Mudlarking for America

The Aristocrats (or the war on women)

June 17, 2022 /

Trigger warning:  I’m going to be talking about cis white men and Christians a lot.  Before you come into my comments and “not all men” or “not all Christians” me, I want you to do something.  Check these lists.  

For men:

  1. Do you realize and acknowledge that cis white male privilege exists?
  2. Are you committed to using that privilege to uplift the voices of marginalized groups?
  3. Do you call out other cis white men who don’t believe this privilege exists or act in a disrespectful or violent way to marginalized groups?
  4. Do you believe in enthusiastic consent and practice it?

For Christians:

  1. Do you follow the teachings of Jesus (who is brown), who dined with sex workers and believed in feeding the poor, not accumulating wealth and loving your neighbor as yourself no matter who they were?
  2. Do you call out other Christians who do not do this and argue that treating others with love and fairness is not Biblical?
  3. Do you respect the beliefs of others, and not force your Christian beliefs/ethics on other people against their will?  This includes mission trips, proselytizing, praying at people, and “warning” others they are going to hell.
  4. Do you respect the separation of Church and State and understand the 1st amendment includes freedom FROM religion as well as freedom to have religion?

If you answered yes to all these questions:  I AM NOT TALKING ABOUT YOU.  If you start feeling icky about anything I’m saying and feel tempted to “not all” me, please come back up here to this message.  I’m preaching to the choir, and you are the choir. 

If you answered no to any of these questions, I encourage you to explore why with a therapist or with a trusted NEUTRAL friend.  Do not go to your echo chamber of bros or your boss babe/essential oils MLM group chat  to reinforce I’m being “too sensitive” or “sinful”.  The bar is on the floor and you keep digging.

Does anyone know the premise of the old joke The Aristocrats?  The set up is that an agent is looking for a new act, then the comedian describes the most obscene, disgusting things ever.  Then says the name of the act is The Aristocrats.  So…I’m looking for a new act….

What does a corpse, a public building and a gun have in common?  I don’t know, you ask expectantly, what do a corpse, a public building and a gun have in common.  They all have more rights than a woman in America!  Rimshot!

Christian cis straight white men are the source of all the world’s problems. I love you individually, but as a group y’all suck.  A lot.  Christian cis straight white woman? Y’all aren’t much better.  What has brought on this tirade of abuse? They leaked the draft of the opinion to overturn Roe vs Wade.  Everyone is OUTRAGED because the sanctity of the High Court has been breached.  John Roberts is BETRAYED.  Frankly, Scarlett, I don’t give a damn.  John Roberts can suck my proverbial dick.  But see, if I *had* a real dick I’d be fine.  But alas, I am a lowly woman- a second class citizen and fit only to be an incubator to create more men and more workers for the machine of capitalism.  If I died, the only loss would be that I might have been carrying a boy child.  Except jokes on you!  I’m no longer breedable.  I’m worthless as a woman.  YAY!

Think I’m being dramatic?  Well, let’s get into it. The opinion states that abortion isn’t Constitutional because the 14th amendment was interpreted to protect a right that was not included in the text of the Constitution.  He said it was “egregiously wrong” and that its reasoning was “exceptionally weak, and the decision has had damaging consequences.”  He goes on to say, “The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions.”  I will be addressing the truth and ramifications of each of these quotes in two parts.  First, my favorite thing-  the history.  Is the right to abortion a part of America’s history and traditions?

As in most things, dear little Sammy is wrong.  Go figure.  He’s getting his history from pro-life propaganda sites like the Family Research Council and the National Right to Life.  Fuck me.  We’re depending on a Conservative Charismatic Catholic white lawyer’s interpretation of history.  He can’t hear anything over the sound of himself being smug.  Had he actually done his research, he would have found a few different things…you know…like facts.

