Post-Roe Thoughts...Especially for my Progressive Friends

 

Until this week, Roe v. Wade was one of the most poorly reasoned, and poorly written decisions in American jurisprudence.

 I am not commenting on the outcome – the constitutional right to an abortion “up to some vague point,” but to the legal reasoning behind it.  The majority in this 7-2 decision was actually split four ways, with one ‘majority’ opinion and three concurring opinions.  They all disagreed as to the reasoning behind their decision, and one even doubted that the decision meant what it said. On a personal note – and I will come back to this – only Justice William O. Douglas, whose one-man concurrence insisted that the court find an inherent 9^th Amendment Right to Privacy, made constitutional and historical sense.  Unfortunately, he was just one among nine, and his reasoning was not adopted.  Instead, the Court ran with an esoteric “equal protection” and “due process” jargon with little precedence to support it.  We were poorer then for it, and even poorer now. 

That Roe was a disaster from the start was recognized by most honest liberal jurists.  When it was revisited in Casey v Planned Parenthood, the majority gutted Roe’s baseless assertions that the US Constitution provided different solutions for different trimesters of pregnancy, and narrowed the decision to recognizing fetal viability as a dividing line. Even The Notorious Ruth Bader Ginsberg criticized the reasoning behind Roe, even late in her life, while on the bench.

I have said for years that while I am pro-choice, Roe was such a poor decision that it would be – and should be – overturned.  Liberal friends who look only at results and not legal process  just dismissed me as “impure” on the issue.  Well, friends, the inevitable is now upon us.

If Roe was a poor decision, Dobbs vs. Jackson W.H.O. is even worse.

The initial criticism of Roe in the opinion is valid.  The subsequent invalidation of any right to privacy is an unmitigated disaster.

The entire Bill of Rights of the Constitution is based on privacy rights as against the government.  The Freedom of religion, the prohibitions against warrantless searches and seizures, the arcane 3^rd amendment prohibiting quartering of troops in one’s home – are all based in the notion of *privacy.*  Several critical Supreme Court decisions have noted this – such as in the 1971 (pre-Roe) Wisconsin v. Yoder, which gave Amish parents the Constitutional right to home educate their children. It was hinted at in Griswold v Connecticut (1965), a birth control access case, and again in Loving v. Virginia (1967) (Interracial marriage).

But Roe (1973) said these “privacy rights” were not a 9^th Amendment Right, but somehow connected to general liberty interests in the equal protection and/or due process clauses.  And now that Roe is toast, so is everything else.

So how do we react?

Forgive my brutal response: If the last few days of social media reactions are any indication of the future, progressives will make the same mistake they make in every election cycle, and then wonder why they lose time and time again: they will shoot every potential ally with strident, nasty, interest-group politics.

A scroll through my feeds shows the same ‘flavor’ memes over and over:

"It’s the damned Men."  “If men could get pregnant,” “If men had to pay,” “If men had vasectomies…”

Men are not the Enemy here, folks.  In fact, according to a 2022 Pew Research survey, men support abortion rights at nearly the same rate as women.

"It’s the damned churches!" “Tax the churches!,” “Abort churches,” “We’re not a Theocracy!” the aggrieved snarl.

However, the same Pew poll found that the *majority* of Mainline Protestants, Black churches, Catholics, and Orthodox *support* abortion rights.  Only Evangelicals oppose them. We often forget that the entire 1960s civil rights movement was organized *in churches.* The same-sex marriage legislative movement was spearheaded by the Episcopal Church in numerous states, including New Hampshire, one of the first to legalize same-sex ceremonies.

Nancy Pelosi took *no time* at all ‘marrying’ the horror of the Court’s anti-choice decision with its position striking down New York’s clearly unconstitutional gun laws.   Guess what Nancy – there are millions of Americans who are pro-2^nd Amendment AND pro-choice.

Progressives, listen up:  I AGREE with you that we need to fight to secure reproductive rights.  I’d also like to see us fight for Privacy rights across the board.

 But you don’t make allies by directing your vitriol against men, or churches, or gun-rights activists, or any other “impure” illiberal group into which you decide to pigeon-hole people.  Politics is a not a forum where you win by systematically pissing off those who are, or could be, allies, because you only see them as “parts of a group” rather than as unique, rational, thinking individuals.

Now is the time to THINK, my friends…not a time to show the world that you hate everyone and everything who doesn’t agree with you 100% on a laundry list of litmus tests.

Somewhere is a young, white, gun-owning, church-going blue collar male who just paid for his girlfriend’s abortion.  He’s grateful that chapter is behind them, as is she.  He should be your ally.  But through interest group politics and strident, demeaning attacks on anyone in a “group” you perceive as an enemy, you have effectively neutered him as an active ally.

Congratulations.

 

Uvalde, the "Incident Command System," and the American Deference to "Authority."

So this post is a direct response to the horror in Uvalde.  It has nothing to do with guns. 

It has to do with the soul of America since 9/11.  

After 9/11, there was a serious effort at the federal level to design a 'system' to respond to tragedies, of any variety: dam breaks, hurricanes, mass shootings, attacks using airplanes - you name it.  As with most federal 'systems,' it was borne of an honest and well-meaning desire to "make things better," in the wake of the chaos on the ground after the attacks on the World Trade Center. For those of you unfamiliar with the system that emerged from that effort, it is called "Incident Command Management System."  It is a system that has been implemented nationwide.  If you are a police officer, fire fighter, local civil defense manager, national guardsman, red cross worker, or in any way considered a Responder, you have been through this training.  I received mine as a member of the US Coast Guard Auxiliary.

The idea of ICM is to designate "who's in charge," and what the action priorities should be in a given incident. The events, as they unfolded (or didn't) in Uvalde is a direct result of this system.

A primary focus of ICM is to designate a lead agency as "in charge" of a local incident. This means that all other agencies who arrive to assist at an emergency take their orders from the lead agency.  In Uvalde, the lead agency was the local policing authority.  Why did SWAT teams and first responders in Uvalde stand around doing nothing for an hour?  Because they took their orders from the lead agency. They followed ICM protocols - until they finally broke ranks and entered the school.

Another focus of ICM is the prioritization of response.  In the ICM hierarchy, *containing the problem* takes precedence over *assisting the victims.*  In other words, in a hurricane where live wires are down, getting them shut off takes precedence over helping those on the scene who have been electrocuted.  In a situation of a failing dam, preventing further collapse takes precedence over rescuing those trapped under water.  In a school shooting, containing the shooter takes precedence over rendering aid to the wounded or endangered.

With that in mind, can you see how Uvalde unfolded?

There is a third priority, one that is more problematic than the first two.  And that is the absolute prohibition on what is called "Self-Deployment."  Self-deployment refers to individuals simply doing *what needs to be done* at that moment.  NO ONE is permitted to "self-deploy;" an EMT (or any ordinary citizen) who is capable of rendering aid to a victim is *prohibited* from doing so unless they have received specific orders from the Lead Agency chain of command to do so.

Parents who were ready and willing to storm the school were prevented from doing so by the police.  Why?  *NO SELF-DEPLOYMENT.*  The real heartbreak here is that we, the American public, actually conform to the orders issued by The State, time and time again.  The parents who *did* ignore orders and rescued their own kids at the school engaged in precisely the behavior that we ALL need to engage in.  

Putting the gun issue aside, the question here is the official response (or lack of it) and how it happened the way it did.

It happened *precisely* the way it is designed. Good, anguished, law-abiding parents questioned it, but ultimately conformed.

That conformity must END.  The worship of the state must END.  The blind belief in "authority" must END.