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Supreme Court justices and originalism: A legacy of ACEs

 

Just as millions of other people over the last few days, we’re still reeling from the news of the U.S. Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization that overturned Roe v. Wade. One overpowering emotion after another hit us—we’re sad, devastated, numb, livid. So many parts of people’s lives are affected that it’s overwhelming to try to comprehend. It’s not just the 40 million women of childbearing age who live in states where access to abortion will be prohibited, but the millions of women who need an abortion because of health reasons. What happens when you live in a state where the first answer is “NO!”?? And it’s much more complicated and generational than that.

Ingrid Cockhren, PACEs Connection’s CEO, thought about how mothers being forced into birthing children puts those children at risk in so many ways, and the historical context of women being treated as property. Carey Sipp, who is PACEs Connection’s director of strategic partnerships, noted that the most “abhorrent rolling back to the dark ages” aspect of the ruling forces women who are raped and girls who are raped by relatives or friends of family (which are most rapes) to live with the consequences of those horrors with no ability to escape the past. The criminalization of pregnant women and their caregivers. The likelihood of a 33% increase in the pregnancy-related deaths of Black women. We could go on.

“It’s all just bad,” says Rafael Maravilla, our network manager.

In light of the science of positive and adverse childhood experiences, my main question is: What happened to you, Justices Alito, Thomas, Kavanaugh, Barrett and Gorsuch? What happened to you in your childhoods, your formative years, that led you to blithely unleash such cruelty and incoherence? What happened to you, Justices Kavanaugh, Barrett and Gorsuch that you could nonchalantly testify that you regarded Roe v. Wade as established precedent, which meant that you weren’t going to consider overturning it? It’s obvious now that was misleading at best, a lie at worst.

We know what happened to former President Donald Trump during his childhood, and some of what happened to Russian President Vladimir Putin. We don’t know what happened in the originalist judges’ childhoods, but I am willing to venture that they experienced some adversity, otherwise why would they support the concept of constitutional originalism? It’s not an innocent concept. It clearly harms people.

I’ve always said that it’s not a person (with ACEs and few positive childhood experiences) with a gun or knife who does the most damage; it’s the people (with ACEs and few PCEs) who have great power who can do the most damage. And I believe that, as in the case of Trump and Putin, the originalist justices on this Supreme Court not only have great power, but are using it unwisely in a way that is causing great harm. It’s possible that by their actions they don’t mean to do great harm, but that’s a consequence of ACEs and not enough PCEs, too.

Just like the emperor who has no clothes, these judges have no robes. Last week’s opinions on abortion, the Second Amendment, and the separation of church and state are cloaked in originalism, or, more accurately, twisted and contorted into originalism, the constitutional theory that says the U.S. Constitution and its parts must be interpreted as when they were written, not as a living, breathing document that evolves with the times. There are two things wrong with that approach: One, the justices don’t know history and based their reasoning on one error after another, in the case of the recent ruling on guns. And here’s a deep-dive on the fascinating history of abortion, which, when Roe v. Wade became the law of the land in 1973, had been supported by most Americans for centuries. More importantly, did you notice how originalism seems to be code for racism, sexism, homophobia, White male supremacy and authoritarianism?

In Dobbs v. Jackson, Justice Alito said that a right to an abortion cannot be found in the Constitution. I invite you to listen to Ezra Klein’s interview with legal journalist Dahlia Lithwick, who covers the Supreme Court for Slate and hosts the podcast “Amicus”. She explains in simple and elegant language how the 14th Amendment led us to where we are today.

But actually, there’s a really, really robust set of rights that is not in the Bill of Rights. It’s lashed to the sort of liberty interests that are fleshed out with the 14th Amendment.

And what they were doing when they were thinking about the sort of liberty interest protected by the 14th Amendment that the rest of the Constitution didn’t get at, it was the idea that if somebody can rape your wife, you are not free. If families could be separated, if your children could be sold into slavery over your objections, you were not free.

If husbands and wives were treated as chattel and they were economic instrumentalities, but they were not, in fact, a family unit, they were not free. And there’s amazing, heartbreakingly beautiful language about trying to enforce that idea that the cornerstone of freedom is the ability to define what a family is, to marry who you love, to raise children as you see fit.

…the whole line of cases that follows…a whole bunch of cases that have to do with how your children are educated, how they are raised, in some sense, it has its apogee in Loving v. Virginia, the anti-miscegenation case that says you cannot be free if you cannot construct the family that you want to construct.

This line of reasoning led to Griswold v. Connecticut  that allowed the ability to use birth control within marriage, to Roe v. Wade to be able to determine how many children to have and when you will have them, and to Obergefell v. Hodges that gave people the right to marry the person they love, she continued. This was a continuum of humane decisions that expanded the notion of freedom to live an authentic life, to have agency.

And now, with Roe v. Wade tossed out, other “unenumerated” freedoms seemed to be threatened in the concurring opinion written by Justice Thomas in which he said: “in future cases, we should reconsider all of this court’s substantive due process precedents.” Those due process precedents include those that that allow for same-sex marriage, contraception and, ironically, interracial marriage.

So, where do we go from here? We at PACEs Connection have always said we’re in this for the long haul, which, with the recent Supreme Court decisions, seems to have become longer. So be it. We know that the science of positive and adverse childhood experiences teaches us that when practices and policies based on blame, shame and punishment are replaced by understanding, nurturing and healing, we’re all happier, healthier and wealthier. Along with you, we’ll keep pushing to change those antiquated practices, every day, every hour, every minute so that we all have agency.

Lithwick noted that changing the current fix we're in—minority rule over a majority’s wishes—isn’t a court problem. It’s a democracy problem. We need to take a cross-sector approach, both in communities and in issues, to unite to change this situation we find ourselves in, where the minority overrules the wishes of the majority. And, where there are competing interests, to find a compromise.

