What conflicts drive the make-up of the Supreme Court? This is the second part of a three-part series
This is the second part of a three-part column covering the consequences of the death of Justice Ginsburg and current conflicts over the American Supreme Court. The first part dealt with the impact on the election. This, the second part, deals with the social issues driving the conflicts over the make-up of the court.
The third part deals with the economic, social media, and democracy-related issues facing the court.
Consequences for social issues in the US
The conflicts over culture and personal behaviour are growing, as American society has become more permissive and open. My parents would be greatly surprised at the social conflicts that consume American life.
The federal government has little to say about the rules of personal and family behaviour unless the issue is linked to the basic guarantees of civil and human rights set out in the constitution.
In the past 50 years, the court has intervened frequently to limit the freedom of the state to make laws on abortion, same sex marriage, and rights of freedom of sexual choice. The court has established the equality of treatment for men and women, as well as persons of different religious beliefs. Given the importance of religious considerations, one should keep in mind that the federal government cannot support any religion, but must ensure that there is religious freedom so that each person can pursue their own religious views.
The hottest issue of the social conflicts is abortion. The conflict is essentially religious. Many persons believe that abortion is murder and should never be allowed. There are as always the boundary cases: If the fetus threatens the woman’s life, should her life take precedence?
If the woman is pregnant because she has been raped or the fetus is the result of an incestuous relationship should such a fetus be born? If the woman has six children and her family cannot afford to support and raise another child? One can go on and on setting out special cases. Just keep in mind as the representative case a young woman unmarried, 21 years old, who is pregnant and does not want to have the baby.
She is 10 weeks pregnant. Should the law enable her to go to a medically acceptable clinic and abort her child if that is what she wants? Roe vs Wade establishes that she has such a right.
Originally, the ability of a woman to seek an abortion was a matter for state laws. Abortion had been banned by all states by the late 1890s; the Catholic Church had made abortion a sin in 1869. There was a rising rejection of abortion by public opinion and adoption of laws banning it spread to all states. By the 1960s, women rights movements were arguing that the question of abortion was a matter for the woman, not the state.
What right did a group of old men have to tell a woman what she could do and not do with her body?
The case of Roe vs Wade (Roe was the legal name of the woman to protect her privacy; Wade was the district attorney in Dallas famous for prosecuting Jack Ruby who killed Lee Harvey Oswald who had killed President Kennedy) reached the Supreme Court against a Texas law that banned abortion except when the woman’s life was in danger, which was not the case with Roe.
In 1973, the Supreme Court struck down the Texas law as it violated the 14th Amendment; the court argued banning abortion for the first six months was unconstitutional. The first three months absolutely; states could place some rules for the months four to six, and essentially none for months seven to nine, except for risk of mother’s life -- a woman’s right to privacy.
Ever since, those whose religious beliefs say that this is murder, that the fetus is alive from the time of fertilization, they have tried to get the court to reverse its verdict of Roe vs Wade and allow the individual states to decide if abortion should be permitted.
While the court made some adjustments to the original judgment in subsequent cases, the core finding of a woman’s right to privacy and to determine what she could do remained. With another conservative justice on the court, the probabilities of a reversal of Roe vs Wade are much greater.
Reality is different. If the Supreme Court no longer bans abortions, about 40 states will pass laws allowing abortions. Only a few states in the south, where there is a heavy concentration of religious persons who are against abortion, will pass laws that forbid abortions. Even in these states, in a decade most of these laws will be changed to allow abortion. Opinion polls show a large majority of Americans believe that a woman should be allowed to decide.
The major effect of the court’s reversal of Roe vs Wade is that the poor women in a handful of southern states will not be able to get abortions; a large percentage of women will find the money to go to a nearby state for the procedure. Perhaps 5% of women of child-bearing age in the United States would find it too expensive to go to a state that allowed abortion.
There would soon be private funds to help poor women. In any event, if abortion is banned, there will be illegal places to go to. That of course is dangerous for the woman. In summary, the court that allows banning of abortion; first, this will have little impact on the total picture and second, it drives the poor women into actions that are harmful to their health. It is hard to believe any educated person who gets on the Supreme Court would be so foolish as to vote to overturn Roe vs Wade.
The reality is that the entire conflict over abortion is meaningless. The attitudes of the Supreme Court judges arise from the persistence of legal frameworks that have very little meaning when it comes to these social issues. Women are no longer bound by the many legal and customary rules of the past. Religious views of a few are no longer forced on the society.
But in the short run, this conflict on abortion is a useful tool for mobilizing political support; it matters not that the issue is meaningless. Trump and the Republicans are just exploiting these religious beliefs.
The second issue that will come before the court immediately is the future of the ACA (Affordable Care Act) or Obamacare, an act of Congress that restructured the provision of health care in the US.
This was a serious effort to provide structure for American health care to move towards total coverage within the framework of an insurance system; to stop the scams that the medical insurance companies were running; to insure that pre-existing conditions did not keep one from obtaining insurance; and to provide financial support for poor people in meeting the costs of the insurance.
Getting this act through Congress was a great accomplishment; arguably the most important legislation of the past 40 years.
Trump -- who hates President Obama -- wanted to destroy the legislation; medical insurance companies also wanted to remove the legislation. Trump’s beliefs were due to the convoluted twists of his mind. The medical insurance companies feared that the scam they have perpetuated on the American people would be closed down.
There is now a case to be heard by the Supreme Court, right after the election, that seeks to overturn the ACA and essentially close down what Obamacare has tried to achieve. The insurance companies are anxious to achieve this, and they hope the conservative justices will strike down the ACA, enabling these companies to increase their profits.
This is really remarkable -- I am not sure about abortion, whether it can be considered as murder. But throwing out the ACA is clearly murder. In the midst of a raging pandemic that will get worse in the next three months, the government of the United States is trying to persuade the Supreme Court to remove insurance coverage from 30 million persons, most of whom are low income families.
This is a criminal undertaking hatched by the president and greedy insurance companies. Of course, Trump and all of these Supreme Court justices have very good insurance programs to provide for their health care which they receive free. If the court strikes down the ACA, it will be a true measure of the character and utter cruelty of the United States’ Supreme Court Justices.
The third area of social policy we note is the continuing segregation of schools and housing, despite past court cases that worked to remove such discrimination.
We have pointed out in a previous column the vast differences in the economic and social status of Black people and white people. Despite legislation meant to reduce such discrimination, its persistence remains. A strongly conservative Supreme Court will ensure that there is no effective action to bring about real change.
I do not know if the justices are racially prejudiced. But the constitutional and legislative goals of the US are clear, and it is the court’s duty to help achieve these.
Forrest Cookson is an economist who has served as the first president of AmCham and has been a consultant for the Bangladesh Bureau of Statistics.