Abortion: Is this the end for Roe?
For nearly half a century, Roe vs. Wade has guaranteed the right of American women to legal abortion, said Elie Mystal in TheNation .com, but the Supreme Court has just launched a “frontal attack” on that precedent. The court last week agreed to hear a challenge to a Mississippi law banning abortion after 15 weeks of pregnancy. The eagerness of a court now dominated by conservatives to even consider the Mississippi law—which every lower court tossed out as unconstitutional— means at least four justices, and probably five or six, are ready to uproot the central finding of Roe and the related 1992 Casey ruling: States cannot restrict abortions if they place “an undue burden” on women before the point of “fetal viability,” or roughly 24 weeks. The day progressives have dreaded is here, said Julie Kay and Kathryn Kolbert in Slate.com. The newest three justices—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—were each groomed by the Federalist Society and handpicked by Donald Trump with the goal of overturning Roe in mind. Together with Clarence Thomas and Samuel Alito, the “five ultra-conservative justices” don’t even need the vote of the more cautious Chief Justice John Roberts to deliver a prize right-wingers have been pursuing for four decades. “Roe is going to fall.”
Let’s hope so, said Kevin Williamson in NationalReview.com. Reasonable people can disagree about whether abortion should be legal, but honest pro-choicers admit Roe was an “indefensible decision.” To legalize abortion nationwide, the sophists of the 1973 court declared that the taking of unborn human life is a private act, and then invented a “right to privacy” mentioned nowhere in the Constitution. We pro-lifers “dream of an America where all unborn children are protected in law and welcomed in life,” said Ramesh
Ponnuru in Bloomberg.com. But reversing Roe will only toss the issue back to the states, where voters’ elected representatives can give them whatever “abortion laws they favor.”
Both pro-lifers and pro-choicers might wind up disappointed, said Jonah Goldberg in TheDispatch.com. The court may have chosen the Mississippi case so as to move the point at which states can restrict abortion to around 15 weeks. This would “be denounced as a calamity” by abortion rights activists. But given that 90 percent of abortions take place before 15 weeks, it would arguably make “the right to most abortions more constitutionally and politically secure than ever before.” But even a partial rollback of abortion rights would inflame a highly emotional issue even further, said Ed Kilgore in NYMag.com. If the “mostly settled” framework of the last 48 years is discarded, it will give way to a “savage landscape” of new legal and political battles over abortion laws in dozens of states.
American women “will pay a heavy price” if the court overturns Roe, said Linda Greenhouse in The New York Times, but so will the court itself, which will have torched its own “institutional legitimacy.” For years, we’ve listened to Supreme Court nominees mouth reassuring platitudes about “the importance of precedent and the duty of judges to put personal preferences aside,” said David Von Drehle in The Washington Post. Those claims are about to be tested. Is the Supreme Court an institution whose authority is built on a firm foundation of previous rulings, or is it just another partisan body that can reverse course with “a simple majority of justices at any given moment?” As the court tees up its reconsideration of Roe, “we’re about to find out.”