Prohibition, Abortion and The Bad Court

Two items in the news demand more attention today:

The first item is the leaked memo indicating that five members of the sitting Supreme Court of the United States are on record favoring the reversal of Roe v. Wade, the 1973 decision that made abortion legal in the United States.

The second item is the leaked memo itself, which bodes ill for the sanctity of the Supreme Court itself, raising questions about how the Court can function in the current mass communications environment. Maybe…just maybe…secrecy itself is a thing of the past.


First of all, I am a very strong supporter of the absolute right to abortion and have been since I served as a press agent for abortion advocate Bill Baird in the early 1970s, and I make no bones about calling myself a pro-abortionist because Bill Baird didn’t make any bones about it either.

Secondly, the reason why there is no GREAT upsurge of public disgust against the evangelical insanity and Republican complicity in the re-installation and of this absolutely evil, medieval, and archaic stricture IS THAT MORE THAN HALF OF THE AMERICAN ELECTORATE WEREN’T EVEN BORN WHEN ABORTION WAS ILLEGAL SO THEY HAVE NO IDEA WHAT KINDS OF DISGUSTING TRAGEDIES TRANSPIRED FROM ANTI-ABORTION LAWS.

Anyone who is less than 49 years old has never lived in a country where abortion was illegal, never had to raise money to help a sister travel to MEXICO or PUERTO RICO to obtain a safe, legal abortion, and never had to take that terrible journey herself.

Thirdly, I am in absolute agreement with the assholes on the current Supreme Court. Roe v. Wade was perhaps the single most egregious example of judicial overreach in the history of the Republic.

The fact that I agreed with the decision in no way contradicts the fact that the Warren Burger Court overstepped the boundary between judicial and legislative prerogatives.  

The Court’s liberal and moderate contingents, then consisting of Warren Burger, William O. Douglas, William  J. Brennan,  Potter  Stewart, Thurgood Marshall,  and Lewis F. Powell, knew full well that a constitutional amendment making abortion legal would never pass…so they did the next best thing, which was also the worst possible thing, by attempting to legislate morality through judicial action.

The fact that Roe has stood the test of time so well testifies to the historical fact that, until a disgraced president packed the court with three justices who would never have been allowed in the visitor’s gallery before his tenure, the justices who served before them absolutely knew that Roe v. Wade was constitutionally unsupportable but allowed it to stand anyway because they were humane human beings who understood the kinds of human suffering that would have resulting from overturning Roe v. Wade.

Fourth, we have only ourselves to blame for falling into this contretemps because we didn’t force a law through Congress legitimizing the legality of abortion when we had the votes to do that.


Now, Congress must act. Congress must pass a law protecting a woman’s right to choose not to have a child.

It will be a pyrrhic victory, however, because this disgusting excuse for a Supreme Court will promptly declare that law unconstitutional on some pretext that skirts the fake religious issues at the heart of the abortion debate.

We all know that we do not have the votes to pass a constitutional amendment protecting a woman’s right to choose whether or not to bear a child…and we will never have enough votes to pass that amendment as long as the Republican party controls as few as 14 states.

At present, however, neither party has anywhere near the number of votes required to propose an amendment.  Some 292 votes are required to propose an amendment in the House, but the Democrats only hold  224 seats in that body, while the Republicans hold 211.   An additional 67 votes are required in the Senate, where the two parties are evenly split at 50/50.

Therefore, it is simply not possible for either party to propose a constitutional amendment in Congress.  This still leaves open the distant possibility that two-thirds (or  34 out of 50)  of the state legislatures might petition Congress to authorize a Constitutional Convention to draft proposed amendments, at which point two-thirds of the states would be able to propose one or more amendments.

This part of the amendment process was one of the worst thought-out statutes in the Constitution, fraught with tripwires and time bombs that could result in the breakdown of the Republic because it is not clear how such a Constitutional Convention would arrive at its decisions since Congress must mandate whether the Conventions deliberations will be decided by the state legislatures or by state constitutional conventions and Congress doesn’t have the ability to do that in the current division of power.

The Republican party currently controls 23 state legislatures, meaning that they hold both houses of the state legislature and the governor’s office. (The governors are, however, irrelevant in the amendment process.) The Democratic Party currently controls 13 states. The remaining 14 states are divided and therefore constitute “no votes” on the amendment process.

The political division of the state legislatures is a decidedly mixed blessing. The good news is that the Republicans have NEVER been able to propose or pass amendments with bilateral support from the Democratic party. The bad news, from my perspective, is that the Democratic party, in turn, has only had that capacity for a total of four years since the founding of the Republic, two years during the (Franklin) Roosevelt Administration and two years during the (Lyndon) Johnson Administration.

This political stalemate with respect to the constitutional amendment process will really blow up in our faces because it only takes a simple majority in both houses of Congress to mandate the state constitutional convention process…but there is very little guidance in the Constitution or case law that establishes how the state conventions are to be organized, populated or make decisions.

