HAS THE SUPREME COURT EVER HEARD OF RAMIFICATIONS?

It should have.

 The Advocacy Newsletter: Connecting.... the Dots

Volume 8     Number 416

                                               

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Before taking any action, prudent persons consider the ramifications of what they are going to do: the likely outcome, if you will. Not so our Supreme Court, as they render decisions that will weigh heavily in our society. There are five things that the Supreme Court justices consider: existing laws, the personal views of the justices, the justices' interactions with one another, social forces and public attitudes, Congress and the president.

Of these, the one that comes closest to including ramifications as a consideration is social forces, which are any human-created ways of doing things that influence, pressure, or force people to behave, interact with others, and think in specified manners. That does not clearly state that the ramifications, or effects of taking a course of action, are among the elements that the justices consider. Nor, looking at the accounts of Supreme Court trials, do we see evidence that ramifications are up front in the Court’s deliberations.

And yet they should be the ultimate criterion in decision making process. The justices should ask how each decision will impact society. Isn’t that what the law is about, to ensure that what we do is done in fairness to the people?

Image by Nick Anderson

Case in point is the recent Dobbs v. Jackson Women's Health Organization (2022), in which the Supreme Court overturned Roe v. Wade (1973), that had guaranteed a constitutional right to abortion. Six conservative justices voted to uphold a Mississippi law banning nearly all abortions after 15 weeks of pregnancy. The new law allows each state to determine its own rules, upending the Roe ruling. Some state constitutions, however, independently protect abortion rights. The new law essentially hobbles, if not eliminates, the possibility that women will be able to get an abortion in a significant portion of the country.

 In their deliberations the Supreme Court justices considered such factors as:

—When life begins

—Constitutional precedents

—The rights of the parent and the child

—Rights of privacy

—The sacredness of life

—Prior decisions

—States’ rights

—Women’s rights

Nowhere at the hearings was consideration being given to the possible ramifications if young women are denied ready access to abortion. That is what law should be about protecting citizens. We have seen plenty of the results in the years before Roe vs Wade allowed abortions for the last 50 years. Prior, there were numberless anecdotes about botched coat-hanger abortions resulting in deaths, back-alley abortion mills, or young women poisoning themselves with some toxic fluid to bring about an abortion. Hospitals were crammed with women who had self-aborted.

Shouldn’t the justices have considered that, according to the World Health Organization, some 23,000 women die from unsafe abortions each year and tens of thousands more experience significant health problems globally? It was further estimated that banning abortions in the U.S. would lead to a 24 percent increase in the number of pregnancy-related deaths.

Overall, the United States already has the highest maternal mortality rate among developed nations. The tighter abortion law will cause the U.S. to fall further behind. This is expected to be even more dire for women of color. The states with the most restrictive abortion laws have the highest maternal mortality rates, and states with more permissive laws on abortions have fewer maternal deaths. It has been found that women who were denied abortions were more likely to die or experience serious complications and poorer physical health for years after pregnancy.

On the other hand, it was found that legalization of abortion in repeal states led to a 4 percent to 11 percent decline in births in those states relative to the rest of the country. It reduced the number of women who became teen mothers by 34 percent, and teen brides by 20 percent. It reduced maternal mortality among Black women by 30-40 percent. Abortion legalization also reduced the number of unwanted children, reduced cases of child neglect and abuse, and reduced the number of children living in poverty as well as increasing their likelihood of attending college and reducing their likelihood of living in poverty.

Today nearly half of pregnancies are unintended, and approximately one in four women receive an abortion in their reproductive lifetime. Women continue to rely on abortion access to determine their reproductive lives. Increases in distance to obtain an abortion in states that ban them will affect approximately one-third of the women in affected regions, rendering them unable to reach an abortion provider. That will amount to 100,000 women in the first year having a baby they don’t want.

Then there was the follow-up to a failure to have an abortion, unwanted babies cast aside for adoption or raised under egregious circumstances, young women whose lives were shattered by having an illegitimate child. The very people who feel life is sacred, the “pro-life” people, have no problem in turning away once the children are born.

Where in their deliberations did the court consider the consequences of their action, as indicated in the information just cited, and why wasn’t this information a major consideration before the new law was passed? Because historically the justices don’t work like that, but they should.

Let’s face it, Roe vs Wade was overturned, not because of good case law, but because five justices who represent a minority view in this country had a majority on the Supreme Court and were able to exert their will.

So much of what goes on in the Supreme Court is predicated on what the Founding Fathers wrote into the Constitution. But trying to put every modern case into the precedents that were written almost a quarter of a millennium ago is asking too much. That our ancestors didn’t write about abortion shouldn’t be a factor in deciding the merits of a case to eliminate it.

Literal-minded jurists say that only those situations written about back then should be considered. Do you think that the framers would have written the second amendment and the right to bear arms differently if they knew about AR-15 semi-automatic weapons that fire a handful of bullets in fractions of a second? You bet they would have. Or would traffic laws have been different if they knew about carriages that travel at a speed of 100 miles an hour? Or would their laws reflect that doctors could replace defective kidneys with new ones or that we could talk to each other from far distances with little handheld devices? So, some jurists try to currently ignore realities, saying the only ones that count are those from another time.

Ridiculous! These men were trying to use the latest thinking to help formulate a new nation and could only do so with what they could imagine in their time. They would have changed their reasoning if they had more up-to-date knowledge. After all, one of their members, Benjamin Franklin, was a brilliant scientist, discovering the nature of lightning.

Another way to think about it is like the way a businessperson is constantly making decisions. Most every one of them deals with the consequence of taking or not taking action. The determinant of the course to be taken is what the individual expects to happen based on the action taken that day.

In a weird kind of way, this Supreme Court’s narrow thinking also plays out regarding the practice of gerrymandering in our elections. This is when one political party in control of the election procedure seeks to artificially configure the district boundaries to ensure that their candidate will gain an advantage. This has been occurring for hundreds of years but has become more of a problem recently because of the use of sophisticated programming that can simulate the effects of countless county configurations. Both political parties are guilty of this excess, but as usual, the Republicans have been more active in this quest.

You would think that the Supreme Court would step in to prevent this egregious attack on our sacred right to vote. Wrong! Under Chief Justice Roberts, the Supreme Court has refused to become involved, sending these cases back to the states, where they often find refuge among partisan legislatures and conservative justices, all those who created the problem. All the while the Chief Justice says that “partisan gerrymandering claims present political questions beyond the reach of the federal courts.”  He leaves the task to the states who have created this steadily increasing problem. His failure to consider this duplicitous action in creating legislatures that do not reflect the majority will of the people is a disgusting act of indifference. Again, Chief Justice Roberts is obviously not considering the ramifications of his action or inaction.

In our everyday lives we also make countless decisions predicated on what we anticipate the outcome to be. You take an umbrella because you anticipate it is going to rain, based on looking at the sky or watching a weather forecast. The Supreme Court doesn’t seem to be smart enough to check the weather before making enormous decisions. It should.                            

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The current Supreme Court’s liberal justices--“The majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them. The majority thereby substitutes a rule by judges for the rule of law.”

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