Alito’s Abortion Decision: Exquisitely Written Balderdash, Spiked with Sadism and Marinated in Stupidity
A Collection of Rough and Tumble Legal Arguments to Give Abortion opponents a Killer Kick in the Ass
By
David Gottfried
Justice Alito apparently had a lot of fun writing a sardonic decision mocking the reasoning of Roe v. Wade and Casey v Planned Parenthood, which found that women had a right to abort their pregnancies. Although Roe v Wade and Casey v. Planned Parenthood may not have had the superficial sophistication of Alito’s opinion, at least those decisions were honest.
Alito’s legal rant was laughingly illogical, beset with an almost fetishistic adoration of the past and exasperatingly inconsistent as it kept saying two antithetical things: To keep moderates happy, the decision said on more than one occasion that its overruling of Roe v Wade and Casey v Planned Parenthood would not threaten other substantive due process rights, such as the right to homosexual sex and the right to gay marriage. However, to keep conservatives salivating for a further whittling away of human and sexual freedom, it amplified legal principles which are digging the grave for gay rights.
Here’s my take on the salient defects in his decision:
1. ALITO’S DECISION EMPLOYED THE LOGIC OF THE NAZI PROPAGANDA FILM “LE JUIF SUSS.”
The Nazis loved showing “Le Juif Suss” to their French subjects. In the film, a Jewish guy, in Stuttgart, has sex with a gentile girl. The wise old Judges have to decide what to do. One of the old farts suggests that they look for some “good, old law.” He finds a dusty old tome, framed in cobwebs, and written with the spikiest Gothic script. The old law commands that if an accursed and lecherous Jew lays a finger on a blonde and heavenly maiden, the Jew must be publicly hanged without further ado. At the end of the movie the Jew is hung, and a town leader announces that all Jews must get out of Wurtemberg within 72 hours.
Like a good Nazi, Alito also swoons for cruel legal codes that are ancient and gothic. Although Courts are obliged to follow precedent, Alito has concocted the perverse notion that that which is antiquated is necessarily blessed. Many, many pages of his decision simply recount judicial opinions, going back to the 13th century, which condemn abortion. Alito has gone beyond mere stare decisis and seems intent on making ancient Asian ancestor worship the law of the land.
2. THE CONSTITUTION DOES NOT STATE THAT YOU HAVE THE RIGHT TO WEAR A BLUE SHIRT. PER THE REASONING OF MR. ALITO, NEW YORK CAN PASS A LAW FORBIDDING THE WEARING OF BLUE SHIRTS, AND I CAN BE ARRESTED FOR WEARING A BLUE SHIRT.
The constitution is a relatively short document. Not more than a few pages long, depending upon the font size. A short document like the constitution must therefore be read expansively. Something much, much smaller than a short story, most of which is devoted to discussing the mechanics and operation of the three branches of government, cannot possibly enumerate all of the rights that Americans can claim as their own. It cannot discuss thoroughly, or even very superficially, everything that may touch upon family life, engineering, medicine, fashion, business, labor etc.
Therefore, the constitution does not state that you have the right to move about in cars or on bicycles. However, most of you think you have the right to use a car, a bicycle and even a scooter too.
(Indeed, the auto combustion engine did not exist when the US constitution was written. Of course, perhaps Alito thinks we should live like some Islamic militants I read about in the New Yorker: About 15 years ago, in Iraq, a gang of Muslims killed ice vendors and people who worked in refrigeration as refrigeration did not exist at the time of the prophet Muhammed. Somebody should tell those goons that IEDs, or improvised explosive devices, also did not exist in the good ole days when Muhammed waged holy wars and that they ought to ban bombs as well.)
The constitution does not give you the right to consult board certified doctors or witch doctors from the African bush. The constitution does not give you the right to wear shorts. Do we think that the state Vermont can outlaw donning shorts because the weather is often cold there and shorts may lead to colds and flu?
Although conservatives decry liberals for allegedly hoisting a “Nanny state” upon us which nags us with too many dos and don’ts, if we adopt Alito’s crabbed and cramped conception of liberty, which says that a right does not exist if it is not explicitly mentioned in the Constitution, we will suffer a Nanny State that will make the female lead in the sit com, “The Nanny,” appear easygoing and genteel.