Abortion was a part of the history of the colonies.  Abortion was legal in the colonies, as it was in England before it, until the “quickening”.  This was when the woman felt the baby kick, usually fourteen to twenty-six weeks depending.  Abortion was a common occurrence, even among the Puritans. (Steenland)  For all their reputation of strictness, and a lot of it is earned, there was a staggering amount of sex going on.  According to “A Midwife’s Tale — the Life of Martha Ballard, Based on Her Diary, 1785-1812”, out of 106 babies born to first-time mothers between 1785 and 1797, nearly 40 percent were conceived by single women.  These children were either born “early” to a newly married couple or just completely out of wedlock.  There was also no evidence that these women were shunned or punished for this in rural communities.  (Trafford)  This was the Puritans.  The ones who left because they were too uptight for England.

England had a lot of sex going on too.  The quickening rule was in play here as well, and that is one of the laws the Puritans kept.  It seems that the justices, and most Pro-Life movements, are basing their assumptions that abortion was not common on the 2006 work of Joseph Dellapenna in his book “Dispelling the Myths of Abortion History”.  There have been several scholarly journals that refute this and claim Dellapenna misread the cases and had a basic ignorance of cultural history. (Spivack) Sigh. Maybe some bias too?  No….. Anyway, the argument is made that there is a lot of case law about abortion, what is found is there are cases about people trying to trick other women into drinking herbs to induce an abortion.  However, there is nothing about charging women who self administered the herbs or the women who procured them for willing participants. There is discussion that abortion was considered a religious matter, not a secular one.  The canon law cases were not discussed by Dellapenna or by the justices. The main aim was to punish extramarital sex, which was a sin not a secular crime, and the aborted fetus was the evidence of that sex.  Looking for the abortion was not the aim. (Spivack) At any rate, the case law being in the canon courts indicates this was considered a religious matter not one for the civil courts or the state.  (Spivack)

More interestingly, the Puritans also believed that people could live a godly life without children, so there was no stigma around “taking the trade”, or ingesting herbal abortifacients. Surgical interventions were rare as they were very dangerous.  Most women who needed an abortion went to a midwives in their communities who knew herblore.  Early American medical books gave instructions for tinctures for “suppressing the courses” or inducing abortion. (Franklin and Smith)

The biggest source of information we have on early American abortions is the legal case of Sarah Grosvenor, a young woman who died from a late-term surgical abortion in Connecticut in 1742.  Charges were brought against the young surgeon who performed the surgery on Sarah as both she and her unborn child died.  Testimony states she had tried to end the pregnancy by ingesting herbal abortifacients, but it did not work.  There were no ethical ramifications of this and no one in the community was shocked.  What drew the charges were that the surgeon performed the surgical abortion after the child had quickened and both Sarah and the child died. (Dayton)

And as with most things in this country, racism gets involved.  When the transatlantic slave trade was outlawed in January 1808, enslavers kept the number of slaves up by “breeding”.  As gross as that sounds, they forced black women to bear as many children as possible to keep slave levels high. (Goldstone)  Black women became skilled apothecaries and midwives out of necessity. The herbs needed to cause an abortion were illegal for them, but they became adept at using them.  As soon as the Emancipation Proclamation was put in place, abortion or outright sterilization for black women was seen as favorable.  This led into the negative connotations for abortion that were characterized by the late 1800s.

The view of abortion by current Christofacists did not come into being until the Victorian era.  And go figure, the source was not godliness or morals, it was control.  As today, there was a growing nativist trend in politics.  White men were concerned that incoming immigrants would “out breed” (always using this gross term like we’re cattle) them and white people would be a minority.  Even if they stopped the tide of immigration, immigrant families tended to be larger because of lack of resources and education about contraception. (Steenland) Conversely, upper class white women had access to both of those and were using contraception methods, taught by people like Margaret Sanger, to limit their family size and timing of when children were born. Men in America were also concerned because there was a movement for increased female independence.  Women were volunteering outside the home for various religious, charitable and even political causes. Powerhouses like Carrie Nation were pioneering for temperance and the Militant Suffragette movement was coming online. All of this threatened the patriarchy and the established male power structure. (Steenland)  We can’t have these females running around poking their noses in men’s business! Next they will want the vote. Better get them busy with more babies so they don’t have time to do anything else.

