After Roe, what’s next for justices?
WASHINGTON — The Supreme Court’s decision to end the constitutional right to abortion concluded one battle for now but posed another far-reaching question: whether the judicial ground under rights in other personal matters is now also shaky.
The lack of a clear and consistent answer among the supermajority of conservative, Republican-appointed justices prompted fear on the left, and anticipation among some on the other side of the ideological divide, that the abortion decision could begin a sharp rightward shift.
Those reactions were stoked by Justice Clarence Thomas’ concurring opinion, in which he explicitly said precedents establishing those rights — which relied on the same legal reasoning as the now-overturned Roe v. Wade — should be reconsidered.
The majority opinion by Justice Samuel Alito sought to reassure those who see a judicial assault coming on same-sex marriage and contraception. He declared that a ruling that the 14th Amendment — which forbids the government to take away people’s freedom unfairly — does not protect abortion rights should not be seen as imperiling precedents unrelated to ending fetal life. Yet his legal rationale implicitly called a series of such precedents into doubt.
The three dissenting liberals on the court said, in essence, don’t be fooled. “No one,” they said, “should be confident that this majority is done with its work.”
They wrote that precedents being cast aside by the court — Roe v. Wade and Planned Parenthood v. Casey, a 1992 case that reaffirmed core parts of Roe — were part of the same “constitutional fabric” behind “settled freedoms involving bodily integrity,
familial relationships and procreation.”
Then there was Justice Brett Kavanaugh, who sought to calm fears among abortion-rights supporters of even harsher changes to come. In his view, he said, states could not constitutionally bar women from traveling to another state to obtain an abortion. Nor could they prosecute people for abortions before Friday’s ruling took effect.
Friday’s opinion had the immediate effect of allowing laws banning or severely curbing access to abortion to snap into place in at least 20 states. But its implications for potential future disputes over abortion and many other rights proclaimed by the Supreme Court since the second half of the 20th century could also be profound.
Over several generations, the modern court gradually
ruled that a series of unwritten constitutional rights existed as part of the 14th Amendment. In addition to declaring a right to abortion, the court struck down involuntary sterilization and laws interfering with who people could choose to live with or marry, along with decriminalizing contraception and same-sex intercourse.
The heart of Justice Alito’s majority opinion is that the 14th Amendment protects only unwritten rights that were already understood to exist when adopted in 1868. Many states then banned abortion, so it was wrong for the Supreme Court, in 1973’s Roe v. Wade, to interpret the 14th Amendment as encompassing a right to abortion, he reasoned.
The majority bloc in the abortion case portrayed itself as getting the Supreme Court out of the business of drawing lines about which
regulations go too far on the contentious subject. Under Alito’s opinion, so long as a state legislature has a “rational basis” for imposing a limit or ban on the procedure, the courts will not intervene.
But in a blistering but impotent joint dissent, the court’s remaining Democratic appointees — Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan — said the ruling would instead force the Supreme Court to wade further into hotly contested issues.
Their examples included whether and when a state must allow exceptions for a woman’s life and health, what the ruling would mean for in vitro fertilization and miscarriage management, whether a state could bar advertising for out-of-state abortions or helping women get to out-of-state clinics, and whether it could bar women
from traveling out of state or receiving abortion medication mailed by out-of-state pharmacies.
“The majority does not save judges from unwieldy tests or extricate them from the sphere of controversy,” they wrote.
Against that backdrop, the concurring opinion by Kavanaugh was particularly important because he appears to be the median judge on abortion issues — meaning he controls the fifth vote that decides which side to make into a majority in a closely divided case.
Friday’s ruling also called into question the entire sweep of court precedents that established unwritten rights as deriving from the 14th Amendment’s protections for liberty.
Alito denied that the decision imperiled other precedents in which the Supreme Court proclaimed modern-era rights based on an evolving understanding of individual freedoms protected by the 14th Amendment — including contraception, sexual conduct with a member of the same sex or same-sex marriage. He said abortion was different because it involved the destruction of fetal life, which the state had an interest in protecting.
“We emphasize that our decision concerns the constitutional right to abortion and no other right,” he also wrote. “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”
Even the conservative justices signaled disagreement among themselves over how much stock to put in that statement, however. Thomas made no secret of his eagerness to press further.
He said he agreed with Alito’s line insofar as it meant that only abortion was specifically “at issue” in the case decided Friday. But he went on to call for the court to purge, “at the earliest opportunity,” all other cases that similarly reasoned that various unwritten rights are protected by the due process clause of the 14th Amendment.
The dissenting justices expressed disbelief at attempts to distinguish abortion from precedents about matters such as contraception and same-sex intimacy and marriage. The bottom line, they wrote, was that the reasoning about the 14th Amendment and 1868 was the same for that entire constellation of rulings.
“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. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other,” they wrote.