The Supremes

Polarizing the Nation

The Supreme Court did it again. With the decision in Webster v Missouri the Supreme Court has managed to polarize the nation. From the reactions in the newspapers and on radio and television it seems that the polarization is deep and will be lasting.

The nation has been on a long road of recovery from slavery and from discrimination against women and minorities and the Supreme Court seems to be driving the bus off the road. Taken together the decisions against equity in race relations and discrimination and sharing the regulation of abortion with the States seems to have set the Court in a time capsule. It is as though the Taney Court was sitting and had just handed down the Dred Scott decision.

Dred Scott was a slave. The time was before the Civil War. Dred Scott's master moved him to a free state. The question was, was Dred Scott a free man in a free state. Chief Justice Taney's answer was that since Dred Scott was property, a chattel slave, moving to a free state could not free him. In fact he was later sold and inherited before he did gain his freedom. Chief Justice Charles Evans Hughes described Dred Scott as the Supreme Courts first self-inflicted wound. The reversal of Roe v Wade would be the second.

Rights as Property

In the discrimination cases the majority of the Court seems to have substituted property values for human values. In holding that the 1861 Civil Rights Act barring discrimination in contracting applied only to the contract and not to activities after the contract (racial harassment), the majority of the Court was holding strictly to the property value of the contract. When the Court held that in an affirmative action settlement that those of the majority race not a party to the settlement could sue to regain their rights, the Court was implying that a thing of value was lost i.e. property and suit could be brought to regain it. This was the case in several public service occupations (Police and Firemen) where chronic discrimination in hiring and promotion was blatant. The Court held that white officers could sue to regain any rights they may have lost in negotiated settlements allowing preferential hiring and promotion of blacks. Again the Court is treating the matter as property, not as rights. The white officers lost a thing (res) of value and had the right to recover it.

Property is Alienable

The ownership of property is not an unalienable right. Ask any Indian about the alienation of property. The United States Government as the trustee of Indian lands alienated hundreds of millions of acres of Indian lands much of it quite shamefully. The Fifth Amendment to the Constitution specifically permits taking of property as long as just compensation is received for the property taken. Eminent domain is a well recognized principle of government and it has been used quite brutally in some instances to obtain property rights.

The Supreme Court of Claims

What the Court is doing is upholding the alienable right to property above the unalienable rights to ecological equity. Quite a paradox. The Court is established with justices appointed for life to take them out of the pressures of the monied and propertied world in order to allow them to ponder and protect the natural rights of citizen sovereigns and they act like a Court of Claims trying to adjust compensation for property losses. The Reagan majority might profit from a reading of Statute-at Large #1 — the Declaration of Independence — and check the part that says why governments are formed.

Ah Sweet Mystery of Life

The abortion issue has to be the most divisive issue in American affairs since the Civil War. It not only pits religious and political groups against each other, it is patriarchal society dictating strictures on women's reproductive freedom.

IdT holds that privacy is an unalienable right. Reproductive freedom is exercised in private. Men have reproductive freedom. There are no real strictures on men's activities. Women may not have available to them the same freedom as men, but whatever freedom they have it is still practiced under the unalienable right to privacy.

Eroding Human Rights

The Supreme Court is alienating women's right to privacy to recognize the State's rights in the foetus. What possible right can the State have in a foetus until it is viable away from the womb and can assume the role of the citizen sovereign? Does the State have a right in the ovaries and the ova? If so the State should have a right in the spermatozoa. Until viability the matter of the foetus is a private matter between the woman and her doctor. When the possibility of survival outside the womb occurs the State has obligations to the citizen sovereign, not rights or a possessory interest. It is the citizen sovereign that has rights and they are unalienable. The State has obligations. The obligations of the State may take the form of loco in parentis if the child has no other parents. It may take the form of protective custody and it certainly takes the form of the unalienable rights. Within understandable guidelines of viability, the woman's right to privacy and reproductive freedom are paramount and it is these rights the Court is eroding.

