Ann Arbor (Informed Comment) – This week a leaked opinion by far right wing Justice Samuel Alito revealed that the Trump-Bush majority on the Supreme Court intended to reverse Roe v. Wade and allow states to make abortion illegal. Throughout Alito’s opinion ran a subtext, however, of denying the constitutional right to privacy, a notion that would allow states also to ban contraception, gay marriage, and interracial marriage. Even just with the overturning of Roe, and given the abortion laws on the books or being fast-tracked by 29 states, many of which do not have an exception for rape or incest, it is possible that a majority of American women will have fewer rights over their own bodies than the Muslim women living in 29 Muslim-majority countries, ten of which permit abortion on demand.
Also this week, the Israeli Supreme Court ruled that Palestinian residents of 8 villages in Masafir Yata on the Palestinian West Bank should be evicted because the Israeli Army moved in to use the area for target practice.
Of the ISC decision, the European Union said on Twitter, “1/2 Yesterday, the Israeli Supreme Court issued a decision on the Masafer Yatta eviction case in the South Hebron Hills. As a result of this decision, about 1200 Palestinians in the area face a risk of imminent forcible transfer from their homes & destruction of their communities,” adding, “2/2 Under international law, individual or mass forcible transfers and deportation of protected persons from occupied territories are prohibited, regardless of their motive. As the occupying power, Israel has the obligation to protect the Palestinian population & not displace it.”
To explain, international bodies like the UN and the European Union consider the Palestinian West Bank to be under Israeli military occupation and therefore to be bound by the Fourth Geneva Convention of 1949 and the Rome Statute of 1998, which forbide the forcible transfer of occupied peoples out of their homes by the Occupying Power. This law was enacted in hopes of preventing a repetition of the actions of the Axis in WW II, which often transferred occupied populations, sometimes to concentration camps. Israeli authorities, including the country’s Supreme Court, blithely consider themselves above international law, just as does the junta in Myanmar/ Burma or Vladimir Putin in Russia.
So what do these two Supreme Court decisions have in common?
Both courts relied on bad, and by that I mean wrong, history. Alito’s allegation that there was an unbroken legal tradition in the US from British colonial times until 1973 opposing abortion is incorrect according to professional historians. For one thing, what people in pre-modern times even called abortion was ending a pregnancy after the “quickening” at about 18 weeks (4.5 months), when the mother feels the fetus moving in the womb. No one in the 19th century US wanted to outlaw abortion entirely or even at 6 weeks as is now the law in Texas. So Alito’s implication is wrong on the face of it, but he is also wrong that the custom and law did not fluctuate on this issue. Treva B. Lindsey at The Ohio State University points out that pre-quickening abortions before 18 weeks were commonplace and even advertised before about 1850, and that moves to ban abortion entirely began in the 1860s as part of the professionalization of (and monopolization of) medicine by the American Medical Association.
Alito also cites unrepresentative and frankly insane jurists such as Sir Matthew Hale (d. 1676), who had two women judicially murdered for “witchcraft” and wrote a treatise trying to prove that marital rape was an impossibility, what with the husband having complete control over his wife’s body and all. Maybe it is just me, but I think the Founding Fathers were rebelling against people like Hale and rather favored Montesquieu and John Locke, enlightenment thinkers who believed in personal liberties and in limitations on institutions, instead.
The Israeli Supreme Court said that the inhabitants of Masafer Yatta were pastoralists and not strongly tied to that land, so the Israeli Army has a right to displace them. This is the same logic used by US white nationalists of the 19th century to push American Indians off their lands. Pastoralists are people who raise livestock for a living. In the arid Middle East, it requires taking the sheep and goats and etc. to where pasturage pops up, often on a seasonal basis. The bottom of a tall hill that gets some snow on its top in winter, for instance, will have pasturage at its foot in the spring when the snows melt. But pastoralists are not nomads. They typically have a home ground, a broad territory where they are based and to which they return when the pasturage elsewhere dries up. Pastoralists often sow some seeds before they leave and harvest them when they get back. The villagers of Masafer Yatta have been using this land for generations. It isn’t true that they only settled there recently. The Israeli Supreme Court, like Samuel Alito, is cherry-picking history to get the result they want.
Finally, the two decisions involve a small ethnic and gendered elite minority dictating the law and the conditions of life to downtrodden people very different from themselves.
The core of the group on the court determined to overturn Roe are conservative Catholics — John Roberts, Clarence Thomas, Samuel Alito, Brett Kavanaugh and Amy Coney Barret appointed by Republican presidents for this purpose. The Republican Party in Congress is largely male. They are joined by white male Protestant Neil Gorsuch. Only one, Coney Barret, is a woman, and it is clear that her devotion to her cult far outweighs any sympathy she might have for other members of her sex. In any case, 83% of the reactionary majority dictating to women what they can do with their bodies are males, four of them brought up in a patriarchal church that allows no women priests and which outlawed abortion in 1869 for theological reasons.
The millions of women affected by the decision of those 5 arch-conservative men, two of them credibly accused of sexual harassment, do not share these attributes. They are 167 million females. The vast majority are mainstream, liberal Protestants or are secular. The Evangelicals who have succeeded in banning abortion have shrunk in the past 20 years from 24% to only 17% of the population. Catholics are only 22 percent. Only 51% of them, however, say in polling that having an abortion is morally wrong, and Catholics have a higher percentage of abortions than Protestants in the US. So the anti-abortion Catholics are only 11 percent of the population. Thus, 28% of the population conspired to pack the Supreme Court and impose itself on 167 million American females. It is worse, because the most influential men in backing Congressional candidates and then pressuring them to appoint justices to outlaw aborition are a handful of fascist billionaires. In contrast, 59% of Americans believe that abortion should be legal in “most circumstances.”
Moreover, many of the women most severely affected by a ruling against Roe are African-American and Latino, and there is only one African-American woman on the court, who will be overruled by the conservative majority.
As for the 15 justices of the Israeli Supreme Court, only one is of Palestinian heritage. All the rest are Jewish. One is actually an immigrant who is deciding the fate of families in Masafer Yatta who have lived in the area for millennia.
The 3 million Palestinians in the Occupied Palestinian West Bank have no civil or human rights under Israeli law, and can be done with as Israeli officials desire. They are stateless and voiceless. They are occupied.
Likewise, the far right cabal inserted by special interests on the Supreme Court of the United States has deprived American women of their right to privacy and their right to determine their own bodies. These women, too, are Occupied Territory.