A different kind of homeland security
The American battle over its family values
It is as if the US was looking to prove just how much freedom it has to go about its work as a world power. At the same time that the American state is carrying out a proxy war in Europe and bringing epochal change to the global economic order, the American nation is entirely free to revolve around itself, arguing bitterly about just how much freedom American women have to control their own bodies. Of course, the occasion for this dispute is no small matter. After all, with its decision in “Dobbs v. Jackson Women’s Health Organization,” the Supreme Court has overturned “Roe v. Wade,” the 1973 decision guaranteeing a basic right to abortion by partially banning individual states from imposing total bans on abortion. The court’s decision has been received as a long-awaited victory by some, as a bitter defeat by others. Such a fierce and deeply divided reaction reveals that much more is at stake than just a legal relationship between a woman and her fetus. This is a battle over nothing less than the morality of the nation. And what freedom-loving Americans on both sides of the divide demonstrate is that the morality of the nation is ultimately a matter of force — something that apparently can only be settled by the use of state power.
I. Fundamentals of the American polity, or: what conservative justices can teach us about the relationship between law and morality
How citizens live is a matter to be determined not by individuals’ moral principles, but by the founding fathers and their successors in government …
The conservative majority on the Supreme Court insists that their intention was not to decide the “critical” and “profound” moral issue of abortion itself, but instead to overturn the fifty-year-old “egregiously wrong” decision made in Roe v. Wade. They aim to correct their predecessors’ equally egregious presumption that they had the authority to decide on the matter in the first place. After all, those justices presumed to recognize abortion as a constitutionally guaranteed, “fundamental” — if not “absolute” — right. Their decision established a “balance” between competing rights: a women`s right to autonomy and the state’s interest in protecting a pregnant woman’s health versus the potential life of a fetus. For the current majority on the Court, the Roe decision looks “far too much like legislation,” a case of the judiciary dangerously overstepping its bounds. In the majority’s opinion, the Court should stick to answering one question and one question only: what were the intentions of the authors of the Constitution and how would a “reasonable person” have understood it at the time of adoption? This is the thought at the core of “originalism,” the judicial philosophy to which the current conservative majority on the bench subscribes. Its proponents argue that this approach protects the rule of law against the arbitrary rule of non-elected judges. This means, conversely, that when the judiciary does rule, it can claim in all modesty absolute authority for its decisions. After all, they make their rulings in the name of the infallible founding fathers, the indispensable foundation of American democracy. Seen through the eyes of originalists, abortion is a clear-cut case: because no “reasonable person” a century and a half ago would have understood the Constitution as having — implicitly or explicitly — granted the right to abortion, women today are out of luck. The legislature could use its power to establish such a right, but the Supreme Court cannot constitutionally guarantee it.
The authority to decide on this moral dilemma is thus to be returned — not to the women who actually carry “potential life,” but rather — to “the people and their elected representatives.” In other words, the other branches of state power have to step in and decide such questions for woman and fetus, which they do in the manner appropriate to a liberal democracy: they act in accordance with their own individual and political morality, and always with an eye on the competition, particularly in the run-up to elections. The result: immediately following the Dobbs decision, new bans were imposed in eighteen states, including thirteen cases of “trigger bans” — bans that were enacted before Dobbs and automatically went into effect after Roe was overturned. Shocking reports of desperate women and girls denied abortion, while not new, have become geographically more widespread. Sixteen states, on the other hand, have become abortion “safe havens,” either by strengthening abortion access for women coming from states where it is banned, by anchoring the right to abortion in their state constitutions, or by simply not tightening their abortion laws.
The issue of abortion has supercharged political divisions at the federal level, with both parties strategizing about how to exploit the issue for their own aims, both with regard to the coming midterm elections[*] and with regard to whether and how to ban — or protect — access to abortion on the federal level in the future. The Democrats used it as their electoral rallying cry, with President Biden even promising to codify the pre-Dobbs status quo, guaranteeing abortion rights on a federal level, and the press reporting about the oh-so torturous tension he feels between his Catholic faith and his liberal convictions.
Meanwhile, the Republicans have celebrated the decision as the watershed that will finally enable them to impose the restrictions, even total bans, that they have had on tap for ages — with some party strategists regretting the unfortunate timing of the decision, fearing that it may nudge too many of the all-important suburban women voters to check the wrong box on election day. Senator Lindsey Graham’s attempt to insulate the party from voter backlash by introducing a bill that would enact a federal ban on abortions at fifteen weeks ended up splitting the party and its leaders into two camps. For some, the proposal doesn’t go far enough, for others it’s too much at this crucial — pre-election — moment.