3. THE FRAMERS DID NOT INTEND THAT THE CONSTITUTON WOULD SERVE AS A REPOSITORY OF OUR RIGHTS OR A DEFINITIVE LISTING OF OUR RIGHTS. ERGO, THE CONSTITUTION’S FAILURE TO MENTION ABORTION IS INCONSEQUENTIAL.
I wonder how many political talking heads have read the constitution. At least ninety percent of it consists of laws explaining how Congress, the Courts and the executive branch should function.
Sure, there is such a thing as the bill of rights which consists of eight amendments to the constitution. The bill of rights was only adopted as a sweetener to urge each of the thirteen colonies to adopt the constitution. It consisted for the most part of legal principles which distinguished our view of liberty from the English view of liberty. As such it was not meant to serve as a comprehensive iteration of all of our rights. Rather, it was largely a compendium of rights that were very newsworthy because they were headline material in our recent war for independence.
Finally, the 9th Amendment, I always thought, gave conservatives a killer kick in the ass. It says that the list of rights in this constitution is not a complete list of all rights belonging to the American people.
The Moral of the Story: The next time a conservative tells you that the right to gay sex or abortion is not mentioned in the constitution, you tell him about the 9th amendment. And please SHOUT. They have been shouting at us since Reagan was elected President. It’s time to shout back with legal arguments that doom their position.
4. SINCE ALITO BELIEVES THAT ABORTION MUST BE OUTLAWED SINCE DETERMINING WHAT CONSTITUTES AN “UNDUE BURDEN” ON A WOMAN IS VAGUE AND IMPRECISE, WE SHOULD FREE EVERYONE ROTTING IN AMERICA’S JAILS BECAUSE JUDGES HAVEN’T MADE UP THEIR MINDS AS TO WHAT PROOF BEYOND A REASONABLE DOUBT MEANS
To be convicted of a crime, the prosecution must prove its case “beyond a reasonable doubt.” What does this mean ? Once federal judges were polled to determine how guilty one had to be to be guilty beyond a reasonable doubt. Some Judges said that there had to be 75 percent chance that the Defendant was guilty. Other judges said that there had to be a 95 percent chance of guilt.
Accordingly, courts haven’t the foggiest idea as to what proof beyond a reasonable doubt is.
Justice Alito thinks that abortion should be criminalized because we really can’t measure or assess what an undue burden on a woman is.
If we accept Alito’s bullshit, then perhaps we should say that Judges and juries which convicted people when there only was a seventy-five percent chance of guilt employed a standard that was too quick to find guilt since a 25 percent chance of innocence was pretty damn substantial. So perhaps Mr. Alito should agree that we must review the records of millions of criminal defendants and admit that in far too many cases we were locking up people on the basis of shoddy, shifting, and wholly unscientific linguistic crap shoots. The law is all about words. Numbers are precise. Words can be given a million and one definitions. Words are the medium through which lawyers speak with a forked tongue.
In any event, Alito cannot fault pro-choice decisions on the basis of their malleable language. The whole of American jurisprudence is composed of slippery, malleable and often downright mendacious language.
5. ALITO’S DISCUSSION REGARDNG “THE INTENT OF THE FRAMERS” HAD ALL THE BIG WORDS OF WILLIAM BUCKLEY AND ALL THE TINY IDEAS OF ARCHIE BUNKER.
Alito’s argument, in large measure, comes down to this: When the constitution was written, and in 1868 when the 14th amendment was ratified, most of the people who voted for and ratified those documents did not believe that women had the right to abortion. Therefore, the word liberty, as used in these documents, cannot include liberty to have an abortion.
This is constitutional interpretation simplified for Sesame Street. America, it’s time to grow up. It’s time to learn some big boy ideas about the “intent of the framers.”
A) How can we be so certain that the framers of the constitution and the 14th amendment wanted following generations of Americans to be shackled by their prejudices and judgments.
We often state that Americans want their children to be better than they are. Is it really so outlandish to suspect that the drafters of the constitution, or of the 14th amendment, wanted their progeny to be free to make and build a newer world and to define liberty more generously ?
