Justice Alito, Abortion Rights, and the "Republican-Christian Alliance Party's 'Morality Amendment' "

"Either this nation shall kill racism, or racism shall kill this nation." S. Jonas (Aug., 2018)

Ruth Bader Ginsburg at her confirmation hearing. If she had survived a few more weeks, history would have been different.
(Image by Wikipedia (commons.wikimedia.org), Author: R. Michael Jenkins)   Details   Source   DMCA

Introduction

In his Draft Majority Opinion for "Dobbs v. Jackson Women's Health Organization et al" Justice Samuel Alito argues for reversing Roe V. Wade in part on the grounds that the words "abortion" and "right to an abortion" are not in the Constitution. One might note that, for example, neither are the words "automobile" or "airplane," yet both are subject to governmental regulation at both the Federal and state levels. But a discussion of that fact is not my purpose here.

In the real world, the anti-abortion-rights movement in general almost invariably bases its argument(s) on the concept that "life begins at the moment of conception," and therefore, using the word "abortion," that "abortion is murder." Now, it just happens that the "life begins at the moment of conception" concept is an entirely religious one, based either on a Papal Dictum or one or more interpretations of one or more English translations of the Bible.

However, interestingly enough, it does happen that the word "religion" does appear, in the First Amendment: "Congress shall make no law respecting an establishment of religion, or pro­hibiting the free exercise thereof;." Therefore, it can be argued (as I have done on numerous occasions) that any statute, state or Federal would violate what is generally known as the Establishment Clause.  (And if "Roe" is reversed, as Sen. McConnell has told us national abortion illegalization is coming, folks, as soon as the Repubs. take back both Houses of Congress and the Presidency.)

Furthermore, if the claim were to be made that the concept "life begins at the moment of conception" is not religious, but rather a matter of "I think" or "I claim" or "I postulate," then it becomes a matter of free speech, for both the pro-abortion-rights side and the anti-abortion-rights side. The relationship between free speech and the Federal government just happens to be covered by the next clause of the First Amendment: "Congress shall make no law . . . abridging the freedom of speech."

In 1996 I published a book entitled "The Fifteen Percent Solution: A Political History of American Fascism, 2001-2022." The current, third version is entitled "The 15% Solution: How the Republican Religious Right Took Control of the U.S. 1981-2022. The book is a fictional future history of the United States (which becomes an apartheid state, the "New American Republics"), fictionally published in the year 2048 of the 25th anniversary of the conclusion of the Second Civil War and the Restoration of Constitutional Democracy in the United States.

Among other things I projected in that in 2005 the 31st Amendment to the Constitution, known as "The Morality Amendment" would be passed by the Congress then under the complete control of the successor to the Republican Party, "The Republican Christian Alliance" (see chap. 6 of the book). (By that year, by the way, the power of the Supreme Court to review the actions of the two other branches of the government had been overturned by [the fictional] Chief Justice Steps [Scalia, get it?] in a case entitled "Anderson v. Bd. Of Education" (reproduced on OpEdNews.com). That case reversed the famous decision written by Chief Justice John Marshall in "Marbury v. Madison," which created the whole concept of Judicial Review out of whole cloth (as I explain in the referenced column above).

In this column, I present portions of another chapter from my book, this one describing and analyzing "The Morality Amendment," (fictionally) enacted in 2005. In terms of abortion rights, it would have fictionally achieved what the Republican Majority on the Court will soon be achieving in real life.

Chapter Seven - 2005: The Morality Amendment (31st)

The 31st Amendment to the Constitu­tion of the United States (2005):

Section 1. Life begins at the moment of conception; the un­born child has a fundamental individual right to life which can­not be infringed upon by any per­son, or public or private agency or or­gani­za­tion; the fifth and four­teenth amendments to this Con­stitution ap­ply equally to all per­sons, born and un­born; any artificial interfer­ence with unborn life is murder.

Section 2. No educational institution may teach any approach to any as­pect of human sexuality, outside of mar­riage, other than ab­stinence.