… still, truly free Americans use constitutional law to impose a conservative morality — against the oppressive liberals, who want to be allowed to do anything
Despite the conservative justices’ best efforts, no one is really fooled by their insistence that they are merely obeying the strict formal boundaries imposed on the judiciary by the democratic separation of powers: when they examine the “nation’s history and tradition” in terms of women’s right to bodily autonomy, they apply an interpretative rigor they wouldn’t dream of applying to their own favorite fundamental rights, such as religious freedom and gun control. They could be proud of their impressive creativity in interpreting the intentions of the framers of the Constitution if they were not so eager to deny that they are anything but passive conduits for their original intentions. Clearly, the conservative justices are using constitutional law as a tool to restore a very specific, traditional kind of family values, i.e., as a weapon against the constitutional guarantee upon which current, liberal family values and sexual morality largely rely. The Supreme Court justices may claim that the Dobbs decision does not affect other fundamental rights that are also based on the 14th Amendment and that are also not “deeply rooted in the Nation´s history and tradition,” but by setting a precedent, the ruling has laid the decisive legal foundation to abolish those rights as well.
For all the obvious hypocrisy of the conservative judges, originalism is nevertheless an honest and appropriate term for their aspirations. This legal philosophy grew out of conservatives’ hostility towards the liberalization of sexual morality and the diversification of family values in the United States over the last couple of decades. Its application in constitutional law is meant to facilitate a rollback of this liberalization. The issue of abortion is paradigmatic for the larger culture war that America’s conservatives are now waging on several fronts: they regard the right to abortion as embodying the fundamentally murderous character of liberalism in general, especially when it comes to the liberal demand for a right to “abortion on demand.” An aborted fetus reveals a criminal energy that threatens far more than unborn children:
“The truth is that abortion is today the bloody crossroads of American politics. It is where judicial liberation (from the Constitution), sexual liberation (from traditional mores) and women’s liberation (from natural distinctions) come together. It is the focal point for liberalism’s simultaneous assault on self-government, morals and nature. So, challenging the judicially imposed regime of abortion-on-demand is key to a conservative reformation in politics, in morals, and in beliefs. (Bill Kristol, influential conservative intellectual and political consultant, Commentary, February 1997)
Conservatives so thoroughly identify with the precepts of the Constitution that they take their subjection to the state power that decrees these precepts as a guarantee of self-government. In this same spirit, they regard the demands they make on women — essentially to produce offspring and care for the family — not as impositions, but as a way of enabling women to realize their god-given nature. To view these demands as a matter of personal choice thus amounts to rejecting the fundamental moral laws of nature. In the battle to protect the nation’s moral fiber, many conservatives regard the recent Supreme Court decision as a decisive, but not total, victory. They see it as “the end of the beginning of the end of abortion” and other liberal perversions. That amounts to a second, decisive clarification of the relationship between law and morality: the “land of the free” is not to be mistaken for a free-for-all where everyone can do whatever they like. This is not only the view of Christian fundamentalists who have never had much use for the separation of church and state. When conservatives praise individual freedom, they mean to voice their approval of their own particular, old-fashioned, morality. They view freedom as the boundless opportunity to live conservatively, to live just as “human nature” dictates.
The family has always been at the heart of American freedom. Hard working Americans find all kinds of opportunities to profess that they would be nothing without their family. Although they thereby bear witness to the myriad hardships of a free society of capitalist competition, they obviously do not mean to criticize that society, but rather to demonstrate just how indispensable the family is and to pledge their willingness to do anything and everything necessary to get ahead in precisely this competition for the sake of their families. Family makes selfish competitors honorable and the competition of their workaday life a noble endeavor. The family is the basis, reason, and form in which both individual freedom and the responsibility for a greater good get rolled into one. Family is the blood-based crossings, so to say, at which personal freedom and social duty meet. Private, self-interested competitors thus forge an intimate unity with their compatriots at all levels of the social hierarchy, thereby making the paradox of a community of competitors a lived reality. The moral demands that freedom-loving conservatives make on their peers thus evidently extends into the most intimate sphere: if the conservatives’ own family values are not universally practiced as the norm, or at least held in the highest honor, then these heroes of individual liberty no longer recognize their country as America. For it no longer reflects their individual freedom and no longer provides the universal confirmation that their way of life is the only genuinely free way of life.