In 1873, the first of the Comstock laws were passed, which prohibited the distribution of contraception as “obscene materials”.  Those didn’t go away until 1965 in Supreme Court ruling Griswold v. Connecticut, which is under attack by this ruling but more on that later. (Steenland) There was also a push against “irregular” doctors, or homeopaths and midwives.  Herbal medicine was considered unscientific and there was a big push to get rid of this.  Now I am not saying that Lavender Breeze essential oil is going to cure your stage 4 cancer.  Far from it.  However, a lot of modern medicine comes from herbs and there is a lot of wisdom there.  You can take penicillin for strep and ginger tea for a stomach ache.  Science and herblore can work together.  All this did was cut off a source of herbal remedies for abortions for women as “scientific” male doctors didn’t know about them and even if they did know wouldn’t give them out. Also, most midwives were women, and many were black women (there’s that racism again), and most “scientific” doctors were men.  It attacked the very base of women’s authority and knowledge while depriving them of a valuable service. (Steenland)

Gradually, through a vigorous campaign by male doctors backed by the AMA, the Catholic Church and supported by the tabloid press, the acceptance of early-term abortion soured. (Steenland)  Women who procured abortions were depicted as unpatriotic and selfish.  The Victorian ideal was the “Angel in the Home”, and this went right against it. These unnatural harridans were shirking their duty as godly American women in not fulfilling their ordained role as wife and mother. In Carroll Smith-Rosenberg’s book Disorderly Conduct:  Visions of Gender in Victorian America, she states that restricting abortion was one way male physicians could “assert clear authority” over their female patients. (Smith-Rosenberg) By 1910, abortion, except in cases to save a mother’s life, was deemed illegal in all states but one.  Surprisingly, Kentucky courts declared the procedure to be legal.  Kentucky…what happened?  But eventually, they joined the group and abortion was made illegal, and it remained illegal until 1973 until the Roe v. Wade ruling came along (Steenland).

So…huh….that sounds like it has a history and tradition in this country, Sammy boy.  In fact, it sounds like if we’re going with tradition, it was a matter for individual churches not the state.  Huh.  What do you know about that? Well, what about your legal argument? Dear Samuel, says that Roe was “egregiously wrong” because it was based on interpretation of the 14th amendment.  I am by no stretch of the imagination a lawyer, so I am relying heavily on other people’s interpretation.  Because I am a novice, I’m going to cross check this pretty hard.  Feel free to check my sources, which are listed on the last page.

The due process clause of the 14th amendment is as follows, “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.”  (Chapman and Yoshino) This is pretty much the same as the 5th amendment (it’s more than keeping you from incriminating yourself) because of this phrase- “be deprived of life, liberty, or property, without due process of law”.  The 5th deals with the federal government, the 14th deals with the states. (Constitution Annotated Editors)  Before this was enacted, if you wanted to protect yourself from unjust state laws then all you had were other state laws or state constitutions.  The federal government could not help you.  If I’m reading it correctly (and if I am not, please correct me law minded folks) before the 14th, state laws could trample on the Bill of Rights because the Constitution was a federal law.

There is a whole bunch on this topic, but what it boils down to is the government- both state and federal- must follow a process before depriving a person of “life, liberty or property”.  In recent years, that has expanded beyond physical property and into what is called “unenumerated rights”-  these are rights that are not specifically called out in the Constitution.  This has allowed the courts to use the right to privacy from the 1965 decision in Griswold v Connecticut.  Fun fact:  This struck down the last of the old Comstock laws.  The argument for the right to privacy even though it is not explicitly called out in the Constitution  has a fancy name called the penumbra, which means it can be inferred from the “shadowy edges” of the other amendments.  From this decision we’ve seen the following become legal:

  • Contraception being available to married couples (Griswold v Connecticut)
  • Interracial marriage (Loving v Virginia)
  • Contraception being available to non-married couples (Eisenstadt v Baird)
  • The right to abortion (Roe v Wade)
  • The right for same sex couples to marry (Obergefell v Hodges)
  • The right to have same sex intimacy (Lawrence v Texas)
  • The right to have and distribute adult content (Stanley v Georgia)
  • The right to speak any language other than English outside- (Mayor v Nebraska)
  • The right for prisoners, disabled people or anyone deemed to be a “deviant” not to be forcibly sterilized (Skinner v Oklahoma)

