Extremes control abortion debate
The Supreme Court has confirmed a draft opinion, joined by at least five justices, argues court decisions legalizing abortion since 1973 were “egregiously wrong” and “must be overruled.”
The court warns the draft doesn’t represent the “final position” of any justice. But even if it’s altered in the weeks ahead, the mere existence of the draft reflects a damning and damaging truth.
The Supreme Court is now just another political institution, reflecting the polarizing partisanship that continues to undermine the ideals of comity and compromise in public life.
Not only does the draft pick sides on perhaps the most emotional issue of the last half-century, but it favors a decidedly minority view. A new Abc/washington Post poll reports, “54 percent of Americans think the 1973 Roe decision should be upheld while 28 percent believe it should be overturned — a roughly 2-to-1 margin.”
However, if the zealots behind the draft opinion are out of step with mainstream America, so are the hardliners on the other side who favor unfettered access to abortion. “A strong majority would like to see restrictions on abortion rights,” according to a recent Marist Poll.
“The debate is dominated by the extreme positions on both sides,” Barbara Carvalho, the poll’s director, told NPR, but “that’s not where the public is.”
That’s not where the court has been, either. The original Roe decision — and its update in the Casey case 19 years later — rather accurately reflects the rejection of extremes described by Carvalho. In Casey, the court altered Roe to permit more restrictions, as long as they came after a fetus was “viable” outside the womb, and did not impose an “undue burden” on the mother.
This reasonable compromise was largely fashioned by three centrist justices, all appointed by Republican presidents, who represent honorable GOP traditions that have largely disappeared. David Souter of New Hampshire, named by President Bush 41, was a classic New England progressive. Sandra Day O’conner of Arizona, selected by Ronald Reagan, reflected a frontier tradition of limited government intrusion into private lives. Anthony Kennedy of California, another Reagan appointee, followed a moderate path that enabled him to be the swing vote on the court for many years.
Compare them to the three judges appointed by President Trump — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — committed ideologues who came to the court determined to overturn Roe and Casey, and to please the powerful bloc of conservative Christians who voted heavily for Trump precisely because he promised to pack the court with reliable conservatives. A promise he kept.
The five-justice majority in Casey — augmented by two liberals, Harry Blackmun and John Paul Stevens — also grappled with another critical issue that’s directly relevant to the current debate: the clash between popular will and fundamental rights.
Abortion foes say the issue should be left to the states, “that such a profound moral question should be decided by the people, not by nine unelected judges,” as a Wall Street Journal editorial asserted. And it’s estimated about half the states would impose major restrictions if given the chance.
That sounds good, on the surface. But the American constitutional system has always limited the power of the majority to abrogate rights that are deemed fundamental, to decide a “profound moral question.” That’s why school segregation, for example, highly popular in Southern states that wanted to preserve Jim Crow laws, was outlawed by the Supreme Court.
In Casey, the court made a similar point, saying, “Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing and education.”
Casey also takes up the issue of stare decisis, the importance of relying on precedent, because that doctrine protects the court from allegations it simply bows to changing political power. “The Court,” wrote the majority, “must take care to speak and act in ways that allow people to accept its decisions on the terms the Court claims for them, as grounded truly in principle, not as compromises with social and political pressures.”
The Casey decision reflected a reasonable compromise and rejected the extremes on both sides. It valued the basic priority that empowers individuals to make personal decisions about their lives. And it understood abandoning precedent for political reasons would deeply damage the court.
If the draft opinion overruling Roe and Casey does become law, that’s exactly what will happen. Women will lose a fundamental right they’ve had for almost 50 years. And the court’s credibility will suffer a severe and self-inflicted wound.