On July 14, 2022, a House committee hearing included a discussion between a witness and Representative that highlighted the blatant hypocrisy and danger of the so-called originalist philosophy of justice espoused by The Federalist Society. The hearing involved a case of a ten year old girl in Ohio who was raped, became pregnant and -- due to the elimination of Roe protections nationally and subsequent banning of abortion in Ohio -- required the girl to travel to bordering Indiana to obtain an abortion. The witness was Catherine Foster, who is President and CEO of Americans United for Life, a prominent anti-abortion organization across the country. The Representative was Eric Swalwell, who asked Foster if a ten year old could make a choice to have a baby. The point of the question was to highlight the inherent cruelty of the "zero tolerance" stance of anti-abortionists who want to ban ALL abortions, even for rape or protecting the life of the mother.
The witness, knowing she was on camera and realizing any answer saying a ten year old girl should be forced to carry a baby to term, much less the baby from a rape, would make her and her organization appear to be monsters, answered with what to her seemed a totally logical answer.
“I believe it would probably impact her life, and so, therefore, it would fall under any exception and would not be an abortion.”
Read that response CAREFULLY. SEVERAL TIMES.
Americans United for Life is most noted for assisting anti-abortion efforts by crafting boilerplate language for anti-abortion laws proposed in state houses across the country. It is safe to assume that the organization is behind the terms enacted by MANY states that are prohibiting abortion for ANY circumstances, including rape and incest.
Yet here, caught in the glare of cameras with the entire country watching, a key anti-abortion leader appeared to blink.
This is not a sign of reasonableness. This is not a sign of encouragement that a middle ground might be reached. Go back and read her response again, word for word. Her response is a sign of dangerous caprice poisoning the legal system.
Her rationale for her answer involves a situational redefinition of the word abortion. In some situations, abortion is bad and should be stopped regardless of the opinions of others. In OTHER situations, the act being described is simply no longer abortion. By defining the act as something else in that specific scenario, Foster allows her mind and the minds of her organization's members to continue believing their morality and logic are ironclad and are not in conflict.
But stop and contemplate the illogic of that thinking. These laws are being drafted and enacted by people thinking in absolutist terms with wordings that -- to the average literate adult -- appear to have ZERO wiggle room and -- knowing the aims of the people crafting the laws -- appear to meet the goals of those enacting them to impose draconian restrictions perfectly. Yet proponents of these laws immediately revert to alternate definitions of KEY WORDS in the laws which exist ONLY IN THEIR HEAD and NOWHERE ON PAPER that an independent, rational, literate third party could reasonably and consistently interpret. Like a judge. Or a member of a jury. Or a defendant. Or a doctor or patient trying to avoid becoming a defendant.
Can you spot the REAL problem here?
The United States is IN this new abortion predicament because the US Supreme Court and the larger judiciary has been corrupted over the last thirty years with judges who espouse an extremist philosophy that says the language of laws should only be interpreted using the interpretations of the time in which those laws were written. Current judges should not "interpret" old laws with modern nuances to find new interpretations the original lawmakers could not POSSIBLY have meant because the nuance didn't exist at the time.
If you believe the rationale for this concept as publicly summarized by its adherents, a goal of this philosophy is to put responsibility back on LEGISLATURES at the federal and state level to pass explicit laws if a new right is to be granted or if government is to take on some new function not explicitly identified in prior legislation. As many adherents put it, don't rely on the courts to do your dirty work to create rights or functionality that could not pass through legislatures.
One only has to look at two rulings issued by the Supreme Court within a week of each other to see this official rationale is a cynical fraud. Before overturning Roe v Wade on the grounds of pushing back decisions about abortion rights to the states, the SAME Supreme Court also overturned a law in New York imposing limits on assault rifles because the law conflicted with Second Amendment rights, which say nothing about blocking the ability of states to dictate procedures for citizens to follow prior to bearing combat weapons and related paraphernalia.
The true goal of this originalist claptrap is to provide a rationale for rejecting over a century of progress in civil rights, antitrust regulation, labor rights and criminal justice protections knowing that the special interests that will benefit from those rollbacks have perfected the art of paralyzing the existing gerrymandered, un-democratic legislative processes to ensure such protections cannot be re-enacted with explicit legislation -- quickly or perhaps ever.
The real problem with this originalist utopia we are entering is that in it, the enforcement of laws will inevitably revert to a mode in which the written word has no consistent meaning at all. Imagine a state enacting a law stating "Abortion is prohibited under criminal penalty for all cases." If subsequent cases arise in which a judge simply redefines the term "abortion" when ruling in case A involving the rape of a ten year old because that circumstance is horrid in the judge's mind but NOT redefining the term "abortion" when ruling in case B involving a twenty seven year old woman, then we are no longer operating under the rule of law. We are operating at the whim of whichever judge a plaintiff or defendant draws at trial and the whims of that judge from case to case which is a violation of the equal protections clause.
And, courtesy of the gang of five on the Supreme Court who were all promoted to their positions precisely because of their support for this extremist philosophy, this is not some futuristic, worst-case exaggeration of how things might turn out if we don't course-correct soon. This is the way our legal system is operating now.
WTH