That’s a lot of stuff.  The reasoning that made this stuff legal is exactly what Alito is poking holes in in this decision.  His basic argument is that since it is not explicitly enumerated in the Constitution that we can’t say it’s a right.  That’s like saying we can’t have ice cream because it’s not in the Bible.  I don’t know about you, but I’m really tired of people treating the Constitution as sacrosanct.   It was meant to be amended.  Sometimes I think Jefferson had the right idea when he said that we should redo the Constitution every 20 years so that we’re not tied to the tyranny of generations.  I digress.  

This has been described by Heather Cox Richardson as “an alarm bell like the 1857 Dred Scott v Sandford decision declaring both that Black Americans had no rights that a white man was bound to respect and that Congress had no power to prohibit human enslavement in the territories.”  She goes on to say that it says that the state legislators are where the real power should lie not the federal government.  There goes civil rights and a whole lot of other stuff.  Brown v Board of Education is tied to the 14th amendment too. I am also really tired of everyone punting real power down to the states.  There is a federal government for a reason because states don’t get it done.  You cannot lead by committee.  Anyone remember a little thing called the slavery?  They tried the states’ rights thing then too.  We fought a whole war over it.  Hell, they’ve been trying the states’ rights thing since the Articles of Confederation.  Spoiler alert:  It didn’t fucking work, hence the Constitutional Convention.  To quote Lin Manuel Miranda, “Are we a nation of states?  What’s the State of our Nation?”  Again, I digress.

In plucking the thread to unravel Roe, this decision has torn apart protections that have been around since after World War II.  States are so heavily gerrymandered and have restricted the right to vote that they will remain in Republican hands indefinitely.  This smarmy little man and his little friends (“I LIKE BEER”, Milquetoast, Serena Joy, and Tiny Dong Silver) have set us back fifty years for probably another fifty years.  But that’s what they wanted all along.

See, they are all Christofacists- Christian white nationalists.  They are super worried about the lack of white babies to send to the adoption pipeline into evangelical homes.  There aren’t enough.  Serena Joy (Amy Coney Barrett….I just threw up a little) called that out specifically in the opinion so we wouldn’t worry.  Because being pregnant is such a breeze, especially when you’re too poor for prenatal care or have preexisting conditions.  As a creator on TikTok said, she just admitted children are commodities to be provided to entitled adults.  That’s pretty apt.  And another thing, aren’t there a ton of kids in the foster care system right now?  So many that the state of Texas lost over a hundred? (Read about that here:  https://www.houstonchronicle.com/politics/texas/article/Foster-care-crisis-is-out-of-control-in-Texas-16692544.php )  Oh right.  Those aren’t white babies.

When they take contraception (That’s coming. You know that’s coming, right?) there will be no way to prevent an unwanted pregnancy.  Women who have small kids are less likely to leave abusive marriages or escape cult-like religions.  They will be stuck and their kids will be with them.  The Christofascists keep their docile women and get the next generation indoctrinated as a bonus.

Plus, no one can afford kids so they aren’t having them.  There goes slave labor for their rich buddies.  We need a poorly educated class to work in factories for rich people for slave wages.  Force people to have babies, don’t give them enough resources to raise them, underfund the schools so they can’t make it out.  Easy peasy.  The best thing is these kids they are forcing us to have will all be white since interracial marriage will be outlawed.  That way white people won’t be the minority.  It’s flipping perfect.

