ALITO ON ABORTION--COGENCY, CATHOLICISM, AND THE SUPREME COURT

    The reaction to Justice Samuel Alito’s draft opinion has created a great stir, of course.  Abortion is probably the most contentious issue since the issue of slavery, which led to the Civil War.  Every SCOTUS decision on abortion has been important; one based on his opinion would be unprecedented in reversing a precedent identifying a Constitutional right, to abortion no less.  The expected reversal of a 50-year ruling coincident with a change in the political composition of the Court is calling into question both its judicial independence and its political legitimacy.  For many people, the reaction depends on whether they like or dislike the decision or its consequences.

 

From a legal perspective, the answer to any question about the Court’s legitimacy depends upon the cogency of its opinions, and the considerations which constitute them.  It requires a reading of Blackmun’s opinion in Roe v. Wade and Alito’s draft opinion.  Blackmun’s is a disgrace; Alito’s in Dobbs is a greater one.  Alito’s lacks cogency in its flawed arguments and religious bias--not the bases of an opinion capable of legitimacy.

 

Alito’s first paragraph shows both deficiencies.

 

Abortion presents a profound moral issue on which Americans hold sharply conflicting views.  Some believe fervently that a human person comes into being at conception and that abortion ends an innocent life.  Others feel just as strongly that any regulation of abortion invades a woman’s right to control her own body and prevents women from achieving full equality.  Still others in a third group think that abortion should be allowed under some but not all circumstances, and those within this group hold a variety of views about the particular restrictions that should be imposed.

 

First, Alito’s division of those holding opinions on abortion is fundamentally flawed.  Instead of dividing different beliefs on the same moral principle—when life begins—, Alito divides different groups defined by different kinds of principles.  The three groups are not mutually exclusive.  A person can believe what “some believe,” “others feel,” and “still others think.”  Indeed, many people are conflicted because they have more than one of these beliefs.  Alito’s muddled division dishonestly misrepresents the complexity of the controversy over abortion—not the basis of an opinion capable of legitimacy.

 

Second, Alito’s selection of one belief, his Catholic belief, among many about when life begins is gravely flawed by its biased exclusion of different beliefs held by others.  Many Christians, and most or all Muslims believe life begins at quickening; some Christians and all Jews believe that it begins at breach.  Alito’s exclusion of others’ beliefs reflects the Catholic presumption of doctrinal superiority or, on the flip side, Catholic contempt for non-Catholic beliefs—not the basis of an opinion capable of legitimacy.

 

If this much can be said about the first paragraph of Alito’s draft opinion, obviously, much more can be said about the defects and deformities in its remaining 68 pages.  One thing I believe certain: if anything like this opinion prevails, the legitimacy of SCOTUS will be impaired for at least a generation, until it is reversed or overcome by federal legislation or Constitutional amendment.  Until then, it will be a target of criticism and scorn.  Alito’s denigration of Blackmun’s opinion will be nothing compared to the disparagement of his.

 

Answers offered to the question of the Court’s legitimacy are focusing on the role of religion both in the issue of abortion—I have argued that abortion is a First Amendment right—and on the thinking of the justices in the majority who will decide Dobbs.  Coming into focus, not for the first time, is that Catholicism is antithetical to democracy.  The conservative Catholic judges, who have been expanding and extending religious rights have been doing so at the expense of the Constitution’s structuring of a democratic civic society.  Now, in an invulnerable majority, they are working to turn American pluralistic democracy into a Christian theocracy embraced by Catholic and evangelical Christian churches—churches recently notorious for patriarchy, the subordination of women, and the sexual molestation of men, women, and children.

 

Shocking to me is the widespread and energetic efforts of these and other Americans to degrade themselves and debase the ideals of this country, all the while projecting their abominations onto others.  Justice Thomas’s hypocritical sneers at those who he says cannot accept decisions contrary to their liking perfectly express his long-festering detestation of decisions contrary to his liking and now his ill-concealed jubilation at his chance at revenge by reversing precedents which he detests.

