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Even if we knew it was coming, the shock reverberates.
For the first time in history, the Supreme Court
has eliminated an established constitutional right involving the most
fundamental of human concerns: the dignity and autonomy to decide what
happens to your body. As of June 24, 2022, about 64 million
American women of childbearing age have less power to decide what
happens in their own bodies than they did the day before, less power
than their mothers and even some of their grandmothers did. That is the
first and most important consequence of the Supreme Court’s decision on
Friday morning to overturn Roe v. Wade and Planned Parenthood v. Casey.
The
right-wing majority in Friday’s ruling in Dobbs v. Jackson Women’s
Health Organization — which involved a Mississippi law that banned most
abortions after 15 weeks, well before the line of viability established
in Roe and Casey — stated, “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
The
implications of this reversal will be devastating, throwing America
into a new era of struggle over abortion laws — an era that will be
marked by chaos, confusion and human suffering. About half the states
in the United States are expected to enact laws that restrict or make
abortion illegal in all or most cases. Many women may be forced by law
to carry pregnancies to term, even, in some cases, those caused by rape or incest. Some will likely die, especially those with pregnancy complications that must be treated with abortion
or those who resort to unsafe means of abortion because they can’t
afford to travel to states where the procedure remains legal. Even those
who are able to travel to other states could face the risk of criminal
prosecution. Some could go to prison, as could the doctors who care for
them. Miscarriages could be investigated as murders, which has already happened
in several states, and may become only more common. Without full
control over their bodies, women will lose their ability to function as
equal members of American society.
The
insult of Friday’s ruling is not only in its blithe dismissal of
women’s dignity and equality. It lies, as well, in the overt rejection
of a well-established legal standard that had managed for decades to
balance and reflect Americans’ views on a fraught topic. A majority of
the American public believes that women, not state or federal lawmakers,
should have the legal right to decide whether to end a pregnancy in all or most cases.
At the same time, Americans are weary of the decades-long fight over
abortion, a fight that may feel far removed from their complex and
deeply personal views about this issue.
The
court’s ruling in Dobbs invites years of even more fractious and
protracted legal conflict. By giving state legislatures the power to
impose virtually whatever abortion restrictions they please, some will
now enact outright bans on abortion. Dozens of cases challenging those
laws could soon start making their way through the courts and, almost
certainly, to the Supreme Court.
The
justices in the majority claim to be playing an impartial role in this
decision. “Because the Constitution is neutral on the issue of abortion,
this court also must be scrupulously neutral,” Justice Brett Kavanaugh
wrote in a concurring opinion. And yet, as the three dissenting justices
pointed out, “when it comes to rights, the court does not act
‘neutrally’ when it leaves everything up to the states. Rather, the
court acts neutrally when it protects the right against all comers.”
Friday’s
ruling was written by Justice Samuel Alito. It was joined by all the
other Republican-appointed justices, although Chief Justice John Roberts
tried to have it both ways, joining with the majority to uphold the
Mississippi law in Dobbs even as he wrote separately to say he would not have overturned Roe and Casey altogether out of a respect for precedent.
The
dissent, signed jointly by the three justices appointed by Democrats,
took apart the majority’s attempts to justify its rejection of
established precedent and even questioned the Republican-appointed
justices’ claims to neutrality. The right to abortion, the dissenters
noted, was established by one ruling a half century ago, reaffirmed by
another 30 years ago, and “no recent developments, in either law or
fact, have eroded or cast doubt on those precedents. Nothing, in short,
has changed.”
Nothing,
that is, other than the makeup of the court. This is the sole reason
for Friday’s ruling. As the dissenters rightly put it, “Today, the
proclivities of individuals rule.”
The
presence of these individuals on the court is the culmination of a
decades-long effort by anti-abortion and other right-wing forces to
remake the court into a regressive bulwark. This has never been a
secret; and with the help of the Senate under Mitch McConnell, former president Donald Trump and allies in the conservative legal movement, they have succeeded.
The
central logic of the Dobbs ruling is superficially straightforward, and
the opinion is substantially the same as the draft Justice Alito
distributed to the other justices in February, which was leaked to the press last month.
Roe and Casey must be overruled, the ruling says, because “the
Constitution makes no reference to abortion, and no such right is
implicitly protected by any constitutional provision,” including the
14th Amendment’s guarantee of due process. While that provision has been
held to guarantee certain rights that are not mentioned explicitly in
the Constitution, any such right must be “deeply rooted in this nation’s
history and tradition.”
By the
majority’s reasoning, the right to terminate a pregnancy is not “deeply
rooted” in the history and tradition of the United States — a country
whose Constitution was written by a small band of wealthy white men,
many of whom owned slaves and most, if not all, of whom considered women
to be second-class citizens without any say in politics.
The
three dissenters in the Dobbs case — Justices Stephen Breyer, Sonia
Sotomayor and Elena Kagan — called out the majority’s dishonesty, noting
that its exceedingly narrow definition of “deeply rooted” rights poses a
threat to far more than reproductive freedom. The majority’s denial of
this is impossible to believe, the dissenters wrote, saying: “Either the
majority does not really believe in its own reasoning. Or if it does,
all rights that have no history stretching back to the mid-19th century
are insecure.”
In other words, the
court is not going to stop at abortion. If you think that’s hyperbole,
consider Justice Clarence Thomas’s concurring opinion in Dobbs, in which
he called for the court to reconsider other constitutional rights
that Americans have enjoyed, in some cases, for decades — including the
right to use birth control, the right to marry the person of their
choosing and the right of consenting adults to do as they please in the
privacy of their bedrooms without being arrested and charged with
crimes. These rights share a similar constitutional grounding to the
now-former right to abortion, and Justice Thomas rejects that grounding,
calling on the court to “eliminate it … at the earliest opportunity.”
This
position may not command a majority of justices today, but six years
ago, few people thought Roe v. Wade would be overturned. Brett
Kavanaugh, during his confirmation hearing in 2018, said Roe v. Wade “is
important precedent of the Supreme Court that has been reaffirmed many
times.” He added: “Casey specifically reconsidered it, applied the stare
decisis factors, and decided to reaffirm it. That makes Casey a
precedent on precedent.”
Yet
he voted to overturn two rulings that have led to more equality, more
dignity and more freedom for millions of Americans. To dismantle these
and other advances, the majority on this Supreme Court has demonstrated
its disregard for precedent, public opinion and the court’s own
legitimacy in the eyes of the American people. We will be paying the price for decades to come.
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