B) We often believe that the framers of the constitution were brilliant in devising the structures of government. For example, many political scientists cheer our system of checks and balances in which the three branches of government, Congress, the courts and the Executive branch, keep the other branches of government from getting out of line. Therefore, maybe their insights and intent on political questions are valuable. Perhaps we should endeavor to adhere to their ideas regarding political science. (For reasons that I don’t have time to discuss here, I can also tell you that their ideas re political science were listless and dumb.)
However, perhaps we should realize that we owe no allegiance to any of their extra-political ideas.
For example, were the Fathers of our country really so bright about sexuality? Thomas Jefferson, who we frequently revere, said that a man who committed sodomy should be castrated. I have known many homophobic people, but I never met anyone whose mind entertained such obscenely, draconian punishments for sodomy. Ergo, perhaps we should not kowtow to the founders of our nation insofar as sexuality is concerned.
Likewise, were the founders really very brilliant in terms of their scientific judgments ? Thomas Jefferson held that black people smelled more than white people because he subscribed to the delusional idea that some urine is excreted from black people through their sweat pores. (Of course, this shows that he was as dumb as a dodo regarding the renal system.)
Also, were the founders really hot stuff when they treated disease ? If one was ill, a creepy, crawling animal called a leech was applied to the sick person’s foot or hand. The animal would then suck blood from our patient. In this way, the “poisons” that were polluting the patient’s blood would be expunged. Apparently, it never occurred to our brilliant founding fathers that i) sometimes disease was not caused by poisons in the body, ii) when one bleeds, one can also loose plenty of useful things, like protein, white blood cells to fight infection and red blood cells to carry oxygen to our cells and iii) how do we know that the nasty substance in the patient’s body will come out in the blood. Perhaps the poison will be thoroughly expunged if the patient is bled dry of all of his blood, but by then the patient will be dead.
This proves that the founders were pretty cruel on sexuality as they castrated homosexuals and pretty dumb about medicine, as they believed in leeches. Abortion is seated at the confluence of medicine and sexuality. To bow down to the reasoning of leeching-treating doctors of castration simply because they were our ancestors shows a reverence for ancient tradition that would have made the Shinto warriors of Japan want to be like us.
Also, in the days of the framers, penury was common. This was a legal institution, and a rotten way for a poor person to live, in which a creditor could make his debtor his all-purpose servant, stooge and suffering peon until the debt was wiped clean. Example: If Farmer Joe had not paid off Mr. Scrooge Sadist’s loan of ten dollars, Mr. Scrooge Sadist could scoop up Farmer Joe and make him clean his out house and live with the rats in the barn for the next five years. Do we really want to bow down to the economic “wisdom” of the framers who essentially just wanted to prop up the rich. Charles Beard, for example, said that the American revolution was a revolution, for the most part, for capitalists who were rising up and beginning to supplant the old money and status of the nobility. After all, in the early years of our nation, only people who owned property were allowed to vote.
6. TAKING ALITO’S REVERENCE FOR TRADITION TO ITS LOGICAL CONCLUSION:
Alito believes that something may be a constitutionally protected right if it is rooted in our traditions.
By Alito’s reasoning, slavery should be allowed because the right to own slaves was rooted in our tradition. By Alito’s reasoning, the Wagner Act of 1935, which lets workers unionize, is unconstitutional because in feudal times lords were allowed to beat their servants to death for smirking while serving crumpets and tea. Since Alito and Clarence Thomas and company are in love with everything ancient and biblical and harsh, perhaps they want to bring back the Biblical injunction, in Exodus, to stone disobedient children.
Speaking of Exodus: Many dour and dogmatic conservatives are enthrall to the stern and forbidding morality of the Old Testament. It shows you just how little they know about Judaism. Although the Old Testament is chock full of brutal prohibitions and prescriptions, it does not really govern Judaism. Indeed, most Jewish scholars don’t study the Bible that much. Instead, they study Talmud, or the imaginative legal interpretations which softened and humanized the Old Testament. For example, although the Old Testament has all the hellfire and brimstone of bible-belting Alabamians beating a homosexual to death, the Talmud tones down the wrath and gives us some “Rachmones,” or compassion, pity and mercy. Although Old Testament loving Baptists might jump at the opportunity to lynch anyone with the merest suspicion of sin, the Sanhedrin ruled, within a few decades after the death of Jesus, that one could not be executed for murder without the testimony of two (it may have been three; I don’t remember) eyewitnesses. The Talmud moderated the Old Testament for the Jews just as Jesus tamed the Old Testament for Christians.