 

There is no way back, at least not soon.  This SCOTUS erosion of democracy—many of its decisions are impairing free and fair elections—culminates decades of concentrated effort by the religious right to repeal the modern, secular, pluralistic world.  Abortions is just one battle in its war.  Its tactics and tone have affected—infected may be a better word—at least two generations.   Many on the Left and on the Right, whatever their political or religious persuasions, have grown up rigid ideologically and hostile politically and personally to those with whom they differ.  For example, Woke and Racism are opposite sides of the same coin of intolerance of and insult toward each other.  The loss of respect and decency, the foundations of democracy, cannot be recovered if they were never part of one's upbringing.  What remains is bigotry and barbarism, now authorized and empowered by a conservative Catholic Supreme Court.

DOES LAS CRUCES HAVE THE WORST CITY GOVERNMENT IN NEW MEXICO?

The question is worth asking, but no answer has a fair basis for comparison.  City governments are good or bad in different ways—which makes comparisons and rankings meaningless.  That said, the Las Cruces city government is bad enough when it comes to the budget, police, and public safety—the latter a priority of most city governments.

 

The Administration has the wrong people in critical positions.  City Manager Ifo Pili is amiable, and his agenda is amiability.  However, for anyone in his position, an agenda of amiability is a professional flaw.  It leads him to tolerate the corrupt, the incompetent, and much besides.  It leads him to do little leading.

 

Otherwise, Pili would recognize that he was played for a fool by City Attorney Jessica Vega-Brown’s advice to appoint Miguel Dominguez Chief of Police.  She wanted a police chief neither smart, sensible, nor strong; one easily malleable, with neither moral nor professional standards to guide him.  For example, when he took office, he touted his commitment to transparency and accountability, with his picture prominently displayed on a new transparency web page.  But, when an officer killed Sra. Amelia Baca, a non-English-speaking, 75-year-old woman suffering from dementia, he instinctively resorted to opacity and deceit.  For a week, he said little but approved a deceptively edited and scripted video of the episode.  (Did Deputy Chief Kiri Daines initiate it?)  He dissembled to the public to shift blame from officer to victim.  He did not deplore the loss of life—a sign that he does not care about the loss of life.  As the City Attorney’s guy, this travesty of a public servant indicates the nature of city government in Las Cruces.

 

Its Mayor and six members of City Council are clueless, incompetent, or dishonest when it comes to thinking about how budget decisions can address the city’s problems.  They just passed the city budget, with about $7.2 million to cover liabilities.  Yet they knew that this budget item would likely be insufficient to cover the city’s liabilities in the budget year.  The settlements for police maimings and killings alone are likely to blow a hole in it.  Which means cuts in basic services made, not in the budgeting process, but later when no one is watching.

 

They knew that the city recently paid $6.5 million to settle the suit against Officer Smelser for the second-degree murder of Antonio Valenzuela, who had minor charges against him, fled arrest, and resisted until choked to death.

 

They knew that the city is likely to pay many more millions to settle a suit against a yet unidentified officer for shooting and killing Sra. Baca.  The episode was so damning that the LCPD doctored films to mislead the public by making the killing look justified.

 

They knew that the city is likely to pay many thousands to settle a suit against a yet unidentified K-9 officer for unleashing a German Shepherd on a suspect of minor crimes in custody, letting it tear the suspect’s arm to bloody shreds, and amusing other officers.

 

The Mayor and the six City Councilors knew that money for large settlements does not come only from that the insufficiently budgeted line item for liabilities.  They knew that it does not come from claims against insurance policies to make up the deficit.  They knew that the city has no liability insurance because of high insurance rates or insurers’ refusal to issue policies.  The reason: “pre-existing conditions”: violence-prone LCPD officers causing unjustifiable body damage and deaths, which prompt costly settlements.

 

The Mayor and the six City Councilors knew that money for large settlements comes partly from the funds budgeted for liabilities during the budget process and, during the year as necessary, partly from the General Fund, which pays for basic administrative and operational government functions.  For political reasons, the Mayor and the six members of City Council do not want an honest budget because they do not want to signal how serious the city’s liabilities might be or to identify and publicize possible reductions in core services like fire and police, public works, etc.

 

The Mayor and the six City Councilors show their idiocy and incompetence by repeatedly covering police misconduct with costly settlements of no benefit to the city and fewer benefits to its citizens.  They do not imagine that money invested in better policing has benefits: increased public safety and reduced settlement costs.