Section 3. Engaging in sexual relations with persons of the same sex is a matter of choice; no provision of this Constitution may be deemed to pro­vide preferential status in the civil or criminal law at the Feder­al, state, or local level to any person or group of per­sons based on their chosen sexual preference.

Section 4. Neither the Federal government nor any state or local govern­ment may make any provision for support, finan­cial or other­wise, of per­sons not supporting themselves, outside of an institution expressly provided for that purpose.

Section 5. The 16th Amendment is repealed. Within five years of ratifi­cation of this Amendment, Congress is required to re­peal any and all stat­utes providing for the levy of either indi­vid­ual or corpo­rate income taxes.

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[An "Author's Commentary" from the book appears just below (that is, to repeat, it is by the fictional author of this fictional history book, fictionally published in the year 2048, on the 25th anniversary of the Restoration of Constitutional Democracy in the United States, at the conclusion of the (maybe not fictional) Second Civil War.]

[From the real author, Steven Jonas, MD, MPH, the book was really written in 1994-95 with the first version really published in 1996. The story did not change between the first version and the third, currently available one, published in 2013. Certain introductory and end-notes did.]

By Jonathan Westminster

Although the changes made in the national eth­ic by the 31st Amend­ment to the Constitution of the United States were nothing short of rev­olu­tion­ary, their eventual adoption, given the electoral success of "The 15% Solution." ["The 15% Solution" was a real, historical voter suppression scheme originally developed by a real organization known as the "Christian Coalition and first published in 1989.] That should have come as no surprise to anyone. For exam­ple, in one form or another, as noted, most of the concepts embodied in it, as well as a good deal of the specific language had appeared in the 1992 Republican Party Platform.

The 31st Amendment speaks volumes about the nature, thoughts, and goals of those who governed both the old U.S. and its successor state the New American Republics [the "NAR" was a quadri-partite apartheid state: White, Black, Red, and Yellow] for most of the time from the beginning of the Transition Era (1981-2001) through the end of the Fascist Peri­od. With the 32nd (Balancing) and 33rd (Suprem­acy) Amend­ments, the 31st formed a "triple"play" that had as much impact on the develop­ment of the nation subsequent to their adoption as the 13th (outlawing slavery), 14th (extending the due pro­cess guarantees of the 5th Amendment to the states), and 15th (vot­ing rights for former slaves) Amendments had had in their time follow­ing the end of the First Civil War. Volumes have been written on the origins, implementation, and outcomes of the 31st Amendment alone. Offered here are a few comments on certain aspects of the Amendment that appear to be particularly impor­tant.

The Failure of the Religious Message

The 31st Amendment is primarily about certain content mat­ters of per­son­al thought and conduct that the Reli­gious Right con­sidered to be within the pur­view of reli­gion, that is hu­man sexuality. Given that content, is fasci­nating that Right-Wing Reac­tion also "threw in" to the Amendment the ban­ning of any non"institutional "welfare" pay­ments and repeal of the income tax. The given rationale for so do­ing was that both the provi­sion of "welfare" out­side of institutions for the "truly destitute" and the in­come tax were both "im­moral" and so be­longed with the other "mo­rality" ele­ments of the Amendment.

Some historians believe that the Right-Wing Reactionaries were simply in a big hurry to get their highest tax and fiscal priorities through the Con­stitu­tional Amendment process, and so chose the "tack"on" method of doing so. Certainly, as did the Rev. Pat Robert­son in his speech to the 1992 Republican National Convention, so this Amendment gave almost equal time to both the Religious Right's ver­sion of "God's word" and tax matters.

The Religious Right always considered the matter of what consti­tutes appropriate sexual conduct for human beings a religious issue, not one of personal belief and predilection. This Amendment says in very bold type that the Religious Right in the United States simply failed, and failed mis­erably, to get its message on sexual conduct across to the American peo­ple, and by so doing induce desired behavior changes.

The 31st Amendment was adopted about 35 years after the time of the so"called "sexual revolution" of the 60s and the Roe v. Wade deci­sion of the Supreme Court (1973). During that period, the Religious Right, of both the Fundamentalist and Catholic varieties, had been thundering one message on sexual conduct and its outcomes at the American peo­ple:

" Life begins at the moment of conception.