In any event, since Alito is so in love with that which is old and nauseating, and since he thinks he’s as holy as a Pope in Rome, perhaps he should do what nuns and priests did in the Middle Ages and sleep in his coffin. And while he sleeps in his coffin, let’s nail it shut and throw it in the Potomac River. (I am just joking about nailing his coffin shut. I don’t want this post to be suppressed on the grounds that I am advocating violence.)
7. ALITO HAD ONE MESSAGE FOR MODERATES AND A VERY DIFFERENT MESSAGE FOR CONSERVATIVES
On more than one occasion, he says that his decision, overruling Roe and Planned Parenthood v Casey, will not imperil decisions which declared sodomy statutes unconstitutional (Until very recently, many states had laws which could result in the imprisonment of men for private, consensual, anal-phallic intercourse) and legalized gay marriage.
He claimed that Roe and Planned Parenthood are in a different league because they concern the fate of potential human life.
However, at the same time he savagely rejects a permissive tendency to prematurely recognize rights. He says that a right does not exist simply because some good-hearted liberals think it would be salubrious to bestow such a right. He could therefore overrule decisions, securing gay rights, by denouncing them as manifestations of a lax and lenient liberalism that was making the nation go soft.
Also, he noted that the right to privacy was not explicitly articulated in the constitution and sarcastically hinted that he might want to overrule the notion that there is such a right to privacy.
The Court found that the constitution implicitly gave us a right to privacy when it ruled, in 1965, in Griswald v. Connecticut, that Connecticut could not ban the sale of contraceptives to married couples because such a ban violated the right to privacy. Alito said that it wasn’t clear what this right was derived from, but Justice Goldberg (Appointed by President Kennedy) was very clear: He explained how and why it resided in the “penumbras of the 1st, 4th and 9th amendments to the constitution.”
The right to privacy which served as the basis for Griswald (the right of Married couples to buy contraceptives) became the basis for Roe v Wade and was the progenitor of cases which granted gay rights. Although many advocates of liberalized laws regarding sexuality now often put their faith in the substantive due process afforded by the 14th amendment, the right to privacy is still a cardinal and indomitable bulwark of any legal edifice which protects sexual freedom. If the Court decides that the right to privacy is not in fact granted by the Constitution, it may lock America in a gigantic chastity belt. And let’s not forget: Alito also said that the doctrine of bowing to precedent is at its weakest in constitutional cases.
8. ALITO CLAIMED THAT ROE V WADE WRECKED HAVOC ON LEGAL PRINCIPLES, BUT HE HAS NO RIGHT TO TALK ABOUT WRECKING HAVOC ON THE LAW
In 2000, the Conservative majority gave us the most unjust decision since Dred Scott. I am referring to Bush v Gore.
I am certainly not saying that because Gore was better than Bush. I am arguing law, not politics.
I have no time to list the demerits of the decision.
Instead, I will reveal the one decisive sentence that proved that the decision represented the beginning of de-democratizing America.
The Court said: This decision will have no precedential effect.
Precedent means that like cases should be decided the same way because we are all equal. If an axe murderer is sent to jail in case A, then an axe murderer should be sent to jail in case B. To let some axe murderers stay out of jail, is to hold that some axe murderers are better than other axe murderers.
In Bush v Gore, they wanted to give Bush an unjust victory and Gore an unjust defeat. To prevent this from being repeated, they held that the decision would not have any precedential effect.
When I went to law school, all decisions, except decisions from rather small courts with rather insignificant cases, were capable of having precedential effect. Since Bush v Gore, more and more courts are stating that more and more decisions will have no precedential effect.
When precedent is dispensed with, and people in like situations can be given different judicial results, equality before the law is dead.
The conservative majority on the Court has been the jurisprudential prelude to Donald Trump. Just remember: Clarence Thomas’s wife pleaded with the Trump white house to use any maneuver, legal or illegal, to prevent Biden from taking office.