 

Imagine, instead of wasting $6.5 million to settle Mr. Valenzuela’s family’s suit, using it to improve police performance.  Use $2 million, or 0.4%, of a $505 million budget, for raises of $10,000 for all 200 LCPD officers—a pay scale apt to attract better candidates and retain better officers.  Link higher salaries to higher standards for hiring and retaining officers: among others, 4-year college degree with a law-related major, facility in Spanish and English, demonstrated psychological fitness as a condition of hiring and retention.  Use the remaining $4.5 million for bonuses, better training, better equipment, and upgraded facilities.  Imagine adequately funding the LCPD to get better results.

 

The Mayor and the six City Councilors imagine nothing of the sort.  The Mayor, who waves the LCPD banner—P. R. I. D. E.—for everyone to salute, lacks the wit and the will to reform the department.  Councilors, who have talked perfunctorily about police reform, fear that linking higher salaries and higher standards would anger police.  For higher standards would imply dissatisfaction with the police and require painful departmental reforms and officer effort.  Instead, everyone in city government prefers to continue business as usual by tolerating traditional LCPD corruption and incompetence.  The loss of a few peoples’ lives or limbs is a small cost to resist change and maintain everyone’s level of comfort.

 

When it comes to ranking city governments in New Mexico, Las Cruces is rank.  Since the government reflects the electorate, which elected six Progressive councilors, citizens, especially Progressives, are no less rank. 

NO LYNCHING: THE SUPREME COURT ISSUES HUNTING LICENSES

 [NOTE: Please forgive another blog so soon after one, but I wanted to say two things relevant to the last mass shooting in Buffalo, NY.  One is that the FBI is still not taking domestic terrorism seriously; I suspect that some--that is, too many--agents sympathize with white nationalist groups.  The other is the blog below.]

       The Second Amendment, as interpreted in Justice Anton Scalia’s opinion in the Supreme Court’s 5-4 decision in District of Columbia v. Heller (2008), extends the right to own firearms to individuals not in a “well regulated militia.”  Scalia identified himself as an originalist—that is, one who reads the Constitution as it was presumably intended to be read—in matters of its legal interpretation.  He was nothing of the sort.  He was a robed hypocrite who interpreted the Constitution to serve his political proclivities.  He should be regarded as the patron saint of the gun violence which has metastasized throughout the country and left cities and states powerless to protect their citizens.

His opinion is an abomination.  The Second Amendment is brief: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be abridged.”  The first thing to say about this amendment is that its “original” circumstances no longer exist and make it obsolete, though an “originalist” interpretation would have to limit itself to those circumstances.  The amendment arose from frontier conditions.  Settlers on the frontier, fearing that a remote government could not defend them from marauding natives, demanded militias so that they could defend themselves.  The Constitutional Convention required them to be “well regulated” not because unregulated they would be ineffective, but because unregulated they could become dangerous, with armed mobs becoming a threat to “ordered liberty” (Justice Samuel Alito’s favorite phrase).  Moreover, the Convention knew that, in their defense, states operated independently of one another and relied on themselves individually.  States maintain them today, well regulated, as National Guards under the command of state governors to serve state needs.  Only when the country declares war are they federalized in defense.

 

The second thing to say about the amendment is that, per grammar, the introductory absolute construction phrase defines the context of—in this case, places a limit on—what follows.  The implication is obvious: as a Constitutional right, people may own and use arms for the purpose of public defense as part of an organized military body.  The amendment is silent about, but does not deny, ownership and use of firearms for other purposes—which were not issues.  However, it does not affirm ownership and use of firearms for other purposes as a Constitutional right.  It leaves to the states the right to exercise or delegate to cities the authority to regulate whatever pertains to firearms for purposes of safety in businesses and residences, and recreational activities like hunting and sport competition.  On this understanding, federal and state governments permitted or restricted firearms depending on their non-military purposes.

 

However, by recently curtailing the right of states and cities to regulate whatever pertains to firearms, the Supreme Court has allowed the manufacture, distribution, sale, and use of weapons with no defensive purpose to protect a state, its cities, businesses, and homes.  Storekeepers, homeowners, hunters, and competitive shooters have no use for armor-piercing or dum-dum ammunition, high-capacity magazines, or rapid-fire handguns and rifles.  These are features of offensive weapons intended to kill people and for no other purpose.