" Once pregnant, a woman has no say in the matter of what hap­pens to the pregnancy.

" Elective termination of pregnancy even before the time of fetal via­bili­ty is murder.

" Pre-marital sexual relations consti­tute a sin.

" Sex education other than that which teaches abstinence be­fore mar­riage is inherently evil.

" Having sexual relations with a per­son of the same sex is one of the worst sins imaginable.”

And the given rationale for all of these positions? They should be ad­hered to either because certain sections of that book known as the Bible says so or because "the Church's teachings" (according to the Pope in Rome) say so.

During the Transition Era, Americans reported themselves as highly reli­gious, Bible"believing, heavily Christian, and regularly church"going (Ostling). Indeed, the country was covered with tens of thousands of churches of all religious denominations, but mostly Christian. In many, although certainly not all of them, the message preached was the one sum­marized above.

Especially since the late 1980s, with the explosion of Right-Wing Re­actionary political and religious radio programming across the coun­try, this particular version of the message had been thundered at the American people 24 hours a day, 7 days a week. And it had had little impact on behavior. It was a "lousy sell," as say in the retailing busi­ness.

Some Americans followed the precepts, of course. But in most cases where they did, it was not because as adults they had first prac­ticed one way and then had been persuaded to change their minds. Rather it was because they had been religiously trained in that way of thinking from childhood. But most people who had not been so reli­giously trained sim­ply did not accept the arguments of the Religious Right on sexual behavior or the rights of women or personal morali­ty/responsibility or when life begins.

The Religious Right failed at salesmanship, they failed at persua­sion, they failed at education. For example, the Catholic Church taught that both the use of artificial birth control methods and divorce were sins the commission of which required that the committer be cut off from any official Church relationships and functions (a process called "ex-communication"). Yet millions of American Catholics routinely ig­nored Church teachings on both matters. Even elective termination of pregnancy was known to be fairly widely practiced among Catholics.

But even though the Church could not convince its own members to follow its "moral" teachings in all cases, it still wanted to use the force of law in an attempt to force everyone to do so. In thus turn­ing to the law, and the criminal law at that, in an attempt to achieve what it could not achieve through education, persuasion, and/or preach­ing, both the Catholic Church and the Right-Wing Fundamentalist churches revealed the fundamental weakness of their theological mes­sage. But their political message was clear: "If we cannot get what we want through the power of preaching and persuasion, we are going to get it through the power of the law."

In the late Transition Era [1981-2001], when the Religious Right was not able to have freedom of choice in the outcome of pregnancy criminalized by means of the democratic process, some of its members held that they were justi­fied in com­mitting crimes themselves, including murder, to enforce their point of view. For example, consider the "Defensive Action Decla­ration" (yofgod.com/defense.html):

"We, the undersigned, declare the justice of taking all godly ac­tion neces­sary to defend innocent human life including the use of force. We pro­claim that whatever force is legitimate to de­fend the life of a born child is legitimate to defend the life of an un­born child. We assert that if Mi­chael Griffin did in fact kill [Dr.] David Gunn, his use of lethal force was justi­fiable provid­ed it was carried out for the pur­pose of defending the lives of unborn children. Therefore, he ought to be acquitted of the charg­es against him."

But now, with a Congress and the requisite number of State legisla­tures dominated by representatives of the Religious Right, elected by a distinct mi­nority of the eligible voters, a philosophy and ideology that the American people could not be persuaded to adopt voluntarily was im­posed upon them. Those who would have used criminal means to achieve their goals now had the force of law on their side. "The 15% Solution" had struck again.

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References:

Holmes, S.A., "The Boom in Jails Is Locking Up Lot of Loot," New York Times, News of the Week in Review, Nov. 6, 1994.

Ostling, R.N., "The Church Search," Time, April 5, 1993, p. 44.

Right-Wing Watch, Vol. 3, No. 3, Dec. 1992.