Edition #84: You Need To Know About This

Plus, when the best deal is what you give away, a robot attempting to win the New Yorker cartoon caption contest, and a wonderful dance video

A Note From the Editor

I began watching scary movies regularly last spring during lock down, and the more I watched the less afraid I was. Where I once cowered in fear from such movies, it didn’t take long before I could watch any number of them alone at night and still fall fast asleep shortly thereafter—The Conjuring, The Amityville Horror, The Shining, you name it. When you watch enough scary movies, a pattern begins to emerge. The most obvious part of the predictable sequence is when a character walks straight into the arms of the villain. It’s the knock on a front door at night moment, or the venturing into a dark, creepy basement armed with nothing but a flashlight. You, the viewer, yell “Stop! Don’t go down there!”  because the outcome of such action is so obvious, so inevitable. Yet the character pretends to have never seen it coming. They walk right into their own demise, seemingly oblivious.

Today, as a young woman in America, I find myself looking around with a similar reaction; how are any of you surprised? When Justice Ruth Bader Ginsburg died last fall, I fell to my knees and wept—not only for the loss of a trailblazing woman, but because of the series of events her death would set off. It happened quickly; a new justice, Amy Coney Barrett, was rushed through the nomination process and appointed to the highest court of the United States, arguably the most powerful body in the country. Right away, abortion activists began to wonder how soon this new, super-majority conservative court would overturn Roe vs. Wade. Again, none of this was a surprise. These were dominoes lined up perfectly, one push setting the whole line in motion. 

Later this year, the court is hearing a case that will call Roe into question, possibly overturning it or stripping it beyond recognition, but that isn’t what I’m going to write about today. That we knew would happen—at least those of us who were paying attention.

Let me start with a disclaimer: what I’m about to write is in no way intended to be alarmist, but it is utterly important to know about, to understand, and to talk about with others. This is a very clear, definitive starting point to a marked change in our country. This is not a bunch of extremist, right wing terrorists storming the Capitol. It is a calculated, systematic approach to dismantling women’s rights, using perfectly legal methods to do so. We cannot act surprised when this comes down the pipe, because we can see it right now, well ahead of time.

On July 29th, two prominent political philosophers—John Finnis, a former Oxford professor and an endowed chair at Notre Dame, and Robert P. George, a professor at legal philosophy at Princeton—filed an amicus brief with the Supreme Court. In case you don’t know (I didn’t), an amicus brief is a document any persons not directly involved in a case can file with the court in order to present a point to try to influence or sway the court’s decision. The brief outlines a clear path for the Supreme Court to outlaw abortion in all 50 states. Pause here and read that again. Your initial reaction might be, “There’s no way that could happen. This is America! It’s 2021!” But in fact, there is a way, and a very clever one at that. 

The brief states that the prohibition of abortion is constitutionally obligatory because unborn children are considered “persons” within the “original meaning” of the Fourteenth Amendment. As such, no state can legally permit abortion, according ot the brief. Under this interpretation of the Fourteenth Amendment, doing so would be “unconstitutional”.

You might remember that we have a conservative majority on the Supreme Court, but let’s not forget that four of those seven justices—including the two newest justices, Amy Coney Barrett and Brett Kavanaugh—consider themselves Originalists. They believe above all else that the Constitution should be interpreted as it was originally written. This narrow interpretation of the constitution grants these judges an out, because they can cite their Oringinalist views as sole justification for rulings, even if they don’t personally “agree” with the ruling itself. 

The two distinguished political philosophers who filed this amicus brief were well aware that four of the nine justices are Originalists, and it is for that very reason their argument advocating for outlawing abortion of all 50 states is based on the Fourteenth Amendment—because if the argument is a matter of the constitution’s “original meaning,” those four Originalist judges will be ostensibly “forced” to agree with it. What’s more despicable about this clever trick is that the Fourteenth Amendment was ratified specially to abolish slavery and establish civil rights for Black Americans. In short, a constitutional amendment intended to grant equal freedoms for Black Americans is now being weaponized against women by two old, rich white men.

The current anti-abortion movement, especially as it pertains to the sitting Supreme Court and Texas’s SB 8, has been utilizing similar legal loopholes and tricks to jam their agenda forward. As an example, the public was generally shocked when the Supreme Court issued a shadow docket ruling—a method the court can use to dismiss emergency appeals without having to fully hear the case—allowing Texas’s abortion ban to go into effect instead of blocking the ban while the case plays out in the lower courts, as would be precedent. The court justified their use of the shadow docket on such a high profile case with yet another loophole; because the Texas law makes citizens the bounty hunters and enforcers rather than the state, the law raises “complex and novel antecedent procedural questions”. The way the law was written in Texas, then, worked—it was “too complex” to be interpreted by America’s most esteemed court. Yet another trick.

I have so often said, and heard others say, that recent developments in the right wing’s political approach are flagrantly hypocritical, but such commentary holds no weight. Hypocrisy, it seems, doesn’t matter when you are able to use it to push your political agenda forward. Still, I can’t help but to inspect the layers of hypocrisy that pad this amicus brief. Firstly, this revisionist interpretation of the Fourteenth Amendment is in direct conflict with the prominent conservative ideology calling for small government, or minimum government involvement in citizens’ personal and business affairs. If this brief were to work, and if the Supreme Court were to use it was justification to outlaw abortion in all 50 states, it will be a clear example of federal overreach—the very principal conservatives claim to be against.