 

What people?  Obviously, drug dealers and gang members use them in their nefarious operations.  Quasi-patriotic paramilitary groups use them in training for fantasized apocalyptic showdowns with the Forces of Evil.  The latter merge into various extremist groups with strong xenophobic, racist, and antisemitic tendencies.  White teenage males under the influence of Fox mythologies use them to prevent their replacement.  (Frankly, I favor the replacement of those who fear it.)

 

The result is an increasing number of casualty-inducing attacks mostly on blacks and other minorities in churches, businesses, movie theaters, and malls.  Weapons like AK-47s, which have no rational purpose in civilian life, are the modern equivalent of ropes used for lynching.  Justice Scalia’s interpretation of the Second Amendment, upheld and extended by subsequent Supreme Court decisions, makes it a hunting license for Whites to kill people of color, Muslims, and Jews.  Despite the carnage, the Catholic conservative Supreme Court justices appear satisfied with the termination of Black, Brown, and Yellow Lives, Which Don’t Matter.  Were such firearms used to kill large numbers of whites in mass shootings, the Supreme Court would hasten to reverse precedent by interpreting the Second Amendment as its “original” circumstances defined its meaning.

ADVISORY ON RELOCATING TO LAS CRUCES: LOCAL POLICE PUT LIVES AT RISK

Much goes into a decision to relocate, but the attitude of local government toward its citizens and its commitment to public safety should count for something.  In Las Cruces, if you are White, you are likely all right; if you are Brown, you risk going down.

 

Despite what maps show, Las Cruces is located 40 miles south, not north, of El Paso—culturally speaking.  In matters of law enforcement, the city is corrupt and incompetent.  Its officials are dishonest and contemptuous of its citizens, and its police officers are dangerous.  The Mayor, City Councilors, City Manager, City Attorney, LCPD Police Chief and other ranking officers enable police misconduct, from harassment of citizens with phony allegations of traffic or code violations to killing or maiming them.

 

These officials have no regard for public safety.  They respond to complaints about phony charges or officer brutality with lies, false assurances, broken promises, or illegal conduct; resist admitting, deny, whitewash, or conceal police misconduct; and talk reforms without effecting them or pass policies without ensuring their enforcement.  So police misconduct enabled from above is not surprising in Las Cruces, with its officials indifferent to civilizing influences like the rule of law.  Fish rot head first.

 

A recent incident in the city’s history of cops running amok is the cop-killing of Sra. Amelia Baca.  Sra. Baca was 75 years old, suffered disabilities including dementia, and neither spoke nor understood English.  A family member called 911 to get her medical attention because she was threatening family members with knives.  A police officer arrived; in 40 seconds, he let them leave the house; ignored cautions about her condition and ignorance of English, and pleas not to shoot her; and killed her with two shots.

 

This incident reflects the culture of city corruption and incompetence from top to bottom.  City officials reacted to this violent incident by choosing to mislead the public with a deceptively scripted and edited PR presentation of body-camera footage stopped just before the moment of killing.  Reflexively, they defended the officer, whose identity remains unknown, by making it appear that the victim threatened great bodily harm to an officer doing his duty.  They meant to bias the public and taint the jury pool.  The Police Chief expressed confidence in the killer; the City Manager expressed confidence in the Police Chief; the Mayor, who thinks that anyone who does not support, trust, and love the police is unpatriotic, was disconcerted.

 

Under pressure, the city released redacted footage of the entire incident.  Version 2 proves the misrepresentation of Version 1.  It shows that Sra. Baca moved the knife in her left hand to her right hand, which held a second knife; held both knives pointing down; smiled at the officer and waved to him with her empty left hand; and stepped forward.  At this point—does the still redacted footage here show Sra. Baca dropping the knives?—the officer, who had been repeatedly shouting a profanity and order (five times “put the fucking knives down”), fired two shots and killed her.  From the start, he made no effort to de-escalate, was confrontational, and killed Sra. Baca only because she did not obey loud and angry shouts which she did not understand from a menacing officer.

