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The reality of America’s rough justice

If Roe V Wade falls, the Trump world has won

Anti-abortion demonstrators outside the Supreme Court building, 1991. Photo: Andrew Holbrooke/ Corbis/Getty Images

Hold most Americans upside down, and what’s likely to come tumbling out, besides a gun, is legalese.

Most Americans, somewhere in our heads, are lawyered up, either for or against something. Back in the day, we were told that if we wanted to be rich, we should study medicine. If we wanted to be smart, study law.

Lincoln was a lawyer. So was Richard Nixon. Barack Obama was president of the Harvard Law Review, the country’s most prestigious independent law journal and published by Harvard students.

This journal is not simply a student newspaper. It is a signpost to the future greats. Ruth Bader Ginsburg, Ketanji Brown Jackson, Merrick Garland, Mike Pompeo and Ted Cruz were all connected to the journal and are just a few names that most people would recognise.

This attention to lawyer language, to the law itself, begins very young for an American. We learned, or used to – by heart – the Preamble to the United States Constitution: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

And so it begins, a kind of America World. It begins long before we know anything about being an adult, this quest. To find a “more perfect Union.” The United States of America gives you a hint about what it is in the name itself. The USA is a union of sovereign states, united under the Constitution which, unlike the English constitution, is written down. Set down in a kind of ambiguous precision.

So we Americans trust the Supreme Court, “good men and true” as the saying used to go, to interpret the words for us. And it has down through the years.

The late 20th-century concept of “originalism”, which some in the judiciary believe the Constitution must be interpreted through, is the belief that each word, clause or phrase must be understood through the era in which it was first written down. That it cannot be reinterpreted or changed. And so “originalism” asks: “What did the Framers intend at the time of framing?”

Of course “originalism” is ridiculous, but in a nation with an evangelical Christian base, it works.

While he was president, Donald Trump pledged to farm out his Supreme Court picks to the Federalist Society to vet. A Republican Party-backed organisation, the Society is a judicial lighthouse, searching for the most conservative judges.

In choosing them, Trump shows his savvy. Like a good shill should. In other words, he did not give the GOP what they wanted. He gave them what they are.

Since the mid 1950s, the Republican Party has been increasingly radicalised. From chasing “reds under the bed”; through to Barry Goldwater and a mutually assured nuclear war which America, without a doubt, would survive; to Richard Nixon who ordered a burglary operation on his opponents, then lied about it; to Ronald Reagan and the Iran-Contra deal which, against the express will of Congress, secretly sold weapons to the Islamic Republic to fund the anti-government contras of Nicaragua.

The list goes all the way to Don The Con himself, who exhorted a throng on January 6 2021 to “march to the Capitol”.

Running like a poisoned river underneath it all has been the judicial decision known as Roe v Wade, which enshrined a pregnant woman’s freedom to choose to have an abortion without excessive government restrictions. Many of the GOP have always seen it as a symbol of an emerging US that is very different from their core beliefs, and therefore something for Republicans to seek to stamp out.

Long gone now is the party of Lincoln and, in its place, is the party of Richard Nixon, who dogwhistled what he called the ‘southern strategy’: a place of comfort and safety for those fleeing the Democratic Party because they just could not get behind the civil rights movement.

The Republicans have staked themselves out as the flame that lit the way to the culture wars. There is no better battle than that over the control of the bodies of women. And the battle does not stop there.

The 14th Amendment to the Constitution – there are over 100 amendments – is one of the three Reconstruction Amendments, enacted in the aftermath of the civil war.

It addresses citizenship and equal protection under the law and ensured that no one could enslave, for example, my ancestors ever again. The due process clause of the 14th prohibits state and local governments having the power to deprive an individual of life, liberty or property without a judicial procedure.

The clause requires that each state provide equal protection under the law to everyone, citizen or non-citizen. It has been used to defend the right to marry another person of another ethnicity, the right to marry another person of the same sex and the right to determine what happens to your own body.

If the leaked opinion from the Conservative side of the Supreme Court comes to pass, then all those things are no longer under federal protection. It will be for each individual state to decide what they want to do. And on abortion, about 26 states are waiting for that day.

One state, Missouri, would automatically trigger its own law if the Supreme Court rules that abortion is a matter for each state. Missouri state bans abortion after eight weeks – a span of time in which many women don’t even know that they’re pregnant.

If a person is helped to get an abortion after that time, they and those who helped could be charged with a Class B felony which carries 5-15 years in prison under Missouri law.

There is even talk that this could be interpreted as, for example, if a Missouri woman gets pregnant outside of the state and then gets an abortion in the state, she could be charged with murdering a resident of Missouri.

It is no wonder that it was America that created the Marvel Universe, a vision of shared uber realities within a contest of definition and meaning. America is becoming a game of different metaverses, different worlds.

If Roe v Wade falls, in our reality, Trump World has won.

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