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.    

     The Republican Party recently declared that they plan to oppose any measure to curtail climate change.  Climate change affects all of us, but especially young people, who will have to spend their lives dealing with its consequences.  In addition, Republicans have continued their attacks on gay, trans, and non-binary people.  This is another issue where young people completely disagree with this “strategy.”  For recent generations, sexual orientation is a non-issue, a simple fact of someone’s identity, which they have no problem with.  Finally, young people, as well as most Americans, are in favor of legal abortion.  And young people, who of course can get pregnant, are particularly affected by its criminalization.  Republican opposition to abortion has largely succeeded by suppressing voting rights, gerrymandering, and making it more difficult to change state constitutions, as is currently going on in Ohio. 

     When you read the Supreme Court majority opinions in the Dobbs case, which overturned Roe v. Wade, they are truly shocking.  Samuel Alito cited Matthew Hale as an authority.  Hale was a 17th-century jurist who believed that women should be burned as witches and executed if they attempted to end a pregnancy (which wasn’t even a crime then).  The other majority judges cited every single anti-abortion statute even established.  They failed to mention that the vast majority of these were passed in the late 19th century, when the nascent American Medical Association was attempting to oust midwives from the birthing process.  Not one of them mentioned the negative side of outlawing abortion: most hospitals housed “septic abortion wards” and nearly 1000 women died from illegal abortions each year.  Outlawing abortion only ends safe abortions.

     Given young people’s opposition to Republican positions on climate change, sexual orientation, and abortion, I think progressives should put their energy and money into encouraging young people to vote.  I’ve long supported voting rights organizations (another Republican strategy, and a sign that they’re on the losing side, is to curtail voting rights) and I’ve written them all this weekend.  They include MoveOn, Indivisible, and the Voter Action Project.

     I’ve written before about how I think Republicans are pursuing a losing strategy.  But to make sure they lose, let’s work to get out the vote among young people!                                

Here is my section of an event at Brooklyn College on October 18th.

I was thinking about writing a blog this month and realized that I was too busy working for the election.  So I’m writing about that.  It’s less than five weeks to the mid-term elections on November 8th.  These elections are crucially important.  If the Democrats win, laws affecting all of our lives can be passed.  If not, we return to Trump and his Republicans’ failed policies.

     Some of the most important laws are, first, reversing the Supreme Court’s decision overturning Roe v. Wade.  The Republican fiction that this “just gave power to the states” has been negated by two events.  First, a number of states have denied abortion in all cases, including rape, incest, and saving the life of the mother.  Other states prevent doctors from intervening unless the mother is near death, even if the fetus has died.  Second, Lindsey Graham and the Republicans have proclaimed that they will pass a nation-wide abortion ban.  Regardless of your personal feelings about abortion, do you believe you really have the right to determine this policy for all Americans?  The Supreme Court does.  Judge Alito’s opinion included the theories of Sir Matthew Hale, considered a misogynist even in his own time, the 17th century.  In addition to outlawing abortion, Hale argued that women could be burnt as witches and that husbands could rape their wives.  Judge Clarence Thomas went even further.  He argued that the court should rule against same-sex marriage and outlaw contraception.  (I’m not making this up.)  He did not rule against inter-racial marriage, however, since he is a black man married to a white woman.  What hypocrisy!

     It is not only abortion that is on the ballot this year.  A number of Republicans, and even their amazingly vague platform, have argued that states have the right to overturn federal elections (one of Trump’s main tactics in 2020) and against renewing both Social Security and Medicare.

     So what have I been doing to counter this – and what can we all do?  First, I have been donating money to Democratic candidates.  First, for the Senate, second for the House, and third, for Governors.  I think we have a good chance to take the Senate, in part because of the caliber of many Republican candidates, like Mehmet Oz in Pennsylvania.  We have a more difficult time taking the House, largely because of Republican gerrymandering, but it is still possible.  We won the House in 2020 and the same gerrymandering was in effect.  Finally, there are some tight and important governor’s races: in Florida, Texas, and Georgia.  Christ vs. Desantis in Florida, O’Rourke vs. Abbot in Texas, and Abrams vs. Kemp in Georgia.