That is how totalitarian things can get in a country that declares its way of life to be the expression of individual freedom par excellence. That does not, however, mean that deviant family and sexual mores are to be eradicated; good Christians love to point out how tolerant they are of sinners and how much credit they deserve for it. But that is only as long as they can be certain that sinful deviations are generally considered to be just that, deviations from a generally accepted norm. Conversely, what cannot be tolerated under any circumstance is a liberal regime that does not consider such deviant values a shameful aberration from a virtuous way of life and refuses to recognize what had previously been considered “normal family values” as the norm. In this attack on the normative character of traditional family values, conservatives see their family values devalued; they view liberalism as cutting the family ties that freely competing Americans of all ages have to be able to count on. They regard moral freedom in this sphere as the oppression of their own morality; a state that allows such a thing is an authoritarian regime that interferes with the intimate relationship between free men, their families and their christian god. In short, conservative moralists speak volumes about the value of their values when they warn of the dangers of another morality laying claim to normalcy. Conservatives differ considerably over how much needs to be done to protect conservative family values from the licentiousness of liberalism and over when conservative morality can once again be sure of its status as the definitive “American normality.” There does seem to be consensus, however, on the idea that the moral precepts they call freedom can only be defended by a healthy dose of government authoritarianism.
II. Liberals’ congenial objections — and why liberal morality is necessary for American capitalism
The liberal justices justify their objection to the decision by claiming that not the liberal justices of the past, but the conservative justices of today are the ones overstepping their authority. They accuse the conservative judges of violating the common-law principle of stare decisis, presumptuously declaring null and void a precedent that is, after all, fifty years old. Roe v. Wade is thus not only quite “rooted,” but is itself the root of various other universally recognized, fundamental rights acknowledged even by the conservative majority — at least until now. Liberal justices may generally reject originalism as a misguided doctrine, but when they argue for a right to abortion and for the legal affirmation of liberal morality, they apparently also consider the fact that both have long become “part of the fabric of our constitutional law” as the decisive argument.
Liberal justices concede that the authors of the 14th Amendment did not provide for a right to abortion, and probably would have explicitly rejected it; after all, women were not even considered full, equal political citizens at the time. They assert, however, that there is at least one respect in which creating such a new fundamental right is very much in the spirit of the founding fathers, who are said to have considered the Constitution not as a document written in stone, but as a “living” document that must continue to evolve.
The abstract, general provisions of the Constitution are thus not to be seen as a hindrance to, but rather as an instrument of, politics: it is a plea for unbridled state power which is simply taken for granted as the benevolent power to satisfy citizens’ ever increasing thirst for freedom. And at the same time, they argue that the freedom of politics includes first and foremost the freedom of the judiciary to limit the freedom of the legislature, particularly with respect to matters of morality. They call for the power of the court to ensure fundamental rights, such as those created by Roe v. Wade, that are to remain beyond the reaches of the elected representatives of the people. Otherwise, a liberal way of life does not have a chance in America. Conservative justices cannot simply ignore so much wisdom and foresight on the part of the founding fathers when it comes to settling the conflicts in a nation of free competitors.
The issue of abortion thus touches on much more than the question of whether women should be free to make their own reproductive decisions. What is at stake is nothing less than a proven element of the state’s will, an established part of its legal corpus. When conservative justices strike down this right with such ostentatious disdain for long-standing precedent, this threatens far more than women’s autonomy, namely the integrity of the Supreme Court itself. They view the decision as undermining the Court’s nonpartisan status, the essential characteristic that grants it the authority to decide the constitutional legitimacy of the laws that the other branches merely “pass.”
The liberal justices add two explicitly non-juridical clarifications regarding why modern, liberal morality, according to which women should be able to exercise control over their bodies, does not reject family values or family duty, but is absolutely necessary for them. They refer to the brutality of living conditions in America, in which the “miracle” of childbirth apparently turns into a “nightmare” as soon as the state forces a pregnancy to be carried to term. This stems both from the economic hardship that having a child, let alone several, means for a great many women and from what the “family values” often look like in practice: unplanned children are not only often victims of violence but also often the product of violence. The liberal justices, accompanied by their many like-minded counterparts without black robes, take this excursion into the reality of capitalist freedom in order to make exactly one point about poverty and the shabbiness of American family life: a woman should have the fundamental right — as a free, independent and competing individual — to shoulder the burden of a family only if she truly wants to, entirely of her own free will. There is really nothing that Americans cannot turn into a matter in which the most important thing is the freedom of the individual. No wonder they are constantly dragging each other in front of the judge.