I’m not inconsiderate of the feelings of people don’t believe in abortion, but Roe v. Wade was an example of a good compromise. It balanced the life of the mother with the life of the fetus. Up to the point where a fetus was viable, the mother’s interest took precedent. After a fetus could live outside the womb, then the state’s interests took precedent. It worked for 50 years and could have continued being the law of the land.

But now it isn't. Yet we have hope.

Martin Luther King, Jr., said, “The arc of the moral universe is long, but it bends toward justice.”

We say: Make life fair.

___________________

Resources:

American Academy of Pediatrics statement, more info in this article.

The Dobbs v. Jackson Decision, Annotated

Politico: The Supreme Court’s Faux Originalism

The Dobbs Decision Isn’t Just About Abortion. It’s About Power.

The Dobbs decision looks to history to rescind Roe. But the history it relies on is not correct.

Originalism, Divided


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Yes, yes, yes. As an aside, what do you think about using “toxic stress” as a way to represent what happens when there’s an imbalance of PCEs to ACEs? It seems to me that the public would grasp that well, if appropriately defined and applied to situations. I want policy makers to begin asking, will this initiative decrease toxic stress? And, how can we measure/demonstrate that?

This was really a cogent and fine article Jane.  Lots of points you mention resonate with me and the current situation (trauma) all of US continue to be in.  I especially applaud: "...where practices and policies based on blame, shame, and punishment are replaced with understanding, nurturing, and healing we're all happier, healthier, and wealthier..." .

With regard to that statement I understand that to be about Democrat values and beliefs.  Those being: Equality; Equity; Fairness; Care; and Protection from Harm.  These values and beliefs are diametrically opposed to Republican values and beliefs.  Republican values and beliefs are: Loyalty (to themselves and their values and beliefs);  Patriotism (the Republican Brand); Respect for Authority (their own authority and those Republican's approve of); and Moral Purity (white standards, beliefs, and values).  Apology because I know this sort of thing continues the "divide" in US however that is where the divide is clearly in US.  All the actions, rules, and policies that relate to what has happened and is happening in Congress, and in the highest court of the land is about the divide and one side is getting their fill  -one side is winning and inserting their values and beliefs all over US...

Republicans secured a foothold in SCOTUS and this has been a goal of the Republican Party for awhile now.  Trump opened the door and ushered that in swiftly and with glee from the applauding Republican Party and their supporters.

That being said, the statement from Lithwick gives me pause. I cannot agree with it: "...Lithwick noted that changing the current fix we're in --minority rule over a majority 's wishes-- isn't a court problem. It's a democracy problem...".   Democracy is a fluid term and Republican's use it to substantiate their own values and beliefs as much as the Democrats do.  We have a values and beliefs problem in US. And yes, indeed, it most certainly is a court problem because the opposite exists in SCOTUS where the majority does overrule the minority!  And this is the system that make the rules actionable over all of US.

I agree that the ACEs of Alito, Thomas, Kavanaugh, Barrett, and Gorsuch have bearing on what they decided, how they decide and how they judge.  It is also what made them Republican . It is also what contributes to their values and beliefs.  It is also what leads them to to decide what's going to happen over all of US.  Judges are people and it's horse manure to say that judges assigned to SCOTUS are immune to their Party's values and beliefs.  They are not immune to their PARTY's beliefs and values as much as their ACEs contribute to how they think and decide upon the laws that will govern all of US.

In looking at the newly approved gun legislation even this demonstrates the power Republicans use to their advantage over US.  I agree, we have to "start somewhere" and this legislation is necessary and glad it has been approved.  However, it is not "bipartisan" simply because it had both political parties agreement and input.  It's not bipartisan at all! It was constructed to appease the Republicans so they would approve it. It was holding Democrats by ransom because anything more (and it needed to be more!) was not going to be approved by the Republicans simply because it does not fit with their values and beliefs about how all of US need to conduct our lives and live our lives.  And, yes, this was a "start" however this will be the end of the matter too if the Republicans have their way with it  --and it appears they will.

I realize this is placing blame and that is antithetical to what has been said in this article.  Nevertheless, the blame is clear to me and has made itself clear over and over in my life.  I see Republicans wanting the whole thing to be about their values and beliefs.  And these have no place in upholding or supporting: Equity, Equality, Care; and Protection from Harm.

Just look at what they are talking about, the books they ban, the information they want kept out of schools, the rights of groups they question, and what they applaud and support. It happens over and over, again and again.  Republicans use ways to cover this up by saying they want government out of our lives, they want the parents to have a voice, they want the States to decide, they want freedom to rein, and to cut taxes and promote trickle down economics.  And each and every time its all smoke and mirrors or double speak.  They want government in their lives when it serves their goals, values, and beliefs.  They want the States and parents to decide because those of their ilk will support the Republican value and belief system --they work to make voting happen in their favor so their force will multiply (or have the lead) in those States.  They like to cut taxes because it will reduce help to those less fortunate and cut services to those most vulnerable to inequity and inequality.  They like to tout "trickle down economics" as if it is something that has ever worked !  They like to throw around that word "freedom" because it sounds good and it makes it sound like what they are doing is about this vague idea of "freedom". Republicans like vague, it confuses people and makes them think you are getting something while it clouds and confuses information/subjects and thereby misleading all of US.

It is a wonder why anyone would vote or support a Republican these days. There really is a good reason for this divide and it is most assuredly about ACEs, abuse, and violence among US.

   

Last edited by Daniel Marlowe

If you are upset about things then you should

VAPE

Vote,

                                       Each and every election.

Advocate,

                                      Speak the truth as you know it.

Participate,

                                       Help the people you support.

Educate

                                        Yourself.

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