In October of 2022, shortly after the Supreme Court reversed Roe v. Wade, replacing it with the Dobbs Decision, I sat on a Brooklyn College panel  called “Abortion, the Supreme Court, and Really Bad History.”  I joined two colleagues, one from History, the other an anthropologist, to decry the decision.  Roe relied on a woman’s right to privacy; Dobbs gave states the power to regulate abortion.  (If you’d like to hear it, it’s on my website, bonnieanderson.com, under Videos.)  I discussed conditions when abortion was illegal, which the Court never mentioned.  About 1,000 American women died each year from illegal abortions and hospitals established Septic Abortion Wards to treat those with major infections from the practice.  As many feminists have remarked, making abortion illegal does not do away with abortions, it just does away with safe abortions.

     Instead the majority of the Court both cited every anti-abortion law ever passed and embraced “originalism,” a doctrine which maintains that what was originally in the Constitution should prevail.  This strikes me as ludicrous.  Women are not mentioned in the Constitution; do we not exist?  Slavery was countenanced in the Constitution, should that still exist?  The U.S. Constitution contains both the power to amend and Article 9 of the Bill of Rights which holds that if not mentioned “all other rights are retained by the people.”   These clauses prove that holding to the original document goes against its original authors’ beliefs.

     In addition, the current Supreme Court opposed a standard legal doctrine: “stare decisis,” “to stand by things decided.”  This precept holds that a long-maintained law should be upheld except under extraordinary circumstances.  One such circumstance occurred in 1954, when the Supreme Court overturned its previous decision, Plessy v. Ferguson, which legalized segregation in 1896, with Brown v. Board of Education, which ended it in the schools.  The current Court declared that ending Roe was a similar decision.  But it wasn’t.  The vote in Brown was unanimous; that in Dobbs was not.  Brown widened civil rights; Dobbs curtailed them.  In addition, the majority justices argued that they were not overturning stare decisis, but just “reinterpreting” it.  In his opinion, Justice Alito cited Matthew Hale, a seventeenth-century jurist considered misogynist in his own day.  In addition to condemning abortion, which in common law had always been legal before “quickening,” i.e. when the embryo moved inside the womb, Hale defended burning women as witches.  In his opinion, Justice Thomas also advocated ending same-sex marriage and contraception, but not interracial marriage, since he is a black man married to a white woman.

     What about today?  Generally, judges recuse themselves from sitting on cases in which they have a personal interest.  Thomas’s wife, Ginni, has strongly advocated and worked for the election overthrow of Jan. 6, 2021.  Thomas has often stated that he and his wife are “one person.”  The U.S. flag hung upside down – a symbol of Jan. 6 – for a number of days outside Judge Alito’s residence.  The Pine Tree flag, with its slogan, “Appeal To Heaven,” flew outside his summer home for a while.  Alito has argued that his wife “likes to fly flags,” and puts the blame on her and a neighbor who supposedly antagonized her.  Thomas also separates himself from his wife’s actions.  Both have refused to recuse themselves from imminent cases dealing with Jan. 6.  Chief Justice Roberts, who originally declared that his position was that of “umpire,” has refused to intervene.  But what would an umpire do if one team flew the flag of its opponent?

     Can anything be done?  Traditionally, Congress can override the Court.  But this Congress is so divided that that cannot happen now.  However, there is another remedy, which Jamie Raskin, a Democratic representative from Maryland, has recommended.  He recently wrote that “The Constitution, and the federal laws under it, is the ‘supreme law of the land,’ and the recusal statute explicitly treats Supreme Court justices like other judges: ‘Any justice, judge or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.’” The only justices in the federal judiciary are the ones on the Supreme Court.  So the other justices could compel Alito and Thomas to recuse themselves.

     However, this is also unlikely.  What is needed is a decisive Democratic victory in November.  I’m hoping for a trifecta –- the Democrats winning the presidency, the senate, and the house.  At this time, the nation has split on the issue of abortion.  All the Southern states have banned it.  Most of the Northern states have not.  Remind you of anything?  These divisions over states’ rights preceded and helped to bring about the Civil War.  In this case, I don’t think there will be a Civil War.  Instead, I deeply believe that the Dobbs decision will insure a Democratic victory in 2024.