Roe v Wade Was Foundation for 'Other' Rights Now Placed on Chopping Block by the Supremes in Allegiance to Project 2025
Biden Administration Intervenes: SCOTUS Weighs in On Emergency Medical Care of Pregnant Women - as Republican Project 2025 Looms in Background, Putting Other Rights at Risk
With recent rulings by the US Supreme Court “majority” - it is hard to envision a more dystopian view of women and their reproductive rights, as represented by the “majority.” Alito with his dystopian flag issues, the “Justice” alleging his wife went rogue flying their American flag “upside down” and “against his will,” while he prevents other women - American women, from asserting their right to bodily autonomy and freedom of choice. Is he really to be believed? And Coney-Barrett, the only conservative woman on the Court, takes part as a “handmaid” in a religious “cult, - but nonetheless was nominated by Trump and confirmed by Congress to be Associate Justice on the Supreme Court. Not only is the embrace of cult members a first for this court - but it fits the nefarious “playbook” put forth by right-wing “Heritage Foundation” project 2025 . This is a playbook waiting in the wings, to be asserted in a Trump presidency, poised to dismantle the separation of church and state, dismantle federal agencies, control national allegiance through indoctrination in education, dismantle human rights, regulatory agencies, climate and environmental policies that don’t align with their plans - just like they do in Russia.
Right-Wing Strategies Prepared to Exert More Chaos
These right wing fascists begin by seeking to “assert” a self-righteous and moralistic view on the sanctity of unborn human life - yet their actions are antithetical to it. They do not want IVF, they do not want emergency abortions to save lives of dying pregnant women, they don’t want to protect the planet from devastating man-made disasters that regularly kill scores of people and create environmental and climate chaos. They also want to put all those who don’t tow their party-line-agenda: including putting nonconformists, climate activists and gay people in jail. So it is any wonder they do not embrace true “moralistic views” such as background checks or assault weapon bans to stop criminals and their weapons of war from finding their way into schools? Instead they embrace the fear-mongering that will keep everyone in line - just like Hitler did in Germany, and now seen in Russia and North Korea.
Way More Implications than Toppling Roe
It is more than clear, the overturning the 50 year-old precedent of Roe v Wade has more implications than what “anti-abortion activists - pro-lifers” would ever have contemplated. Toppling of Roe by the Dobbs decision in 2022, means so much more than just abortion rights, as Roe stood firmly upon the Fourteenth Amendment. A place where a plethora of liberties and rights imbued upon “all” people flow from Equal Protection to Due Process Clauses asserting and memorializing rights and liberties to be held by the people.
In the context of women’s rights and family planning, the Fourteenth Amendment has been interpreted by SCOTUS in decades past, to include self-determination - liberty and privacy: including the ability to use contraception between married heterosexual couples without state intervention. At the other end of the spectrum it “decriminalized” intimate relations among gay couples in the privacy of their homes. It should come as no surprise, that further challenges will be coming down the pike to be decided by the same SCOTUS court that sent Roe to the dustbin of history.
Foundational Principles Under Attack
As had been artfully articulately in the Dobbs dissent of Justices Breyer, Sotomayor, and Kagan - taking away a right - a woman’s right to “choose” - a right that has been in existence for half a century, repeatedly scrutinized, and applied by courts across the land, used as pillars for other cases where liberty and privacy rights are asserted, may now topple since its foundational principles have been stripped away. And this is not just about religion, or the sanctity of life - this is about setting precedent going forward, as well as destroying foundations of well-reasoned cases or “stare decisis” relied upon to make new law, firmly based upon the past.
The Right to Emergency Medical Care vs Project 2025
And now in lock-step with the “ultra right” project 2025, the US Supreme Court is reviewing cases that are were once foundationally buttressed by Roe. These current cases are Moyle v. United States and Idaho v. United States involve EMTALA (Emergency Medical Treatment and Labor Act, passed by Congress in 1986). This federal law was intended to ensure that all patients have access to emergency services without regard to their ability to pay for them. And in particular, EMTALA provides that when someone with an “emergency medical condition” comes to a hospital that participates in Medicare, the hospital must offer the treatment necessary to stabilize their condition.
Yet, after the Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization, overturning the constitutional right to an abortion, states have adopted myriad regulations, many of which conflict with this federal law. As a result, the Biden administration has recently been heard by the US Supreme Court. The government argues that EMTALA trumps an Idaho law that generally makes it a crime to provide an abortion except in a handful of circumstances - comprising a slippery slope for doctors and medical personnel in situations that conflict. Does stabilizing mean saving the life of the mother, which may include aborting a fetus, to the critical-care for victims of rape or incest?