Even more obvious of a hypocrisy is the current vaccine situation. Many Americans have pushed back against president Biden’s recent vaccine mandates, but the issue has particularly sparked outrage in conservative circles. Recently, I’ve heard a certain sentiment expressed: “It starts with vaccine mandates and soon the government is controlling you, monitoring your every move, telling you what you can and can’t do. It’s scary!” There seems to be palpable fear that vaccine mandates could lead to some authoritarian government in which the people have no control. These fears are based on nothing but speculation and alarmist tendencies. There is no clear cut path for the federal government to wake up one day, wave a magic vaccine mandate wand, and suddenly have the power to turn our democracy into an authoritarian regime. There is, however, a clear, legally justified path (see above) for the courts to strip women of the right to have autonomy over their own bodies. Where is the outrage for this injustice, for this governmental overreach? It seems overreach is only a “bad” thing when it puts the freedoms conservatives value into question, not when it threatens women’s reproductive rights. 

Consider the circumstances of Texas’s SB 8 in action: citizens being incentivized to spy on neighbors, to report them for any suspicious behavior that looks or smells like abortion in exchange for a $10,000 reward. Citizens as state-sanctioned bounty hunters. The scene evokes clear images of Stalin's communist Russia; neighbors spying on each other, ratting each other out to stay on the government's good side. The threat of the United States turning into communist Russia, as you know, is another one of the frequent fear tactics employed by staunch conservatives. And yet, a staunch conservative law is turning one of America’s largest, most powerful states into a version of the very country we were taught to hate. Imagine what direction America will go in if we utilize the citizens-as-enforcers tactic in other, non-abortion related legislation. Is that a future anyone, right or left, wants to live in? Is that freedom? It’s an image too frightening to ponder. 

In the article that introduced me to this amicus brief, retired constitutional law professor Garrett Epps concludes with a passage I have not stopped thinking about:

“What this means, readers, is that a state legislature—if it is feeling chivalrous—may (but does not have to) punish women who have abortions somewhat less harshly than doctors who perform them. And a court could also (but does not have to) decide not to punish a woman who undergoes an abortion necessary to save her life—or perhaps knock a few months off her sentence.

Here is the grinning skull behind a lot of the highfalutin moral talk about abortion. Much anti-abortion argumentation embodies the unspoken premise of the passage above: Under the Constitution, a fetus is a person from the moment of conception. The woman who carries that fetus is, well, never a person at all.

It is important to remember that the public has power. We have voices, we have protest, we have our personal platforms and our circles of influence, no matter how small we might think them to be. In the case of this amicus brief, we should be aware of it and we should be talking about it, frequently and widely. The worst thing that can happen is that, because of its legal complexity, the brief goes mostly unnoticed until it works its way into the Supreme Court’s justification and, eventually, is used as a basis to outlaw abortion in all fifty states. I want to reiterate that it is not impossible, nor is it a twenty years off improbability, but a viable path that is clearly laid out in a brief written by two highly educated, well respected legal philosophers. 

Public discourse has the ability to influence the courts decisions and certainly the decisions of political leaders. On this specific issue, about this specific brief, get loud. You can share this essay, or any of those linked above, as a basis to begin the conversation with people in your life. But please, talk about it. Share it. Because if we don’t, we cannot be surprised when we answer the knock on the door at midnight and are faced with a dangerous, hooded figure. We will have to admit that we saw him coming, and that we answered the door anyway.

Share

I would love nothing more than to hear your preliminary thoughts on the situation outlined above. You can send me a personal reply by responding to this email, or leave a comment for discussion below.

Leave a comment


Three Pieces of Content Worth Consuming

  1. When The Best Deal Is What You Give Away. A sweet, tender essay about the simplicity of life’s greatest gifts. I revisit this one often whenever I want to remind myself of how much goodness exists in the world, and it is a wonderful story to share with children on the importance of giving, too.

  2. Help A Computer Win the New Yorker Cartoon Caption Contest. The Pudding is one of my favorite non-traditional media sites. They use data and visuals to tell complex stories and are constantly running new experiments using AI, this this one. Every week they test a new method and have AI generate a caption for the New Yorker cartoon caption content. Look through some of their old submissions and be ready to be afraid of robots stealing our jobs, because it turns out robots are intelligent and witty!

  3. I Married A 9/11 Widower. Sometimes I Still Feel Guilty About Our Second Chance at Love. When I first read this headline, I fully expected a cheesy essay, but this one was moving, well written and not cheesy in the least. An interesting take on the complexity of second chances at love, made even more complex with a tragic loss throw into the mix.


Perhaps You Should… Get Help Choosing Your Next Book

Who doesn’t love a good decision chart? With some many big books coming out this fall, use this handy tool to help you choose which one to read next.


**Bonus Content** (A Dance To Watch On Repeat)

Even if I didn’t grow up with one of the dancers in this video, I would still be equally impressed by this combo. It’s difficult to be so in sync with another dancer with a combo this stylized, but these two manage it flawlessly. Be sure to scroll to the second slide for a treat!


A Quote From A Book You Should Read:

“The main problem for Maggie, which several bystanders observe, is that she is too aggressive. Victims aren’t supposed to be snarly.”

-Three Women by Lisa Taddeo


This newsletter is best served with a side of conversation, so drop your opinions, reflections, and thoughts in the comments below and let’s get to talking.

Leave a comment

Or, share the most thought-provoking piece from today’s edition with someone you love, then call them up to discuss, debate, and percolate. As a wise woman once said, “Great minds discuss ideas.”