The Supreme Court heard arguments Wednesday in an abortion case that could mark a perilous turning point for American society. Judging by the justices’ tone, the question is not whether they will eviscerate the 1973 Roe v. Wade decision and the subsequent Planned Parenthood v. Casey ruling in 1992 but how drastically they will curtail these core precedents. The justices should have no illusions: A partial or total reversal of Roe would devastate not only the Americans who rely on the abortion rights that have been theirs for nearly 50 years, but also the court itself, undermining its legitimacy.
The case concerns a Mississippi law banning abortion at 15 weeks after a woman’s last menstrual period — well before the viability line that Roe set down. The state argues that the court should overturn Roe, returning questions on abortion rules to “the people.” This is an Orwellian way to describe the court transferring the right to choose from individuals to state legislators. Roe established that the ethical, health and social considerations are so complex, and the decision to proceed with pregnancy so personal, that the Constitution’s guarantee of liberty demands that Americans have space to make these decisions without government interference. The court’s role is to protect rights such as these, because Americans deserve a baseline level of autonomy that should not be subject to a statehouse vote.
Very little has changed since the court handed down Roe and Casey, aside from the fact that Americans now rely on their right to choose whether to terminate a pregnancy. The state argues that contraception is better, that health-care access has improved and that states have made it easier to give up unwanted babies. Yet some 1 in 4 women will still seek abortions in their lifetimes, and voluminous research shows abortion access promotes educational, professional and financial attainment and reduces poverty.
The other shift since Roe has been the makeup of the court, reshaped after the addition of several conservative justices due to a mixture of underhanded politics and pure happenstance. The court’s authority derives not from its ability to enforce its declarations — it lacks any such power — but from the fact that Americans respect its decisions. Those decisions must reflect something greater than mere whim or raw political power in the Senate. The court should overturn precedent only in exceptional circumstances. The justices must exercise particular care in the case of Roe, because the court previously reviewed and reaffirmed it in Casey, reinforcing its status as the law of the land. In such a circumstance, the court should reverse only decisions that have proved, with the wisdom of hindsight, to be wildly bad. That is not the case with Roe or Casey.
Justice Brett M. Kavanaugh on Wednesday cited landmark cases such as Brown v. Board of Education, which overturned previous court holdings, to argue that the court sometimes makes its most important decisions when it breaks with past rulings. The justices should take no comfort in this strained comparison. If the court substantially reverses or strikes Roe, Americans will not remember it as a moment of overdue progress but as an undue contraction of Americans’ constitutional rights that does deep and immediate harm to millions. That would indeed be a bleak day for the court.