Herein lies the problem: how close to death must a woman be? How close to organ failure losing her fertility must she be? And who will decide? Doctors who are afraid of being criminalized - if stabilizing means abortion?
EMTALA was intended to ensure that hospitals do not deny treatment to any patients who arrive at the emergency room. In cases in which there is ‘no other way to stabilize’ a pregnant woman and prevent her health from deteriorating, the government argued abortion can be the appropriate stabilizing care that hospitals must be ready to provide – even if a state such as Idaho can enforce its ban in virtually every other circumstance.
The Slippery Slope of Near Death Requirement in State’s Limiting Abortion
A woman should not be on “death’s door” before the procedure can take place, and of course, doctors and lawyers would argue the slippery slope of what constitutes being close to death, or whether or not the woman is in danger of organ failure - including that which is needed to bear future children. But emergencies generally do not allow time for debate. However, all this argument ignores the obvious: that when someone is in dire need of emergency medical care - especially a pregnant woman presenting distress at the Emergency Department of a Hospital - the situation is usually critical. Without immediate intervention to “stabilize” a critical patient - the lack of an immediate and appropriate response by medical personnel can prove deadly for both the pregnant woman and the fetus - let alone should she live, her ability to ever conceive again.
Without clarity of governing provisions, doctors and hospitals would be liable for wrongful death or potentially criminal homicide if they do not treat the woman and she dies because she wasn’t stabilized - or prosecuted under the state statute imposing criminality for conducting the abortion, which the doctors would need to argue was necessary to save her life.
State Rights vs Federal Law
In fact, this state statute criminalizing abortion under the above scenario, would appear to be antithetical to the Supremacy Clause of the Constitution Article VI, Clause 2, which states in part:
This Constitution, and the Laws of the United States … shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Going even further, the Privileges and Immunities Clause of Article IV, Section 2 of the Constitution states that:
"the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states."
This Privileges and Immunities clause protects fundamental rights of individual citizens and restrains state efforts to discriminate against out-of-state citizens as well.
This is helpful for those able to cross state borders to get the emergency care they need.
In fact, in Federalist No. 80, Hamilton expressed his belief in the clause's importance when he wrote that the Privileges and Immunities Clause (the version in the Constitution) is "the basis of the union."
It should be noted, some scholars believe the Privileges and Immunities Clause protects the traditional common law rights conferred by particular states to their citizens.
However, the majority opinion in Corfield v. Coryell, (1823) provides a different approach - stating that the Privileges and Immunities clause protected only certain "fundamental" rights: "Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole." But with the passage of the 14th Amendment ratified in 1868, this Amendment imbues a broader meaning than what is enumerated in Corfield, as to the scope of the Privileges and Immunities Clause.
Life and Liberty Interests are Enumerated “Fundamental Rights”
Most importantly, “life and liberty interests” are fundamental rights enumerated by the 14th Amendment, Section 1 which states:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.
Certainly if pregnant women are treated differently than men seeking emergency medical care, or non-pregnant women similarly situated in the state, this is certainly an equal protection argument. These women also have a life and liberty interest at stake: their bodily autonomy to make medical decisions affecting their life, and liberty should they choose to abort their pregnancy when it is offered as stabilizing care.
A Justice Who is All for Limiting Rights That do Not Affect Him
As many past Justices have stated, precedent should not fall at the whim of any majority - just because they got the chance to do so. This is not how good rulings are made - that is a way prejudice and bias seeps in. In fact, as Roe is relegated to the dustbin of history, “Justice” Clarence Thomas in allegiance to project 2025, has advanced argument putting numerous other rights on the chopping block from contraception to gay rights. But what about liberties that “he” specifically enjoys - such as interracial marriage or miscegenation which was previously outlawed by several states, but is now afforded him by the US Supreme Court ruling in Loving v. Virginia (1967), and the 14th Amendment. However, for the person who is advocating for dogma around “fetal personhood” and criminalization of those seeking and performing abortions - it would appear upon cursory review, that when it’s a personal right enjoyed by the “justice” himself, that needs to be exempted and protected….
Textualism and Originalism Not the Benchmark of 21st Century
If this Supreme Court is embracing the nations roots and “textualism” and “originalism” as the benchmark of what the founders envisioned for this nation, it would require the court to embody the “mindset” and “prejudices” of the drafters - which made no provisions for abortion, but slavery was legal and blacks were counted as 3/5 of a person, not entitled to vote - and certainly not entitled to have a place at the bench which Thomas enjoys… If that is originalism, then shouldn’t everything be on the table? The good with the bad? Yet is appears “Justice” Thomas, the only black-male sitting Justice on the Court in an interracial marriage, does not appear “interested” in revisiting the cases like Loving, overturning the criminality of what once attached to interracial marriages like his.