 

City officials, advised by its damage-control official, the City Attorney, fear three things.  One is bad publicity.  The trial and likely conviction of a de-escalation-trained, veteran officer for first-degree murder will be sensational news.  Two is public exposure.  The trial will reveal the officials misrepresenting the incident and their contempt for the public; until then, concealment.  After consulting with the City Attorney, the City Clerk implies that the city has no records about who initiated, supported or developed, or approved Version 1.  Three is big costs.  A recent settlement cost for a chokehold killing was $6.5 million.  The settlement cost for this two-shot killing may exceed $10 million.  Instead of paying more for insurance, the City Manager should use the money and work harder to improve the LCPD, which, in a well-managed city, should be able to do better.

 

But it cannot.  It has policies and programs, but corrupt and incompetent leadership make them meaningless and ineffective throughout the police department.  The Police Chief unwittingly admitted his impotence when he echoed a joke in commenting on the current situation.  Old joke: a restaurant review that the food was bad and the portions small.  The Police Chief seemed disbelieving even in reporting that the killer cop had had more than the mandatory 70 hours of de-escalation training.  New joke: his creative riff implied that the training was bad and more of it made the results worse.

 

Another way to understand the current situation is to understand how Las Cruces responds to police incidents.  After the cop-killing of George Floyd in Minneapolis, Las Cruceans protested for several days at a major downtown intersection not far from LCPD headquarters.  City Council convened to discuss proposed “8 Can’t Wait” police reforms; a media-addicted Councilor spoke strongly about the need for reform and did nothing.  But no Las Cruceans protested the cop-killing of Sra. Baca.  At the time, no city officials, including four Latina Council members, expressed any sympathy for the loss of life or condolences to the family for the loss of their mother or grandmother.  In Las Cruces, forget about Black Lives Matter (or White Lives Matter); Brown Lives Don’t Matter.

 

If a problem exists elsewhere, it is a problem; if it exists here, it is a different one.  I imagine that City Council will get involved.  First, media-addicted councilors will propose a resolution deploring citizens who obstruct the flight of police bullets or thrust bloody arms into the mouths of K-9 German Shepherds, as in an incident a few days later.  Then, Council will pass a policy against such citizen misconduct because it costs the city too much money.  With pay-outs for penalties or settlements rising, insurers will either raise rates or drop coverage, because of LCPD’s “pre-existing conditions,” that is, officers over-protecting themselves or administering “street justice” by killing or maiming citizens.  Finally, Council will justify itself by explaining that the city cannot let itself be victimized by low-lifes (citizens) trying to get rich quick (seeking financial compensation) merely because they suffered grievous loss of loved ones or bodily harm from violence-prone officers doing their jobs according to LCPD’s traditional police practices.

 

If you are thinking of relocating to Las Cruces, where living is cheap and life is cheap, my advice is be white, be rich, and buy an expensive house east of Interstate 25 and south of U.S. 70.  Residents there, if they call for help, have a fair chance of surviving a police response, especially if they can arrange to have their doctor or lawyer arrive first.  However, just to be safe, think about staying put or relocating elsewhere.

THE RIGHT TO AN ABORTION: RE-CONSTITUTIONALIZING THE DE-CONSTITUTIONALIZED

To re-Constitutionalize the right to an abortion de-Constitutionalized by Alito’s opinion, abortion rights advocates need to understand something about the legal morass of the issue.  Despite their diametrically opposed positions on a woman’s Constitutional right to an abortion, Blackmun’s and Alito’s opinions—the former adopted in 1973, the latter drafted and disclosed in 2022—share the same fundamental fatal flaws.  If the courts amended them, the right to an abortion would be the law of the land.

 

The first flaw shared by both opinions is their shoddy arguments.  Most, but not all, of their defects have been recognized from the moment of their publication, licit or not.  Two notable legal scholars who criticized Blackmun’s opinion at the time were Ruth Bader Ginsburg and Lawrence Tribe.  Abortion rights advocates pleased with Blackmun’s opinion have been indifferent to his defective reasoning supporting it by substituting medical science for religious beliefs as the decisive criterion for access to abortions.

 

Many scholars have already criticized Alito’s opinion for its biased selection of facts and biased interpretations of the (legal) history of abortion.  Abortion rights advocates, displeased with Alito’s answer have stressed the adverse consequences of his opinion, if adopted: threats to other rights not explicitly enumerated in the Constitution, erosion of democratic principles and practices, and widespread social unrest and violence.