Obviously, the state legislatures would have to make those determinations but there are no brakes upon a runaway legislature declaring itself the state convention or setting up a partisan appointment process stacking the deck in favor of – or against – the passage of a particular amendment. They might even attempt to populate the convention through a popular poll…but the Court has already held statewide polling in violation of the amendment process.

The one and only time that the convention method was used to pass an amendment was during the passage of the 21st Amendment, which repealed the 18th Amendment, the one that created the nightmare of Prohibition.

In that one case, the people rose up against the central government to pass the repeal, and Congress cooperated by allowing the state conventions to consider the amendment because a majority of the incumbents in the state legislatures had themselves run on the Prohibition platform and were still married to that insane policy.

The convention process circumvented the legislative process and, therefore, making it unnecessary for pro-Prohibition legislators to turn their coats in order to vote for a measure that almost everyone – except the bootleggers themselves – wanted.

It isn’t difficult to imagine the chaos that might very well ensue during an attempt to pass either a pro-abotion or an anti-abortion amendment through the state convention process….which brings us back to the Supreme Court fiasco.


The Supreme Court of the United States should not exist in its current form. There is no justifiable excuse for lifetime appointments to the Court and many logical arguments against them.

Together, any five Justices have more direct power over these United States than the president or anyone else in either the legislative or the executive branches of the government.

We are now faced with the dilemma of The Bad Court, which is how I think historians – if there are any – will summarize their feelings about what I also think will become known as The Gorsuch Court (because  he appears to be the leader of the band.)

Given the enormous powers we have invested in the Supreme Court, we – collectively – have an expectation of objectivity…because we Americans are quite delusional about our system of government.

The Court has always been a tool of partisan interests. For many years, the Court actively supported slavery.  Then, for a few years, the Court supported Reconstruction.  For several decades, the Court aided and abetted the suppression of the Union movement while endorsing idiotic anti-communist agendas. During FDR’s administration, the Court fought Roosevelt tooth and nail, trying to undercut his liberal agenda. From  1954 to 1986, the Court took a sudden left-hand turn and began supporting more liberal agendas, a pattern that persisted through the Warren and Burger courts. That ended when Ronald Reagan saddled us with the Rehnquist court from 1986 to 2005.

The unprecedented leak of a private memo stipulating the opinion of a majority of the Justices on the repeal of Roe v. Wade just put paid to the illusion that the Supreme Court of the United States is in any way an objective institution. In fact, it is now a tool of the Republican party…and there is going to be hell to pay because of that one fact.


There is a clear analogy between the Prohibition Episode and the Abortion Debate.

A clear majority of the electorate were opposed to Prohibition. Unfortunately, a generation of state legislatures – and a majority of the members of Congress – sold their souls to the Prohibition Movement in exchange for their votes.

Similarly, according to numerous polls, a clear majority of the electorate supports a woman’s right to choose whether to bear a child but almost all of the Republican officeholders on both the state and federal levels are married to the prohibition of abortion as a litmus test of their authenticity. This puts the Republican party up against two generations of more or less sexually active (and according to many reports, more less than more) voters, who favor choice over control.

In both cases, an evangelical movement with close ties to conservative political movements foisted their beliefs upon the electorate. In both cases, those favoring the prohibitions were a small minority of the total electorate.

In the case of the Prohibition Episode, there is ample documentary evidence that alcoholism and alcoholism-related crimes shot up dramatically during the Prohibition period. There is also evidence that Repeal also triggered the beginning of the 90-year-long heroin epidemic in the United States, as the bootleggers turned to heroin in order to maintain their cash flows, so we were damned if we did and damned if we didn’t.

When – and it isn’t even if at all – Roe V. Wade is overturned, the abortion landscape will turn into a free-for-all, with each state free to chart its own course through the minefield of abortion-related issues.

Some 13 states will almost immediately outlaw abortion. Some states, such as Texas has already done, will attempt to make it a crime for women in Texas to cross state lines to obtain a safe, legal abortion. In the end, we will end up with around half the states permitting abortion with the other half banning it.

Make no mistake about it, however. The abortion conversation is actually the States Rights conversation all over again. This isn’t a debate over your freedom of choice. It is a debate about the rights of the state legislatures to control the lives of the citizens living in their states…even when they leave those states to seek the help they need elsewhere.

The abortion decision is the nose of the states’ rights camel sneaking its way into the tent of the democratic republic because, after the abortion issue is decided, the next issue on the chopping block will be the repeal of the Equal Housing Act of 1968, followed by the Medicare Act of 1965 and the Civil Rights Act of 1964, as the reactionary forces that are tearing this country apart start slicing and dicing Lyndon Johnson’s Great Society.

The witch hunt will continue until the forces of repression finally get around to dismantling the Social Security Act of 1935, which has always been the crown jewel in the Reactionary Right’s shopping list for deconstructing the America that Roosevelt, Truman, Johnson, and Obama created for us.

 Welcome to the future, if you can stand it.