Roe decision is activism, not justice
Supreme Court should have heeded Roberts’ advice to decide the case without ending abortion rights. It refused to be prudent.
Millions of women in America lost the constitutional right to control their own bodies Friday, and in the process, America lost something else deeply precious to who we are as a nation: trust in the U.S. Supreme Court.
How free is a country whose liberties can be gutted by the courts at whim, for reasons of personal ideology or shifting political winds? It is not free at all, not stable, and not the kind of America we know, or that we want to pass on to our children.
Consider the very first sentence of the 1992 U.S. Supreme Court opinion that reaffirmed the landmark 1973 Texas abortion rights case Roe v. Wade: “Liberty finds no refuge in a jurisprudence of doubt.” It meant that although Roe had flaws the justices would address, the court would honor its own basic precedent, would essentially keep its own word and protect the right that had already been granted.
This rule, stare decisis, promotes confidence in our courts. It has been overridden to expand rights, but never, as it was Friday, to deprive a fundamental right that was guaranteed and reaffirmed for nearly half a century.
On Friday, liberty lost its refuge. American women lost a fundamental right to control their reproductive destinies. People from all walks of life lost a firm constitutional guarantee to privacy that ensures such rights as birth control and gay marriage.
And the highest court in the land lost a key pillar of its legitimacy, with a majority of its members, three appointed by former President Donald Trump, choosing a path of activist gratuitous affirmation over judicial restraint.
The decision by the court’s conservative majority to cast aside its own nearly 50-year-old precedent and overturn a woman’s constitutionally protected right to choose was expected, given that a draft opinion had been leaked months earlier, but no less tectonic in its impact. No less bewildering for millions of American women who have never lived in a time when health care and doctors could be criminalized, when the life and health of a mother are subordinate considerations, when women and girls could be forced to bear a rapist’s child.
And surely, it was no less duplicitous on the part of the Trump-appointed justices who assured Congress and the nation in their confirmation hearings that they would respect Roe as the law of the land, and the case that reaffirmed it, Planned Parenthood v. Casey, as an even stronger “precedent on a precedent,” as Justice Brett Kavanaugh put it in 2018.
All three of those justices signed on to an opinion that comes to a very different conclusion. “We hold that Roe and Casey must be overruled,” the decision by Justice Samuel Alito reads. “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.”
Respect for precedent? None can be found in a decision that abruptly, proactively, upends America’s reproductive health care landscape far beyond even what the plaintiff in the case, Dobbs v. Jackson, initially asked for. In fact, Mississippi explained at length how its law banning abortions before viability could be upheld without overturning Roe, but changed its tune once the Trump-enabled conservative super-majority took over the high court. Chief Justice John Roberts was right to say by taking their bait, the Supreme Court rewarded Mississippi’s “gambit.”
Yes, many Americans who oppose abortion rights, including those motivated by sincere religious beliefs and those led by less-sincere activism for political gain, are cheering the decision. Texas Attorney General Ken Paxton closed his office, declaring a holiday in celebration of a long-awaited ruling to protect life.
But whose life? The abortion of viable “babies” has long been banned, as were many second-trimester abortions in states such as Texas. We support reasonable restrictions.
Friday’s decision, meanwhile, allows any state to deem its interest in protecting a first-trimester fetus the size of a lentil as equal, or even superior, to protecting the life and health of an adult woman, whose reasons for seeking an abortion may well include her ability to provide for the children she already has.
Having overturned Roe, Alito writes that “the authority to regulate abortion must be returned to the people and their elected representatives.”
The people. It almost sounds righteous. Until we remember that, in our own state of Texas, the will of “the people” is essentially, due to gerrymandered political districts and increasingly eroded voter access, the will of around 10 percent of the state’s voters who show up for the Republican primary.
They nominate the legislative candidates who win in November and make the laws in Austin every two years.
That’s why, in Texas, despite a majority of those polled saying they didn’t want Roe overturned, Friday’s ruling will mean that nearly all abortions will promptly be banned, at the moment of fertilization, with the only rare exception being to prevent the death or serious injury of the mother.
Paxton also reminded Texans that the old, pre-Roe laws are still on the books so district attorneys could ideally begin criminal prosecutions of physician violators immediately. Harris County District Attorney Kim Ogg, for her part, sent a statement Friday indicating she had other priorities.
As for the Supreme Court’s priorities, they no longer seem to dwell on the business of upholding long-affirmed constitutional rights or safeguarding its own reputation as a trusted umpire of American liberty.
There was another way, a less-divisive, a less-traumatic, but still conservative, way forward in the Mississippi case.
The chief justice said as much in his separate opinion. A strident conservative himself, Roberts joined the majority’s 6-3 decision upholding Mississippi’s law banning abortions after 15 weeks, but did not support the extra step of five of his colleagues to overturn Roe outright.
“If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more,” Roberts wrote.
Roberts detailed his own disagreements with Roe and Casey, but wrote: “None of this, however, requires that we also take the dramatic step of altogether eliminating the abortion right first recognized in Roe.”
Any argument Alito and his cohorts, Justices Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh and Clarence Thomas, try to make that Roe was so divisive that the issue of abortion rights was best left to the political whims of 50 different states, is disingenuous.
Abortion will always be a complex, emotional, morally difficult issue upon which Americans will never agree. That’s why we needed the Constitution and the Supreme Court to show us the way. And it did, many times, for nearly half a century.
The court abandoning that responsibility now doesn’t bring Americans together. Subjugating a womb to the jurisdiction of a map line doesn’t resolve anything. It only drives the wedge down deeper. And the trust, lower still.