 

Their second flaw is their mistreatment of religion.  Blackmun’s opinion does not ignore religion; it summarizes culturally and historically diverse moral, philosophical, and theological views on the beginning of life and its relation to abortion.  But it dismisses its summary by claiming that the case did not ask the Supreme Court to answer the question which no one had answered decisively.  This statement is entirely correct and at the same time egregiously wrong.  The Court did not have to answer the religious question about when life begins; it had only to recognize first that it was a religious question and second that diverse religious answers to that question are protected under the First Amendment in its two provisions, one for the free exercise of religion, the other from an establishment of religion.  Instead, Blackmun sought a Constitutional right to an abortion in penumbras of penumbras of other Constitutional provisions—an effort which distracted Blackmun and has since distracted legal scholars from the religious nature of opinions about when life begins and abortion is permitted.

 

Alito’s opinion omits religion in favor of a purported history of abortion in Anglo-American law.  This omission reflects his determination to avoid religion because he knows that it works against him.  His discussion of legal opposition to abortion, which he traces to the 13^th century, fails to cite any court decision or government law that defined it as a criminal offense.  There probably is none.  No royal, ducal, or baronial court dealt with abortion; it fell under the auspices of the Catholic Church, which either ignored abortions or issued mild verdicts and imposed modest penances.  Later references to “common law” and characterizations of abortion as “criminal” do not reflect civil law, only the opinions of 17^th and 18^th century commentators like Coke and Blackstone.

 

But the clearest case of willful disregard of religion because it works against him is Alito’s implied ignorance, amounting to dishonesty, about quickening.  Alito states, “The original ground for drawing a distinction between pre-and post-quickening abortion is not entirely clear”; he adds that some attribute “the rule to the difficulty of proving that a pre-quickening fetus was alive” (p. 21).  For sloppy reasoning, the second clause, the relevance of which is dubious, assumes the conclusion, or begs the question, that life properly inheres in some earlier stage of gestation.  Until the 16^th and 17^th centuries, quickening was the accepted Catholic definition for the beginning of life because of the doctrine of “ensoulment.”  The doctrine maintains that quickening results from and signifies God’s implantation of a soul in the fetus; until that moment, the fetus is not a life.  Difficulty determining life was not an issue.  Then, Catholic theologians began to argue that life begins at conception—an argument which became doctrine in the mid-19^th century.  Alito’s discomfort is that the Catholic doctrine of his faith changed definitions of the beginning of life—an “entirely clear” and undeniable fact that the beginning of life is a matter of religious definition.

 

What would an honest judge do when faced with a “right” answer but a shoddy argument in its support.  An honest judge would seek a well-crafted argument as a substitute.  In the case of abortion, that argument would find the answers to the question about the beginning of life, and practices based on those answers, to be diverse, religious in nature, and thereby explicitly protected by the First Amendment—game, set, match.

 

•.     •      •      •      •

 

The consequences of such an opinion, except for scattered protests and sputtering terrorist attacks, could end the long-simmering, now inflamed, legal controversy about abortion.  Some, like Justice Thomas, the arch-hypocrite himself, who, to paraphrase his words, would object to an opinion which they do not like, would continue to grumble.  But without a nearly unending succession of legal cases to galvanize it, the anti-abortion movement would lose its momentum.  Something like domestic tranquility could prevail.

 

Alito’s complaint that Blackmun’s opinion had “damaging consequences” invokes a standard which would apply with a vengeance if his opinion prevailed because it would endanger other rights.  Alito pretends that this decision, claimed to be unique as a life-or-death matter, can be walled off from other decisions is disingenuous at best.  His idea that “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion” is absurd; no decision about terminating a pregnancy precludes the decision as a precedent and the use of its arguments in other cases before the Court.

 

Others have noted that Alito appeals exclusively to rights either explicitly stated in the Constitution or, if among its unenumerated rights, only those rooted in American history and tradition.  They have cited some half-dozen other grounds for such rights.  Alito’s reliance on only history and tradition makes the Constitution a straight-jacket on the American people.  His opinion imposes narrow, straight, white, Christian history and tradition on all others.  It stops time and puts it in reverse.  It ignores more than the Constitution’s amendment process to allow the country to adapt to changing circumstances.  Alito would resist and reverse change.

