Indivisible Upper Yellowstone: Weekly Journal, Vol.3 No.42, Week of April 30 – May 6, 2022 (Abortion Draft Opinion Leaked)

Indivisible Upper Yellowstone – Weekly Journal

The Week of Saturday, April 30 through Friday, May 6, 2022 [Vol.3 No.42]

Abortion Draft Opinion Leaked

The Week’s Most Notable

The most important event of the week – and arguably the decade – happened two-months early. The U.S. was on track for a wide-ranging ruction in its legal, social, and political structure, when the Supreme Court officially publishes the Mississippi-Dobbs anti-abortion decision, sometime in late June or early July. Then on Monday, May 2, somebody leaked an authentic draft document of the majority opinion as of February 2022, as written by Justice Samuel Alito.

The court was expected to come out against Roe v. Wade, but unless the language is modified between now and July, this probable ruling goes far beyond that. There are many ways to characterize the essence of Alito’s version, but the most powerful dynamics of it can be summarized by two points:

– Only rights specifically mentioned in the Constitution (enumerated rights) or that are historically and culturally fundamental (“deeply rooted in history and tradition”) can be considered to have constitutional protection at the federal level.

– All other “rights” should be submitted to the legislative (political) process of the individual states.

According to the conservative wing of the court, since abortion is not explicitly mentioned in the Constitution, it is not one of the fundamental rights and it should be dealt with by legislation in each state. This is the “strict constructionist” view of the Constitution. Alito says the draft ruling does not apply to anything but abortion but it fails to discuss fundamental “Right to Privacy” issues such as contraception and same sex marriage. How long will it take anti-abortion and reactionary ideologues to explore the many ways this ruling can be applied? As U.S. laws have evolved over the past 200+ years, there are hundreds of elements of federal law that are not enumerated or explicitly mentioned in the Constitution. This includes such broad areas as certain racial rights, medical rights, education rights, voting rights, and sexual/gender rights. To say that this ruling opens a legal Pandora’s box is an understatement.

The opinion, as drafted, breaks the historic 1973 compromise that is Roe v. Wade. The debate has always been where on the fetal development time-line, from the moment of conception to the moment of birth, can abortion be legal. Roe, in general, sets that point at 24 weeks. The pending Supreme Court ruling allows states to set their own boundary; most antiabortion states are setting it at six weeks (before most women know they are pregnant), some will set it at conception making legal abortion impossible. In short, this is an absolutist view of abortion, which has no room for women’s rights in any trimester of gestation. It’s up to the states to decide whether incest, rape, or even the health of the mother can justify abortion – many have already chosen not to include these exceptions. One state, Louisiana, is already working on legislation that not only criminalizes abortion but makes the mother responsible for homicide – murder.

It does not require great imagination to see that divesting national issues to the individual states will lead to stunning differentiation in important laws – in short, legal chaos. For abortion, it means the U.S. will divide into “pro,” “some,” and “no” abortion states within a few months of the ruling. Among other things, there will be attempts to stop women from leaving a state to have an abortion in another state. Some states will seek to criminalize faulty natal care or adjudicate cases of stillborn babies. Abortion is a fact; it will exist whether legal or not, which means that preventative laws and the legal cases that arise from them will spawn endless media horror stories. It’s ironic that one of the key arguments Justice Alito offers for returning abortion law to the states is that it would somehow be better, more peaceful, than dividing the nation over Roe v. Wade.

And then there is the kicker: Nearly half of the abortions in the U.S. are now performed with mail-order drugs during the first trimester. This is the evolving world of DIY abortions. It will be very difficult to stop: among other things, it would require all states to criminalize personal medicinal abortion, sanctioning of personal mail inspection, violation of treaties with Canada and Mexico, and suppression of a sophisticated and growing abortion support market. Not to mention that medical abortion technology is advancing rapidly. DIY abortions raise the valid question: Is banning abortions even realistic? And yet, it is fully predictable that for the purposes of political gain, most of the Republican Party, pro-abortion religious groups, right-wing ideologues, and the Trump base will attack this form of abortion immediately.