Again, none of this happened directly after Roe.  The Southern Baptist Convention affirmed life beginning with first breath until 1976.  The Southern Baptist Convention is not exactly bastion of liberal values, so it’s clear abortion wasn’t really a thing for them.  Like everything, this comes down to Reagan.  They had to find a way to rally people behind voting against Jimmy Carter for a second term.  Groups like the Heritage Foundation were looking to parlay Evangelicals into a political force.  The decision in Green v. Connally, which said that donations to a private school that practiced racial segregation were no longer tax deductible got the attention of people like Jerry Falwell. They all put their heads together for an issue that would be the catalyst, since segregation wasn’t polling well.  They came up with abortion.  They painted pictures of sweet little helpless babies being killed by evil liberals.  You can’t logic this away.  It’s pure instinct and emotion.  All they had to do was sell it and wait. (BALMER et al.)

And they call it The Aristocrats.

So what do we do?

I keep trying to stick to the theme of this series which is looking for that One Good Thing in all this garbage. I’m going to paraphrase for the modern ear. I keep coming back to All People Are Created Equal.  Full stop.  However, if you look at the Constitution women are not considered people.  One could argue that when they said “men” they meant “men” in the generic sense of the word- like human.  However, the crux of this decision is that if it isn’t enumerated in the Constitution it doesn’t count.  We need the ERA.

The Equal Rights Amendment says, “Women shall have equal rights in the United States and every place subject to its jurisdiction. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”  Name any medical procedure a man has that needs the permission of any government entity or even any other person.  Spoiler alert:  There isn’t one.  Therefore, we get this sucker passed and any anti-choice legislation gets struck down as unconstitutional.

This amendment was first introduced into Congress in 1923.  It languished there until it was approved by the Senate in March 1972.  It was then submitted to the state legislatures for a three fourths ratification.  Strangely, there was a deadline for state ratification written into the preamble of seven years or 1982.  However, it did not achieve the requisite ratification of 38 states until 2020 (“Equal Rights Amendment | Definition, History, Text, Pros and Cons, & Facts”)

After the last states ratified in 2020, the Trump administration Department of Justice’s Office of Legal Counsel (OLC) said they didn’t count because they didn’t meet the seven year deadline.  Go figure.  Many constitutional scholars filed amicus briefs that said the states weren’t ratifying the preamble.  They were ratifying the amendment, and the deadline isn’t in there anywhere.  Trump didn’t budge.  In January 2022, the Biden administration OLC issued an opinion that Congress could remove the deadline.  A bill called the “Three-State Strategy” was immediately introduced by Reps. Carolyn Maloney (D-N.Y.) and Jackie Speier (D-Calif.) and 152 cosponsors to remove the deadline.  All Congress has to do is pass it.  (Baker et al.)  Then once the ERA is added as the 28th amendment, we can pass the Women’s Health Protection Act of 2021, which codifies Roe.  This will probably take getting rid of the filibuster, but that’s a whole different thing.  I go in depth into that conundrum in another piece. (See that discussion, here)

As to the right to privacy, I don’t know what to do.  There is a huge push by conservative judges, and this includes the ones sitting on the Supreme Court right now, that the right to privacy is a farce because it isn’t enumerated in the Constitution.  This is so dumb to me.  The Founders wrote this in 1789, there really wasn’t any privacy  all except for the very wealthy.  People lived on top of each other and everyone knew everyone else’s business.  It’s the advent of the industrial revolution and new technology that put privacy into sharper focus.

There is also an argument that because the Founders were heavily steeped in Lockean philosophy, they had a similar view to privacy that Locke did.  The right to liberty is necessary for freedom, and the right to control your own mind and body is essential to the concept of liberty.  It follows that individual freedom is impossible without liberty, and therefore is impossible without physical and mental autonomy.  There are very specific call outs of this in the First, Fourth, Fifth, Sixth, and Ninth Amendment. However, the Framers didn’t think we’d be complete morons and need it spelled out for us.  Well, they were spectacularly wrong.  They also thought we’d be less reticent to amend the LIVING DOCUMENT.  I digress.  Anyway, the terms “freedom” and “liberty” are referred to all over the place in the Constitution.  One could say that is very specifically enumerated, and if privacy as defined by the Framers influenced by Locke is part of liberty and by definition freedom then privacy is enumerated too.