 

If Alito’s opinion prevails and the Supreme Court revokes the Constitutional right to an abortion, all is not lost.  Several states have or will pass constitutional amendments or enact legislation establishing the right to an abortion.  Regrettably, their restrictions will still violate the religious freedoms of more people than they will serve.  Moreover, advocates can bring cases against abortion restrictions because they violate First Amendment rights extended to the states under the Fourteenth Amendment.

 

Allow me to get up close and personal on this point.  The only Justices of the Supreme Court who will vote for revocation are all born Catholics.  They have made clear that they favor religious beliefs and practices close to their Catholic ones.  By revoking the Constitutional right to abortion instead of revising the argument better grounding that right in the Constitution, they impose or allow the imposition of Catholic (and compatible evangelical Christian) doctrine on everybody else.  So now is the time to call them to account.  They should be challenged whether their concern for religious beliefs and practices extends to the different beliefs and practices of others.  They should be challenged whether any legal definition about the beginning of life, with implications for abortion, does not deny the religious freedom of those whose religions have different definitions and constitute a government establishment of (Catholic-compatible) religion.  Finally, they should be challenged to show that any such definition does not also double as an expression of historical and traditional Catholic antisemitism.  I am content for Jews to serve as the canaries in the cage to detect the debasement of or departures from the Constitution.

 

•.     •      •      •      •

 

A personal note on my involvement with the abortion issue.  As readers of my fortnightly columns for the Las Cruces Sun-News and my blogs since know, I have written about the abortion issue over a half dozen times.  My first goes back a dozen years, to 2010.  When my interest in the issue arose, I, as a scholar, did what scholars do; I went back to the text of Blackmun’s opinion—no media summary for me.  I had known that his opinion had been widely criticized as poorly reasoned.  I discovered something which I have regarded as its fatal flaw, something overlooked by all: its failure to recognize the religious nature of the issue and its recourse to medical science to resolve the issue.  Simultaneously, I realized that diversity of religious beliefs and practices about abortion justified a right to an abortion, not by some hard-to-find right found by reading between the lines of the Constitution, but by the rights stated clearly in the First Amendment.

 

The position which I discovered and developed for myself had been anticipated by Justice John Paul Stevens at the time of Blackmun’s opinion.  In 2015 or 2016, I called Linda Greenhouse, a Constitutional scholar at Yale and fortnightly contributor to The New York Times, and asked her about my abortion-is-a-First-Amendment-right thesis.  She was startled by it because it prompted her to recall Stevens’s opinion, forgotten by her and everyone else.  With confirmation that I was not deluded, I contacted various groups which I assumed would be interested in this thesis as a Plan B if, as seemed likely, the right to an abortion continued to be whittled away.  I contacted ACLU, NARAL, NOW, and Planned Parenthood, to no avail.  None returned my calls or read my paper.

 

I generously concluded—other conclusions are possible—that the abortion rights community was so committed to the 1973 and 1992 cases that it feared that a different argument for the right to an abortion might divert resources from support for Plan A.  With Alito’s opinion likely to prevail, reverse precedents, and revoke a Constitutional right, people are suddenly recognizing or revealing an understanding that, after all, the issue is a religious one.  The fear of undermining these rulings explains why, until now, rabbis have not made public the Jewish position on the beginning of life, the moment of breach, as a criticism of any effort to decide or legislate against abortion.  Such are the deficiencies of group-think, with the result that these organizations have let down the side.  Now, late but, I hope, not too late, the abortion rights community seeks a Plan B.

MAYDAY! MAYDAY! POLICE AND COUNCIL THREATEN PUBLIC SAFETY IN LAS CRUCES

Listen up, you people.  You are getting what you are letting: vicious maimings and violent deaths of local Hispanics.  Even Progressive Hispanic leaders like Councilor Kasandra Gandara and Johana Bencomo are cool with dangerously bad policing so long as the former can run for mayor and the latter can get media exposure.  The difference between police officers and city councilors: proximate and remote threats to life or limb.