(Not surprisingly, the “Justice” never mentioned overturning the Loving case and that ruling, most likely because it affects him personally…)
However, Thomas did espouse interest in “exploring” the issue of “fetal personhood” and the issues of “access to contraceptives” - the latter issue adjudicated and decided by the SCOTUS in Griswold v Connecticut in 1965. From where I’m standing, it would appear the Supreme Court is deliberately “signaling” for cases to be brought to them so they can “limit” the “liberty interests” of the American people - rights of privacy, procreation, contraception, and even gay marriage.
Morality & Eugenics Cases Still on the ‘Books’ - Should Get a Second Look…
So what about Korematsu, the Japanese-American internment camp case decided in 1944 during WWII - that case was never specifically overruled - shouldn’t that case get revisited too? It has withstood the test of time for 78 years, far longer than the 50 years Roe has been on the books. Roe was decided in 1973, almost thirty years after the US Supreme Court ruling ripped all Japanese Americans away from their homes and livelihoods - disenfranchising them because those in power believed they could be traitors because they “looked” like the enemy. If we are “doing a re-do” for the sake of morality, why wasn’t this case precedent overruled?
And what about the cases where Americans were sterilized without their consent, including the infamous 1927 case of Buck v Bell, that was never overruled? A case where a young Virginia woman was raped and became pregnant, was institutionalized by those in the eugenics movement and forcibly sterilized by the state. A woman who had been a victim, who wasn’t believed, who could read and write, was good in school, but still deemed an “imbecile” by government actors and unworthy of continued procreation. Does anyone alive remember the egregious nature of cases like these at home or abroad? The jurists who heard these cases, including the notable US Supreme Court Justice, Oliver Wendall Holmes heard the latter, infamously ruling: “Three generations of imbeciles are enough.”
Not only did this case and his ruling help spawn the eugenics movement of America - it embraced and encouraged it. This “American Eugenics” movement was later adopted by Nazi’s leading up to and including World War II in the 1940’s. This state-sponsored philosophy of “government knows best” - picking and choosing those it deems “unworthy” of procreation, mostly immigrants, non-whites and the poor - tacitly vilified throughout history, by society and even the US Supreme Court. Many Americans are unaware, that forced sterilization of Mexican immigrants occurred as recently as the Trump administration.
Moral of the Story - Gov’t in Control of Life & Liberties - Bad Things Happen
The moral here is this: once a state or federal government has control over the reproductive rights of its citizens or those within its borders - bad things happen. Whether it’s dictating to women that they must carry a child to term, or preventing life as in forced sterilization - is inimical: Shouldn’t that determination really be up to the person - the woman, whose life is most affected? It would seem to be the most commonsense approach, but then again, the government believes it knows best, and plans to once again have the force and might of the law dictating procreation on its side - that is, if Trump is elected and project 2025 is enacted.
Despite all the ramifications of rolling back precedent - disturbing the sanctity of stare decisis (meaning precedent set of cases already decided), many ultra-conservative Americans are heralding the overturning of Roe v Wade as a victory. But what one deems as a victory today, is a disaster awaiting tomorrow - that is once it affects you, your family, or someone you love… The old adage reminds us, “Be careful what you wish for…” as “not everything is as it seems.”
As the US Supreme Court does an about-face turning back the clock on women to a time when women could not vote, married women could not hold title to property, and had no legal significance apart from their husbands (like the cult of Amy Comey Barrett who sees her husband as the person whom she gives deference) - these former realities are being resurrected by the right. As the new majority of the Court so easily casts aside precedent they believe will never affect them - or their loved ones, it just is a matter of time. The slippery slope of eroding rights and liberties will have no mercy once it is put in motion, everyone will at some point be subject to its peril.
Adversity Brings Understanding
But it is adversity that always brings understanding. When a loved ones is assaulted, impregnated against their will, or becomes sick or incapacitated by a pregnancy that can only end in death of the mother or the unborn child - or a child that will be born that will only know intractable suffering due to a hideous and unretractable birth defect or disease - How will those who advocated against the rights of the woman who “wanted choice,” feel about their ideology once they are forced to bear that same suffering imposed on them or their loved ones? There is always an unintended scenario that can strike anyone, anywhere, of any religious or political affiliation or economic strata - no matter where they live or who they are - no one is immune.
One must always be “cognizant” of the ramifications of what you wish for - as it may be someone else’s rights on the chopping-block today, but it may very well be yours tomorrow.
To learn more about EMTALA and it’s affect on American women, stay tuned for my upcoming podcast.
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