However, this is another legal argument that could very easily be struck down by the nature of the men and women on the bench currently.  They are remnants of a failed administration and are Christofascist zealots.  The wife of one, Tiny Dong Silver, has been implicated in the January 6 insurrection.  And if you don’t think his wife influences his work, you’ve never been married.  Also, it’s very likely they share similar views.  I’ve seen nothing to disprove that assumption.  At the very least, there needs to be an investigation and quite probably an impeachment and removal.

In the long term, there needs to be term limits for the Supreme Court.  We are being held ransom by previous administrations and old people.  The Constitution says the justices “shall hold their Offices during good Behaviour.”, so it’s yet another Constitutional change, which is a mess.  But it needs to happen.  If I would take your keys and not let you drive if you were in my family, you shouldn’t be deciding case law.

In the end, we’re at the mercy of Trump and the Christofascists even though we removed them from the executive. It’s hard not to be depressed, but I am trying to hold on to hope.

Works Cited

Baker, Carrie N., et al. ““The Equal Rights Amendment Has Been Ratified. It Is the Law”: US House Resolution Declares ERA 28th Amendment.” Ms. Magazine, 27 January 2022, https://msmagazine.com/2022/01/27/equal-rights-amendment-resolution-us-house-28th-amendment-constitution/. Accessed 4 May 2022.

BALMER, RANDALL, et al. “The Real Origins of the Religious Right.” Politico, 27 May 2014, https://www.politico.com/magazine/story/2014/05/religious-right-real-origins-107133/. Accessed 4 May 2022.

Chapman, Nathan S., and Kenji Yoshino. “Interpretation: The Fourteenth Amendment Due Process Clause | The National Constitution Center.” National Constitution Center, 2022, https://constitutioncenter.org/interactive-constitution/interpretation/amendment-xiv/clauses/701. Accessed 3 May 2022.

Constitution Annotated Editors. “Right to Due Process: Overview | Constitution Annotated | Congress.gov | Library of Congress.” Constitution Annotated, https://constitution.congress.gov/browse/essay/amdt5_4_1/. Accessed 3 May 2022.

Dayton, Cornelia H. “The Strange Death of Sarah Grosvenor in 1742.” New England Historical Society, https://www.newenglandhistoricalsociety.com/the-strange-death-of-sarah-grosvenor-in-1742/. Accessed 3 May 2022.

“Equal Rights Amendment | Definition, History, Text, Pros and Cons, & Facts.” Encyclopedia Britannica, https://www.britannica.com/topic/Equal-Rights-Amendment. Accessed 4 May 2022.

Franklin, Benjamin, and Eliza Smith. “”Every man his own doctor,” home medical guides, selections, ca. 1727.” National Humanities Center, http://nationalhumanitiescenter.org/pds/becomingamer/ideas/text7/homemedicalguides.pdf. Accessed 3 May 2022.

Goldstone, Lawrence. Dark Bargain: Slavery, Profits, and the Struggle for the Constitution. Tantor Media, Incorporated, 2021.

Smith-Rosenberg, Carroll. Disorderly conduct : visions of gender in Victorian America. Oxford University Press, 1986.

Spivack, Carla. “To “Bring Down the Flowers”: The Cultural Context of Abortion Law in Early Modern England.” William & Mary Journal of Women and the Law, vol. 14, no. 1, 2007, pp. 107-151. William & Mary Journal of Women and the Law, https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1042&context=wmjowl.

Steenland, Sally. “Scarlet Letters: Getting the History of Abortion and Contraception Right.” Center for American Progress, 8 August 2013, https://www.americanprogress.org/article/scarlet-letters-getting-the-history-of-abortion-and-contraception-right/. Accessed 3 May 2022.

Trafford, Abigail. “UNWED MOTHERHOOD INSIGHTS FROM THE COLONIAL ERA.” The Washington Post, 8 January 1991, https://www.washingtonpost.com/archive/lifestyle/wellness/1991/01/08/unwed-motherhood-insights-from-the-colonial-era/14ff7ff2-d03d-4552-86c5-73b8c15341b0/. Accessed 3 May 2022.