     So what can we do?  First and most important, DONATE MONEY!  Now is the time!  Second, write postcards to people in swing states, urging them to vote.  Both Indivisible and MoveOn will send them to you.  Personally, I’m writing to folks in Pennsylvania.  It’s not too late to do this and it makes a big difference.

         Finally, we can canvas, especially if we live in swing states.  I did this in previous elections, but can’t right now.  But you all can – or convince those you know in those states to do so.  This election is vitally important to all of us.

For Americans like myself, who are old enough to remember when abortion was illegal, having to fight this battle again is both dismaying and unnecessary. Every poll insists that at least 60% of Americans believe abortion should be legal. 30% of anti-abortionists believe it should be legal in some instances, like rape or incest.[1] And yet the Supreme Court has overturned it!

The majority's argument was based on the ludicrous proposition that since abortion was not mentioned in the Constitution in 1868, the 14th Amendment ("equal protection under the laws") does not apply. This is a ridiculous and dangerous argument. The Constitution does not mention abortion. It also does not mention women – does that mean that women should not exist? It does not mention slavery by name, yet slavery both existed and was protected by the original Constitution, which called slaves “other persons” and forbade ending the slave trade before 1808.

The so-called “originalist” position, held by this conservative majority, makes no sense to me. The brilliance of the Founding Fathers was to acknowledge that they did not know what the future would bring. They put the power to amend in the Constitution, only limiting it to not creating a new monarchy. Article IX of the Bill of Rights, without which the Constitution would not have been ratified, states “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This seems pretty clear to me.

The Court which ruled against abortion is profoundly undemocratic. All the justices who want to reverse Roe v. Wade were appointed by presidents who did not win the popular vote (Bush and Trump). A number of them lied during their confirmation hearings about this issue. Finally, such a ruling would overturn the legal doctrine of “stare decisus,” which holds that long-established law should not be overturned. Anti-abortionists cited Brown v. Board of Education, which overturned segregation, as their precedent.

But overturning legal abortions will bring about terrible conditions. We know that outlawing abortion does not end the practice, it just ends safe abortions. When abortions were illegal, hospitals had what were called “septic abortion wards.” In the 1940s, 1000 women died each year from infections received from abortions.

One-third of those opposed to most abortions agree that they should be allowed in cases of rape or incest. But the states which hope to make abortions illegal do not make such exceptions. What about the eleven-year-old raped by her father? Such cases are exceptional, but they do occur.

Most abortions in the United States are now caused by medication which can be ordered online. Are states willing to interfere with people’s right to buy such products? They object to the “right to privacy” which underlay Roe v. Wade. How far are they willing to go to undermine all privacy?

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     For Americans like myself, who are old enough to remember when abortion was illegal, having to fight this battle again is both dismaying and unnecessary.  Every poll insists that at least 60% of Americans believe abortion should be legal.  30% of anti-abortionists believe it should be legal in some instances, like rape or incest.[1]  And yet the Supreme Court seems ready to overturn it.

     This last statement is based on Judge Alito’s leaked opinion, which is supposedly supported by four other justices.  Alito’s arguments are ludicrous, especially to a historian.  He asserts – correctly – that the Constitution does not mention abortion.  It also does not mention women – does that mean that women should not exist?  It does not mention slavery by name, yet slavery both existed and was protected by the original Constitution, which called slaves “other persons” and forbade ending the slave trade before 1808.

     The so-called “originalist” position, which Alito’s holds, makes no sense to me.  The brilliance of the Founding Fathers was to acknowledge that they did not know what the future would bring.  They put the power to amend in the Constitution, only limiting it to not creating a new monarchy.  Article IX of the Bill of Rights, without which the Constitution would not have been ratified, states “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”  This seems pretty clear to me.

     The Court which hopes to rule against abortion is profoundly undemocratic.  All the justices who want to reverse Roe v. Wade were appointed by presidents who did not win the popular vote (Bush and Trump).  A number of them lied during their confirmation hearings about this issue.  Finally, such a ruling would overturn the legal doctrine of “stare decisus,” which holds that long-established law should not be overturned.  Pro-abortionists cited Brown v. Board of Education, which overturned segregation, as their precedent.

     But overturning legal abortions will bring about terrible conditions.  We know that outlawing abortion does not end the practice, it just ends safe abortions.  When abortions were illegal, hospitals had what were called “septic abortion wards.”  In the 1940s, 1000 women died each year from infections received from abortions. 

