The Supreme Court Majority’s Vision for America

Eric Lerner, June 24, 2022

The Supreme Court decision on abortion rights, authored by Justice Alito and supported by a majority of the Supreme Court, enunciates some crucial basic principles that will clearly guide the Court going forward. It’s important to seriously look at the implications of these principles for the future of the United States.

The Supreme Court Majority (SCM) ruling is based on two fundamental principles. The first is that no rights that are not explicitly stated in the US Constitution exist today. The second is that the state has a legitimate interest in protecting “potential life”, interests that may conflict with or override the interests of women involved in gestating such “potential life”. From these basic principles a number of conclusions can be drawn about the SCM’s vison for America, a vision that the SCM is giving state governments the ability to implement.

First of all, once it is accepted that the states can freely pass laws protecting “potential life”, it’s clear that contraception can be banned. Contraception is explicitly aimed at destroying potential life by either preventing a fertile egg from being fertilized, or preventing the fertilized egg form being implanted in the woman’s uterus, so that it can gestate and be born as a human baby. An unfertilized egg is just as much a “potential life” as a fertilized egg, as both have the potential, given other circumstances, of developing into a human baby. Indeed, 99% or more of the fertilized egg’s substance comes from the unfertilized egg. It is of course this simple logic that has motivated the Catholic Church’s opposition to both contraception and abortion, as both interfere with what the Church views as woman’s sacred role in creating new human life.

But it is not just contraception that can prevent the development of the potential life inherent in the egg that every fertile woman produces every month. If a woman refuses to engage in sexual intercourse with a willing man, she is also destroying potential life. If she refuses during her fertile period for a given month, the egg—the potential life—is destroyed during the menstrual cycle. Thus it is clear that the SCM’s logic allows states to protect “potential life” by prohibiting women from refusing sex.

If a woman does not have a “right to choose” whether or not to have a baby, how does the Constitution guarantee her the “right to choose” whether or not to engage in sex? While radicals and socialists might claim that women have to give consent for sex, as in the “Me,too” movement that so alarms conservatives, the Constitution does not mention such a right. Indeed since the Constitution does not even contains the word ”woman” or “women” the SCM’s argument about “explicit rights” implies that the US Constitution conveys no rights at all to women.

Thus, states could make it a crime for a single, non-pregnant woman during her childbearing years, say 12-50, to refuse any man’s offer of vaginal sexual intercourse, since such a refusal destroys a potential life. Similarly, married women would commit a crime by refusing their husbands’ offer of sex.

Such laws, if adopted by the states, would undoubtedly have many benefits in the eyes of the SCM and their many supporters. They would immediately eliminate prostitution, since no one would have to pay a woman for consent for sex, when consent could not be legally refused. The often homicidal rage of the so-called “incels” or ”involuntary celibates” would disappear, as no man would ever have to be involuntarily celibate. To have sex with any single young woman, he would just have to offer it and she could not legally refuse.

With no need for female consent, no contraception and no abortion, of course the birth rate would increase dramatically, overcoming the very real threat of population decline and more than compensating for large increases in maternal death due to constant pregnancy. Marriages would certainly increase, and divorces, at least those initiated by women, would decrease given the advantages of being obligated to sexually serve only one man, not any man.
There would be economic benefits in the SCM’s view as well. The current upward pressure on wages which so concerns the Federal Reserve would disappear, as men and women with large numbers of children would be desperate to take any jobs for any wages to prevent starvation.

Of course, as the SCM points out, societies’ interests in protecting potential life have to be balanced against societies interests in having economically productive women. Certainly, some substantial fraction of women, perhaps 10- 30%, may have to be granted exemptions from compulsory pregnancy in order to get an education and participate in professions that require educations. The SCM would no doubt say that to fairly decide, in an unbiased way, which women get these exemptions, the decisions would best be left to the free market. After all, a similar majority has made decisions like Citizens United that allow the free market to decide elections, so why not reproductive privileges as well?

In such a free-market system, the states could auction off a limited number of Reproductive Exemption Licenses that would allow the holder the right to refuse sex, access to contraceptives and access to abortion so that they may have the time to pursue educations. The right to educational access could be, for simplicity, bundled with these licenses, as those busy with continuous pregnancy and childrearing will certainly have no time for education. (Again, the Constitution nowhere guarantees the right to an education to anyone, men or women, and the large number of children produced by these laws would certainly render a free public education system completely unaffordable to the states.)
Those women who have the most economic value to the society (the most wealth) would simply purchase the license for themselves. Men with adequate finances could purchase unlimited numbers of licenses and give some as free gifts to their daughters or other women in their families. They could also give such licenses to unrelated women, in return for the women’s performing some contractually specified services (sexual, economic, etc.).

To ensure the maximum economic efficacy of such licenses, a secondary market for them could be set up, so someone holding a license for a specific woman, who later no longer wants her services, could re-sell the contract to others at a free-market price. The state could set up such markets. Since they would confer exemptions for women’s scared duty to procreate, the markets could be termed Holy, Authorized Reproductive Exemption Markets, or HAREMs for short. Like the cryptocurrency market, such new markets could become vehicles for new wealth accumulation (at least for the wealthy.)

Some readers may suspect that this essay is merely an effort at satire. They would be right IF, and ONLY IF, out of this situation arises a movement as determined to defend women’s rights as the abolitionist movement was to defend the rights of those fleeing slavery after the Supreme Court’s Dred Scott decision. Just as that movement recognized that the enslavement of African-Americans threatened the rights of working people everywhere, so today, we must recognize that threats to reduce women to slavery threatens the basic rights of all. And just as the abolitionist movement defied and broke the slave-catchers laws, any movement to defend women’s right must be willing to defy and break the anti-abortion laws as well. Finally, any such movement would have to aim at overcoming the billionaires’ use of anti-abortion and attacks women’s rights to pit worker against worker, just as past movements overcame similar uses of racism and religious bigotry. This movement must send the Democrats, the Republicans, the Supreme Court and the other tools of the billionaires, as well as the billionaires’ system itself, into the dustbin of history where they belong.

But if the SCM’s rulings are meekly accepted as the law of the land, and trust is placed in the existing political parties to defend the rights of all, this essay will not at all be satirical, but a cold sober description of mid-21st century America.