She was referring to the apparent willingness of the court to overthrow precedent simply because its membership changed. (The usual reasons for overriding precedent — such as new facts or an evolving social consensus — do not apply in this case.) As the solicitor general and the counsel for the Center of Reproductive Rights argued, this is the first time in history that the court will rip up decades of precedent to take away a fundamental personal right.
I trust Sotomayor’s query was rhetorical; the court will remain in its august building. But should it repudiate abortion rights, any pretense that it is above politics will vanish, in no small part a result of the blatant partisan agenda and intellectually pathetic arguments displayed on Wednesday.
Justice Brett M. Kavanaugh, who apparently snookered Sen. Susan Collins (R-Maine) into believing he considered abortion precedent “settled,” made the most disingenuous argument of the morning. Why can’t the court just be “neutral” on abortion, he asked. Some states would still allow abortion, right?
This is not how constitutional law works. The court is not “neutral” on the First Amendment or the Second or the 14th. It is there to uphold rights against political branches seeking to intrude upon — if not destroy — individual liberties. In declaring itself “neutral,” the court would be denying the right to an abortion affixed to nearly 50 years of precedent.
In terms of sheer frightfulness, nothing quite topped Justice Amy Coney Barrett, who repeatedly asked why the whole problem was not solved by the fact that women could just give up their child at the conclusion of their pregnancy. In other words, women can be forced to complete a pregnancy against their will, in violation of the 14th Amendment, because they do not have to keep the child.
This, of course, misunderstands the entire issue: It is about whether the government can violate a woman’s bodily autonomy, something we would not dream of doing in other contexts. Why do we not force people to give up kidneys for organ donation, given that at the end of the procedure, they will — probably — return to full health? Perhaps Barrett’s antiabortion advocacy was telling, after all.
She was outdone in the realm of theocratic arrogance only by Justice Samuel A. Alito Jr., who repeatedly referred to the interests and rights of a fetus. Where did that come from? Certainly not the Constitution, which speaks of “persons.” The notion that a fetus is a person is not shared by all faith traditions. Those who have accused right-wing justices of seeking to impose one strain of Christian doctrine on the rest of the country sadly have been proved correct.
Anyone counting on Chief Justice John G. Roberts Jr. to be the voice of restraint was sadly mistaken. In the guise of finding a way to overrule nearly 50 years of precedent without explicitly doing so, he asked the litigants why we couldn’t make the dividing line (after which he state can prohibit abortion) at 15 weeks rather than at viability? Well, then, what’s wrong, with 10 weeks, or six weeks? The chief justice proposes to remove the only fixed and clear demarcation point for abortion rights, thereby inviting states to outlaw the vast number of abortions.
Several consequences flow from the apparent willingness of at least five justices to obliterate viability as the point at which states can ban abortions.
First, if Democrats needed reason to fire up the troops before the 2022 midterm elections, this might do it. The obviously partisan court will thrust the nation into a period of turmoil, chaos and outrage over new restrictions on women’s life choices, which Republicans will seek to cement in state laws. Every Republican on the ballot for state legislator, governor, the House or the Senate will have to defend new intrusions on women’s autonomy, including in cases of rape and incest. Given the wide and deep support for abortion rights, Republicans may come to regret appointing religious ideologues to the court.
Second, the pressure will intensify on Senate Democrats (West Virginia’s Joe Manchin III, in particular) to carve out an exception to the filibuster for the protection of constitutional rights — whether it is voting rights or reproductive rights. With the 2022 midterms looming, federal legislation protecting such fundamental rights may be the only avenue to stop a wholesale revision of our democracy and our modern conception of personal liberty.
Third, demands for term limits and even court-packing will intensify. As Sotomayor noted, the court enjoys respect and independence only when it acts like a court. As it transforms into a partisan weapon aimed at decades of constitutional protections, Democrats’ argument that they might as well get as many of “their” justices on the court as possible sounds more justified.
We are, in short, on the verge of a constitutional and political tsunami. What was settled, predictable law on which millions of people relied will likely be tossed aside. The blowback likely will be ferocious. It may not be what Republicans intended. But it is coming.