 

Let’s look at the record during their time in office.  In February 2020, LCPD Officer Christopher Smelser used a contrary-to-policy chokehold to kill—“I’m going to fucking choke you out, bro”—Antonio Valenzeula after he ran from a traffic stop—a traffic stop.  In November, a local headline read, “Las Cruces City Council discusses police reforms after $6.5M death payout.”  There is more.  “As part of the $6.5 million settlement, the city has agreed to adopt numerous policies, including:

 

• Banning all forms of chokeholds
• Requiring officers to intervene if they witness an "unconstitutional use of force" by another officer
• Bi-annual de-escalation training for every officer
• Bi-annual training in empathy and racial bias for every officer
• Requiring all uses of force to be reported, investigated and stored under the length of time required by the New Mexico Retention of Records Act
• A red flag warning system to track use of force
• Requiring the Las Cruces Police Department to report all uses of force to the Las Cruces City Council every six month[s]
• Requiring officers to have a mental health exam on an annual basis with a licensed psychiatrist”

 

Numerous policies: does anyone know whether the city adopted them?  Police reforms: does anyone know which were discussed or which, if any, approved?  Does anyone want to bet on compliance with them or their enforcement?

 

Odds are bad.  City Council rejected the opportunity to examine practices as opposed to policies in my case.  Gandara and Bencomo knew all about it but led the opposition to including my case in the police audit because government officials wanted a whitewash.  The auditor, silent about enforcement, liked LCPD policies.

 

In the past 10 days, an LCPD officer, presumably given the “Bi-annual de-escalation training for every officer” and “Bi-annual training in empathy and racial bias for every officer,” killed a 75-year-old woman suffering from dementia because she did not obey shouted orders to put down her “fucking” knives.  Then about a dozen armed officers ordered a man to show his “fucking hands” and get on the “fucking” ground—“fucking” used about a dozen times in the encounter—and, despite a requirement “to intervene if they witness an ‘unconstitutional use of force’ by another officer,” did nothing while a K-9 handler let his unrestrained dog attack and maul their compliant prisoner.  The City is in for at least two, multi-million-dollar settlements and a two more agreements to “adopt numerous policies.”  Council loves policies but leaves compliance or enforcement to chance.

 

If I could make only one police reform, it would be to abolish the word “fucking” in the LCPD; it seems to trigger deaths or maimings in violation of policies.  No “fucking,” fewer civilian casualties.

 

If I could fire people, I would fire Chief of Police Miguel Dominguez first.  He has repeatedly demonstrated that he suffers from managerial incompetence.  Nothing in his previous career in police administration prepared him for a leadership position.  He has neither the skills nor the temperament to lead.  Leadership confuses him.  So he is uncertain about his responsibilities to the public but reflexively protective of the police.

 

We should have known as much when, as Deputy Chief of Police, he spoke at a City Council work session on 15 June 2020.  Council was addressing the “8 Can’t Wait” proposals and wanted the LCPD opinion on them.  In response, Dominguez made an appeal for understanding and sympathy.

 

“Our officers are professionals.  ... We will respond to your calls without fail.  We know that there’s a lot of mistrust out there.  We want you to know you can count on us.  We are all professionals doing a tough job.  We are not perfect.  We make mistakes.  We will own up to our mistakes.  We love Las Cruces.  We are a tight community.  We are Las Cruces.  We are here to back you up.  Please reach out to us and know we are a professional organization.  We really do care about our community.”  (Las Cruces Sun-News, 17 June)

 

Is this not laughable?  Is this not embarrassing?  What the public thinks is shameful the Mayor and Councilors find honorable.  They want the bullshit of comforting, empty pieties from their police chief: “We own up to our mistakes.”  But they no longer tout a new “Transparency” website (initially featuring the chief’s picture, since removed).  The public wants the truth: all raw footage about the old-lady cop-killing, not some sleazy PR video, and unedited footage about the K-9 mauling.  They are not going to get it.  The idea of immediate, complete disclosure, now standard best practice elsewhere to promote public trust, is anathema to a government culture of arrogance, secrecy, and corruption.

 

I would fire City Manager Ifo Pili second.  From the start, he showed himself the led, not the leader.  Instead of taking the time to size up the city and its administration to make sensible decisions about personnel and policies, Pili accepted bad advice from the city’s puppet-mistress, who wanted a pliable police chief.  Pili took her advice, picked Dominguez for police chief, and has been too venal or weak to fire this disgrace.  His only success is ingratiating himself with the Mayor and City Councilors.  His agenda of amiability disqualifies him from continued city employment.

 

I would not fire City Council.  I would hope for an LCPD officer to walk into chambers and order them to stop their fucking meeting.  I would let him do the firing.