Abortion rights are likely to be THE issue in the midterms.

Saturday, April 30

[Coronavirus] U.S. Coronavirus Totals: Cases: 83,062,950; Deaths: 1,022,263

[Ukraine] Nancy Pelosi Shows up in Kyiv – The Speaker of the House, third in line to the presidency, travels by train to the middle of a war zone with a congressional delegation, among other things to meet with Zelensky. Not unprecedented, but it does make a statement, which undoubtedly is not appreciated by the Russians – and was so intended. It may be a coincidence, but later in the week the Russians launched an intense attack on the railroad infrastructure of Ukraine.

[Correspondents’ Dinner] White House Correspondents Dinner, First Time in Six Years – It might be a sign of normalcy that Pres. Biden attended and took part in the comedy slugfest. According to Biden, “some guy named Brandon is having a really good year.”

[Mariupol Refugees] Little by Little Civilians Leave or Escape Mariupol – By the end of the week, reportedly, all of the civilians within the Azovstal plant on the outskirts of Mariupol either escaped on their own or were transported by agreement with the Russians. On the other hand, Ukrainian soldiers are still resisting and Putin will have difficulty in claiming a complete victory in Mariupol by May 9, not that that will stop Russian propaganda.

[Ukraine] Russian Donbas Offensive Not Obviously Effective – Consensus military assessment is that the major Russian assault in the Donbas region has proceeded slowly and not resulted in the Russian predicted capture of territory or villages. Concurrently, Ukrainian forces of law and state counteroffensive in the Northeast around the city of Kharkiv.

Sunday, May 1                                                                                                           

[Mexico] Mexico Moves Trade Link to New Mexico – Thanks to Texas Gov. Abbott’s now-defunct border inspection project, which cost the economy of Texas an estimated $4.2 billion, Mexico has decided to move a long planned cross-border trade railway into New Mexico.

[New Mexico] New Mexico Wildfire Expands to Historic Proportions – By the end of the week, wildfires in the state began merging, threatening cities such as the Old West town of Las Vegas. Drought conditions, high winds, and difficult access have created one of the worst early-season fires in the state’s history.

Monday, May 2

[Abortion] Politico Publishes Authentic Leaked Supreme Court Majority Draft Opinion on Abortion – For the first time in history, a full draft majority opinion of the Supreme Court has detonated the volatile abortion controversy two months ahead of time. Everybody knew this was coming – that the conservative majority of the Supreme Court will in some fashion dismantle the 49-year-old Roe v. Wade compromise. What was not expected is the absolutist tone and content of the opinion as written by Justice Alito. As he put it, Roe “was egregiously wrong and deeply damaging,” and its companion decision, Planned Parenthood v. Casey, “limited abortion rights without eliminating them, prolonging the court’s error.” As opinion polls have shown for years, limited abortion is highly supported; banning abortion is unpopular. Consequently, backlash was expected, but this opinion is so open to overreach and authoritarian anti-abortion laws, there is likely to be a backlash on top of the backlash. The uproar starts now, with the Republicans trying to run away from the issue by hammering the leak instead of the opinion, and Democrats scrambling to find a way to benefit from an apparent political advantage.

[Ukraine] Germany Agrees to Join European Embargo of Russian Oil – As the key economy in the EU and NATO, Germany has the most to lose by embargoing Russian oil and gas; it has long hesitated on the issue. This week, it agreed to almost literally bite the bullet to develop a schedule for all but eliminating Russian petroleum from its economy.

[Climate Change] Record Early Heat in India and Pakistan – The high reached  120.2°F in the Sindh province of Pakistan. New Delhi has recorded seven straight days with temperatures over 104°F. As one climate researcher put it, “It tests the limits of human survivability.”

Tuesday, May 3

[Economy] Job Openings Exceed the Number of Available Workers by 5.6 Million – Meanwhile, the number of people quitting their jobs remains at a record level, 4.5 million last month. It’s an extraordinary labor market with the unemployment mark hovering around 3.5%, a near record, as wages continue to climb (adding, of course, to inflation).