For now, however, it's on to the ballot box. To the extent that the battle over abortion rights becomes material for competing candidates stoking the flames in the run-up to the midterm elections, the controversy provides at least this evidence of American sovereignty in wartime: the certainty that the only enemies who can really harm American might are the enemies at home.
[*] This article was written just before the US midterm elections held in November, 2022.
 The 1973 decision calls for a pregnancy trimester timetable to which all state abortion laws must adhere. As a pregnancy progresses, the legal weight shifts away from a woman’s right to autonomy towards the state’s “compelling interests.” Accordingly, states may not ban abortion in the first trimester; They may “regulate,” but not outlaw, abortion in the second trimester; and they may outlaw it in the third trimester — except when necessary it is to preserve the health of the pregnant woman.
The 1973 Roe v. Wade decision was based on the 14th Amendment to the US Constitution: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” This Amendment is one of the most litigated parts of the Constitution and is often invoked, as in this case, to claim fundamental rights not explicitly mentioned in the Constitution. The Roe decision holds that the Due Process Clause provides a fundamental right to privacy that protects a woman’s right to an abortion. The current majority of Supreme Court justices reject such an interpretation. They find instead that of those rights not explicitly mentioned in the Constitution, only those are guaranteed that adhere to the Glucksberg standard set in 1997: rights that are “deeply rooted in the Nation’s history and tradition” and which make up “an essential component of ordered liberty.” Abortion is not such a right.
 Anti-abortion activists have been successfully challenging the right to abortion for decades. State legislatures have passed hundreds of laws, especially since 2011, to restrict access to abortion, for example by imposing waiting periods and requirements for parental consent or by banning some types of abortion procedures. This means that even before the Dobbs decision, access to abortion was practically non-existent in many states.
 “Publicly, former President Donald J. Trump heralded the Supreme Court’s ruling on Friday ending federal abortion protections as a victory. Yet, … Mr. Trump has privately told friends and advisers the ruling will be ‘bad for Republicans.’ When a draft copy of the decision leaked in May, Mr. Trump began telling friends and advisers that it would anger suburban women, a group who helped tilt the 2020 race to President Biden, and would lead to a backlash against Republicans in the November midterm elections. In other conversations, Mr. Trump has told people that measures like the Texas state law banning most abortions after six weeks and allowing citizens to file lawsuits against people who enable abortions are ‘so stupid,’ …” (New York Times, June 24, 2022)
 The Republican party and legal commentators have intensely speculated about the possibility of a full federal ban on abortion. The Dobbs decision has made it clear that the Supreme Court would not consider such a ban to be a violation of the 14th Amendment. Unclear, on the other hand, is whether it would be considered an illegitimate use of congressional power over state legislative authority, which conservatives have traditionally treated as a bulwark against moral and other encroachments by a federal government in the clutches of liberals. It seems fairly certain that the current majority of Supreme Court justices would strike down such a law on precisely theses grounds. Thus, the speculation goes, Republicans are likely to resort to a creative use of the Constitution’s “Commerce Clause.” This clause, which regulates commerce among states, could allow the federal government to override state abortion protections and enact a nationwide ban if it is treated as an economic activity, e.g., if it involves transporting medical devices manufactured in one state across state lines into another. Such remarkable creativity in dealing with the national body of laws is precisely the flip side of the strict, or at least constantly invoked, loyalty to the Constitution’s “original meaning.” Other Republicans are pursuing a more absolute goal: so-called fetal personhood laws, like those that already exist in states like Georgia, that would confer full legal rights and protections to fetuses. That would make abortion murder and settle the issue once and for all.
 In the 2008 “District of Columbia v. Heller” case, the Supreme Court held for the first time that the right to hold and bear arms is conferred upon individuals. The conservative majority ruled that the 2nd Amendment (“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”) grants the right to private gun ownership for individual self-defense. A conservative Supreme Court majority held in the 2022 case “New York State Rifle & Pistol Association v. Bruen” that individuals have a fundamental right to carry concealed weapons in public, even without “reasonable cause.” In the watershed “Carson v. Makin” decision in 2021, a conservative majority held that the 1st Amendment protection of religious liberty also encompasses a state duty to fund religious education, even though James Madison, principal author of the 1st Amendment, explicitly opposed having taxpayers fund religious activities.