The Prime Directive

By remanding the right to regulate aspects of abortion to the several States the Court violated the Prime Directive chiseled on their building. They made it impossible for the women of the United States to get equal justice before the law. Equal protection of the law is not possible under fifty subordinate jurisdictions and what the Court in effect did was abrogate its Constitutional duty to be the protector of the equal protection function. For the purposes of abortion we might as well be under the Articles of the Confederation.

State Jurisdiction: Separate but Equal

Chief Justice Rehnquist argued as a law clerk that separate but equal was an acceptable doctrine. Its obvious the Court believes the States can provide the equal protection required by the Constitution which has put the equal protection concept on its head. If Roe v Wade is reversed which it may well be, the penalties for performing abortions may range from nothing, in a hand full of States which permit abortion along the present guidelines, to felony convictions in States that will prohibit it. Some equality. We should be eternally grateful this majority was not sitting on the Court when Brown v School Board of Topeka Kansas was decided. But who knows if Rehnquist lives long enough....

A Vexing Question

The question of when life begins is vexatious for trained biologists. Human life began about 2 1/2 to 3 1/2 million years ago, probably in an ancestor common both to Austrolopithicus spp, and Homo sapiens. And, of course, life had been going on in lesser but related forms for the previous 2 1/2 billion years. There can be no life without previous life. Life has been an unbroken chain from the beginning to the present. To say that life of a human being begins with a fertilized egg denies other ways of human reproduction. Parthenogenetic birth occurs in humans. No egg is fertilized. An oocyte grows up to be a human being without the benefit or the necessity of fertilization. The off spring are female, the same sex as the mother.

Totipotency

Totipotency is a concept and a process that has to be considered. In lower life forms any cell can grow into a new individual. (Toti- = all, potency = power; all have the power to grow up). In many higher forms individuals that are rent asunder can regenerate. In some cases all the rent parts can grow up, as in Planaria, in others such as the Earthworm only the part with the brain regenerates. The healing of wounds in humans is regeneration. New nerve tissue will regenerate after wounds as will blood vessels. In plants the cells of the leaves can be teased apart enzymatically and all the cells — thousands of them — can be nurtured to maturity. Human cells can be cultured and one day organ culture will be a reality. Body organs will be grown for transplants.

The Social Factor

Even when one considers the viability problem and it is extremely important, there is more to becoming a human being than surviving outside the womb after 20 to 24 weeks or however long it takes the lungs to become functional. The 12th Century Holy Roman Emperor Frederick Barbarossa wanted to know what language children raised in isolation would speak. They spoke no language. It was a cruel experiment but then human life was cheap since in many cases people cost less than horses. It not possible to conceive of human beings taking their part in society except through the socializing effect of the society today. The great conundrum of our existence is why an advanced society such as the United States should have the homeless, the poor, the addict ridden neighborhood with drug lords making millions from people who have to steal to get the money, rampant privitation and want, poor health, and degrading poisonous environments. If we would get back to basics and pay attention to the unalienable rights and especially the unalienable rights of women, children, the racially and mentally disadvantaged we could begin to understand the problems of our society and begin to mend it.

A Question of Time

The folly of the abortion decision and the ones that may follow is that they are moot. Technology has overtaken the abortion issue in the form of a combined contraceptive, abortifactant, RU-486 produced by the French pharmaceutical firm of Roussell-Uclaf, a subsidiary of the giant German pharmaceutical firm of Hoechst. The pill is easy to manufacture in quantity. It is cheap. It is effective. What the pill does is resets and restarts the menstrual cycle in women. Women with irregular periods and women with delayed periods can simply take the pills and the menstrual cycle is restarted. Whether a mild physiological disorder was corrected, contraception effected or an abortion performed will not be known since in all cases the restarting of the menstrual cycle will accomplish all three.

Anti-abortion forces in France intimidated the pharmaceutical company to withdraw the product from the market, but the French Minister of Health ordered the company to make the product available saying that the product was the moral property of women. RU-486 has made the entire abortion issue moot. It is now a question of women's unalienable right to education that will determine the exercise of their reproductive freedoms.

The Supreme Court could spend some time reflecting on our unalienable rights and what they as their defenders could do to see that they are not infringed.

. . . Ted Sudia . . .

© Copyright 1989
Institute for domestic Tranquility