[Abortion] Democrats Promise Abortion Rights Bill – In the wake of the leaked Supreme Court opinion, Democrats in the House and Senate vowed to create a bill that restores abortion rights – knowing full well that it can never pass the Senate with its current membership. Nor can the Democrats muster the votes to get around the filibuster. Still, such a bill seemed like a necessary policy statement.

Wednesday, May 4

[Inflation] Fed Announces Half-Point Interest Rate Rise – Although expected, the half-point increase in the federal interest rate marks an intensifying effort to fight the highest inflation rate in decades. Simultaneously the Fed is reducing its $9 trillion asset portfolio which was designed to pump money into the economy during the coronavirus pandemic.

Thursday, May 5                                                              

[Ukraine] Russia Increases Attacks on Ukrainian Infrastructure – With an emphasis on railroad infrastructure, there are also reports that Russia is targeting agricultural infrastructure such as grain storage. While the attacks are definitely an increase, it should be noted that traditionally Russia increases its military activity just prior to its May 9 Victory Day celebration. The Kremlin likes to have military things to brag about during that period.

[Economy] Rising Interest Rates Spook Wall Street – The half-point rise in the federal interest rate set off another round of selling on Wall Street. The Dow Jones average fell 3.1%, NASDAQ by 5% – the biggest decline since 2020. On the other hand, employment figures remain strong with the addition of 428,000 jobs in April, down slightly from March.

[Coronavirus] FDA Restricts J&J COVID-19 Vaccine – Problems with the Johnson & Johnson vaccine arose early in the pandemic, when cases of a blood clotting disorder appeared. The occurrences were rare but apparently significant, as two years down the road the FDA has decided to restrict access to the J&J vaccine.

[Coronavirus] WHO Asserts COVID-19 Deaths Undercounted – The official figure stands at 5.4 million, but the number of excess deaths during 2020 – 2021 (deaths that occurred above the normal or expected amount for any given time period) was 14.9 million, most of which are now attributed to COVID-19.

[Biden Administration] Karine Jean-Pierre Named to Succeed Jen Psaki as White House Press Secretary – She will become the first black and openly gay Press Secretary.

Friday, May 6                                                                                                       

[Ukraine] Ukraine Military Launches First Large-Scale Counteroffensive – Designed to push Russian positions out of artillery range of Kharkiv, this is the first significant counter-offensive campaign of the war. The larger picture goal seems to be pushing Northeast to break up Russian supply lines from Moscow to the Donbas region.       

[Coronavirus] U.S. Coronavirus Totals: Cases: 83,536,564; Deaths: 1,024,438

Politics, Legislation, Election Notes

The sudden appearance of a leaked Supreme Court abortion draft opinion has fostered a couple of interesting questions about the upcoming midterms. For one thing, Republicans are jumping on the notion that they can push the scandal of a leaked Supreme Court document beyond the reaction to the actual content of the opinion. Of course, this is a classic distraction tactic; but the interesting point here is that Republicans not only are signaling but saying that they don’t want the abortion ruling to become an issue – it’s that unpopular with the majority of voters. On the other hand, Democrats are being urged to take advantage of the extra time to highlight the issue, which belies the fact that many people do not have confidence in the Democrats’ ability to prevent the draft from becoming law. The other big question is: What will be the impact on the midterms? Can the Democrats successfully use protection of abortion rights and rejection of the Big Lie as effective litmus tests for candidates? Of course, the actual ruling doesn’t appear for a couple of months, and a lot of things can happen on the abortion issue between now and November.

Pinned Point: Until the filibuster rules are modified, most of the Biden agenda will not pass the Senate.

Quote of the Week

But if a half-century of progress toward a more equal society, painstakingly achieved across many fronts by many actors, can be so easily jettisoned with the wave of a few judicial hands, the problem to worry about isn’t the court’s. It’s democracy’s. It’s ours.

Linda Greenhouse, “Justice Alito’s Invisible Women,” The New York Times, 5/5/2022.

 

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