 The 14th Amendment’s right-to-privacy provision serves as the legal foundation for other fundamental rights such as the right of married couples to use contraception (Griswold v. Connecticut, 1965), the right to same-sex sexual activity (Lawrence v. Texas, 2003), the right to same-sex marriage (Obergefell v. Hodges, 2015), and, in principle, the right to “interracial” marriage (Loving v. Virginia, 1967). The reasoning in the Dobbs case is remarkably vague in terms of its scope. If the originalist logic of the ruling holds, then there is indeed no reason why other fundamental rights like these should not be seen as invalid. However, if the official argument holds that the ruling only pertains to abortion, then the non-partisan, originalist logic is invalid. According to the majority opinion in Dobbs, what makes the right to abortion a unique case is that it involves nothing less than the potential life of a fetus, which the liberal justices are accused of criminally neglecting. Thus, the conservative justices here assert a fundamental right likewise not “deeply rooted in the Nation’s history and tradition” — i.e., the legal personhood of a fetus — against women’s claim to autonomy. Clarence Thomas, the right-winger among the conservative Supreme Court justices, provides clarity on the question of where things should go from here. In a concurring opinion to the Dobbs decision, he calls for striking down the “dangerously erroneous” precedents that established the above-mentioned rights. He argues that the Due Process Clause of the 14th Amendment “does not secure any substantive rights” and therefore “does not secure a right to abortion” — nor, logically, the right to birth control, gay marriage or same-sex sexual activity. The consequences of these precedents are equally clear for Justice Thomas: they established the canon of liberal rights that have led to the fall of the nation. There is no question that he and his conservative colleagues have their sights on a number of fundamental rights to what they view as anti-American, liberal perversions. It is simply a matter of when cases challenging these rights will finally be included on the Supreme Court docket. Justice Samuel Alito, the chief author of the Dobbs decision and the assertion that it refers only to abortion, noted in a tribute to the late Justice Antonin Scalia: “‘To him and many other originalists, the decision in Obergefell [v. Hodges, which codified the right to same-sex marriage] was the precise opposite of originalism,’ Justice Alito said. ‘In 1868, when the 14th Amendment was adopted, nobody — nobody — understood it to protect a right to same-sex marriage.’” (New York Times, October 10, 2022)
 This is the basis for a number of current — very popular and very revealing — conservative conspiracy theories, according to which sex education in school is tantamount to “grooming” children for sexual exploitation. They consider teaching youth about transsexuality tantamount to abuse because it supposedly sexualizes children and encourages them to undergo gender reassignment. That goes to show how familiar conservatives are with equating education to indoctrination …
 For some conservative state governments, even a vice squad is not enough. All good family people should be given the opportunity to act as deputies in the service of this great cause: “The law known as Senate Bill 8 — SB8 for short — was signed into law in May by Texas’ conservative governor, Greg Abbott, and is considered the strictest abortion law in the United States. … De facto, it virtually eliminates access to abortion in Texas. … The American Medical Association announced that it was ‘deeply disturbed by Texas SB8 and disappointed by today’s inaction from the U.S. Supreme Court allowing this egregious law to go into effect. This significant overreach not only bans virtually all abortions in the state, but it interferes in the patient-physician relationship and places bounties on physicians and health care workers simply for delivering care’ (AMA statement on Texas SB8, September 1, 2021). Also causing outrage is the fact that it is not the authorities who are to enforce the new regulations, but private citizens. Citizens are encouraged to take to court those they suspect of helping women have abortions after six weeks. This could affect abortion clinics or their employees, for example. Plaintiffs will receive at least $10,000 on conviction, to be paid by the convicted party” (Spiegel Online, September 2, 2021, translated). This offers a legal alternative and reward to the numerous activists who have already been enforcing, with varying degrees of physical violence, a fetus’ right to life against abortion providers and women seeking abortions.
 Stare decisis is the legal principle that courts will adhere to precedent and comes from the Latin phrase “to stand by things decided.”
 The counterpart to “originalism” is a liberal school of legal thought called “the living constitution” or “judicial pragmatism.”
© GegenStandpunkt 2023