conception, others do not. Yet, the Court will impose one set of religious beliefs on everyone.”

According to Judaism, a fetus is “not a separate and independent life from the pregnant person.” The religion permits abortion if the pregnant person’s physical or psychological health is endangered. According to author Rabbi Danya Ruttenberg, scholar in residence at the National Council of Jewish Women, the Jewish Talmud declares the fetus as “mere water” for the first 40 days. Overturning Roe imposes one notion about the beginning life on everyone.

Reform Judaism permits abortion in case of rape or incest, when genetic testing determines the fetus has a disease causing death or severe disability, and the birth would be an impossible situation for the parents. Other reasons for abortion are for a single woman, age under 17, and risk to the woman’s health. This difficult decision is made by the pregnant woman with consultation with a trusted person such as a physician or rabbi.

Muslim scholars believe that a fetus is not a life until it’s “ensouled,” according to lawyer and commentator on Islamic law Abed Awad. Islamism allows abortions up to 120 days.

State lawmakers have flagrantly made it clear that they consider abortion a Chrisian issue in their drive to make the U.S. a “Christian” nation of far-right, fundamentalist views:

Louisiana: State Democratic Sen. Katrina Jackson said that “this is a God issue.” Last year, she said, “My goal in this office was to do the will of God… My concern is always, number one, that I not offend God.”

Alabama: GOP Gov. Kay Ivey said, “This legislation states as a powerful testament … that every life is a sacred gift from God.” GOP state Sen. Clyde Chambliss said, “I believe that if we terminate the life of an unborn child, we are putting ourselves in God’s place.”

Missouri: GOP State Rep. Holly Rehder gave her reason for forcing victims of rape and incest to remain pregnant: “We can do that with the love of God.”

Former Dictator Donald Trump (DDT) and VP Mike Pence echoed the “sacred gift from God” and “sanctity of every human life.”

Extremist anti-abortion laws forces extremist religious perspectives on state laws while all other religious perspectives are overridden. Contrary to the wishes of the Founding Fathers, these legislative laws will impose mandates on everyone, no matter what their religious beliefs are.

In addition to basing his decision on one decision of a minority, Alito demonstrated his weak grasp of history. He wrote:

“An unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.”

In early America, women could “restore their menses” until after “quickening,” the time when the pregnant person feels the fetus kicking and/or stirring which happens between the fourth and sixth month of pregnancy. Shared knowledge during this time, sometimes in published health manuals, gave directions for inducing miscarriages. The Married Lady’s Companion recommended quinine, black hellebore, or juniper; Indigenous women used black cohosh roots; and Black slaves had snakeroot, cotton root, and okra along with drugs sold by traveling salesmen in New England during the mid-1700s.

In writing about “deep history,” Alito used the words of a 13th-century judge who endorsed human slavery and a 17th-century judge who sentenced witches to executions and endorsed marital rape. [Right: Matthew Hale, Alito’s 17th-century legal authority.] 

The first anti-abortion laws in the U.S. passed by some states in the 1820s and 1830s banned drugs to induce miscarriages in women, “then quick with child.” Their purpose was to punish men who tried to escape marrying seduced women by giving them abortifacients and referred only to quickening. Alito ignored this legal history, including judicial rulings that cases could not be brought for abortion before quickening. He ignored this information in an amicus brief from two major professional associations of historians in the United States, representing the views of over 10,000 scholars and teachers. Instead he used the work of only one legal writer, rejected by most scholars because it “distorts the evidence.” 

Alito references laws from the 1860s and 1870s when pregnancies were criminalized because of a small group of self-interested white, male physicians anxious about their status as both doctors and as elite men who formed the American Medical Association. Women saw their treatment as “violent” and excessive, preferring midwives, homeopaths, and other “irregular” practitioners. Male doctors who massaged women’s vulvas to calm their “hysteria” also kept abortions legal to perform them for medical reasons.

The medical men were hostile to women’s activism and middle-class women preferring to restrict their families’ sizes and accused them of wanting “fashion” and politics over motherhood. Dr. Horatio Storer, the medical leader of the anti-abortion movement, wrote that “the true wife” did not seek “undue power in public life . . . [or] privileges not her own.” He and his AMA colleagues opposed women in the medical profession and pushed the racist fear of immigrants taking over the U.S. –the 150-year-old “replacement” theory—because white women didn’t want huge families. Instead, the U.S. would be taken over by “aliens,” Chinese, and Catholics. Alito claimed the words came from just “one prominent opponent,” but Storer was the underlying force driving criminalization of abortions as state and local medical societies used his essays, data, memorials, and letters to persuade lawmakers of the necessity to criminalize abortion at all states.

Prosecuting abortion providers and sometimes women seeking abortions was combined with shaming and punishing them through humiliation investigations. Abortions went underground where it wasn’t regulated, or women performed harmful practices on themselves. Chicago’s Cook County Hospital had an entire ward for septic abortion cases until 1973 when Roe made the procedure legal.

[Information thanks to Leslie J. Reagan, a professor of history and law at the University of Illinois, Urbana-Champaign and author of When Abortion Was a Crime and Dangerous Pregnancies.]

The term “opinion” when referring to Alito’s rough draft is accurate: his assertions about fetal development, abortion procedures, and international laws are disputed or are open to interpretation. Even pregnant women know he’s wrong. In the Atlantic, Chavi Karkowsky, a medical doctor in New York City and author of High Risk: Stories of Pregnancy, Birth, and the Unexpected, points out Alito’s separation from reality.

All Alito’s mistakes may not be his own: his rough draft shows an uncanny similarity to a brief by Texan Jonathan F. Mitchell for the state’s anti-abortion law allowing people to sue anyone supporting an abortion, even verbal discussions. Filed for Texas Right to Life, the brief was coauthored by Mitchell’s colleague Adam K. Mortara. The words and ideas are much alike—rejection of stare decisis, the language of the constitution disallowing the right to abortion, and the lack of reason for retaining the “contract” of Roe. Both believe that women won’t lose their autonomy without abortion because they can “control their reproductive lives.” As usual, they use the term “unborn human beings” instead of correct terminology.

The question is whether Alito will fix all these mistakes in his final draft.

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