      One-third of those opposed to most abortions agree that they should be allowed in cases of rape or incest.  But the states which hope to make abortions illegal do not make such exceptions.  What about the eleven-year-old raped by her father?  Such cases are exceptional, but they do occur.

      Most abortions in the United States are now caused by medication which can be ordered online.  Are states willing to interfere with people’s right to buy such products?  They object to the “right to privacy” which underlay Roe v. Wade.  How far are they willing to go to undermine all privacy?

     Now is the time to oppose such views.  I’m marching this Saturday, May 14, along with at least 700,000 of my fellow citizens.  Groups like the old Jane Collective, which enabled poor women to receive abortions are coalescing already.  Join us!

[1] Pew Research Center, May 6, 2022

     One of the four medieval temperaments, “sanguine” means optimistic or positive, especially in an apparently bad or difficult situation.  (The others are choleric, melancholic, and phlegmatic and these categories supposedly encompassed all people.)  I am sanguine by nature and I’ve found it especially helpful nowadays.  In recent weeks, Republicans have passed an outrageous anti-abortion law in Texas, which forbids any procedure after six weeks, when most women don’t even know they’re pregnant, has no exceptions for rape or incest, and empowers any citizen to arrest a woman or doctor and receive a $10,000 bounty.  A number of Republican state legislatures are severely limiting voting rights, in the hope of disenfranchising black and brown citizens – part of the “Make America Great Again” agenda, which only benefits whites.  And Republicans in Congress are currently refusing to raise the debt ceiling, as they did many times under the Trump presidency, which threatens that the U.S. government will go bankrupt – a major national calamity. 

     In the face of all this, most people are dismayed and discouraged.  I’m not.  I think that the Republicans have created a losing strategy.  Being anti-voting and anti-woman, as well as disagreeing to a standard parliamentary maneuver to fund the government (whose deficit they added considerably to with the Trump tax cuts, especially for rich people) seems to me a good way to lose elections.  I’m joined in this opinion by the eminent professor of history at Boston College, Heather Cox Richardson, who publishes a daily column called “Letter from an American.”   She argued on October 5 that Republicans under Mitch McConnell will force the Democrats to end the filibuster, a move that would tremendously help Biden’s agenda.

     Personally, I think the Republicans will lose big in 2022.  And I don’t think I’m being unduly unrealistic.  Whether that happens or not, it’s much pleasanter to live as an optimist than a pessimist.  In this, I think back to the seventeenth-century philosopher, Blaise Pascal.  In his so-called “wager,” he argued that it makes more sense to believe in God than not.  If you believe, and God exists, you win big.  If he doesn’t, you don’t lose much.  If you don’t believe in God, and he exists, you lose big.  If you don’t believe and God does not exist, nothing is lost or gained.

     A major objection to this argument, then and now, is that people are unable to will themselves into belief or disbelief.  But this premise does not hold.  Psychology argues convincingly that people can change their basic beliefs.  In this case, I think that living optimistically is not only a much more pleasant way to exist, but it also can aid political decisions.  Try it out!

In 1858, Ernestine Rose addressed a "Free Convention" in Rutland, Vermont.  Especially concerned about women's participation, she declared that if they did not speak out, "Silence implies consent.  It is high time the ladies learned to say No.  Therefore if you mean yes, say yes; and if you mean no, say no; though you find yourself in a minority of one."

Rose was more isolated in her day than we are in ours.  As both the president- and vice president-elect proclaim that they want to reverse Roe v. Wade, prevent funding for contraception much less abortion, and urge states to require "burials" for miscarriages and abortions, it is time for us to say NO!  There are a number of ways to do this.  Give donations to Planned Parenthood, NARAL, the Center for Reproductive Rights, or NOW.  Many have done so in Mike Pence's name.  Join the Women's Marches around the nation on the day after inauguration, January 21, 2017.  I'll be in the New York one, which assembles at noon at Union Square and will march up 5th Avenue to Trump Tower.  Write your representatives, and here actual letters and phone calls are more effective than emails or digital petitions. We can affect political decisions that will shape women's lives.  Outlawing abortions does not mean the end of abortions, it just means the end of safe abortions.  Do we want women to die as they did before Roe v. Wade?  If you mean "no," say NO!