The Washington PostDemocracy Dies in Darkness

Opinion The Supreme Court’s radical abortion ruling begins a dangerous new era

A crowd of primarily abortion rights advocates gathers outside the Supreme Court after the court overturned Roe v. Wade on June 24. (Bonnie Jo Mount/The Washington Post)
Comment

In a reckless fit of judicial activism that will redound for generations, the Supreme Court on Friday overturned Roe v. Wade, the half-century-old precedent that declared that Americans have a constitutional right to obtain abortions. It is hard to exaggerate how wrongheaded, radical and dangerous this ruling is, and not just for anyone who could ever become pregnant. A 5-to-4 majority has thrust the country and the court itself into a perilous new era, one in which the court is no longer a defender of key personal rights.

Throughout their ruling, Justices Samuel A. Alito Jr., Amy Coney Barrett, Neil M. Gorsuch, Brett M. Kavanaugh and Clarence Thomas played down the existential significance of pregnancy for women’s lives. “Attempts to justify abortion through appeals to a broader right to autonomy,” wrote Justice Alito, “could license fundamental rights to illicit drug use, prostitution, and the like.” In fact, pregnancy is nothing like those things. It is an intimate decision with few, if any, parallels — one that a constitutional order that prizes personal dignity and autonomy requires individuals be able to make themselves.

In part because Americans rely on Supreme Court rulings to make decisions and plan for the future, overturning a precedent of Roe’s vintage and significance should be done only in exceptional circumstances — meaning, if the decision was egregiously wrong. This was obviously not the case with Roe, which the court had previously reviewed and upheld and which found its basis in the simple concept that a government committed to respecting fundamental liberties must place a high premium on individuals’ prerogative to make the most intimate and personal choices. Nor was Roe outside the mainstream of American values, with polls showing broad popular acceptance of the ruling before the justices eviscerated it.

Jennifer Rubin: The Supreme Court eviscerates abortion rights and its own legitimacy

Even if the justices did not find all of Roe’s reasoning compelling, Chief Justice John G. Roberts Jr. emphasized that the court did not need to go as far as it did. The case before the court involved Mississippi’s ban on abortions after 15 weeks. The chief justice would have upheld the ban because it still left women “a reasonable opportunity to choose” whether to proceed with their pregnancies. Such a holding would have modified, not obliterated, Roe’s longtime guarantee that pregnant people must be allowed to exercise some degree of free judgment on whether they will carry a child to term. “Surely we should adhere closely to principles of judicial restraint here, where the broader path the Court chooses entails repudiating a constitutional right we have not only previously recognized, but also expressly reaffirmed applying the doctrine of stare decisis,” Justice Roberts wrote. Five justices ignored his pleas, overturning Roe not because the case in front of them demanded it — but because they wanted to.

The first victims will be Americans who are pregnant or who might become pregnant. Abortion will become automatically illegal in 13 states. State attorneys general in Alabama, Louisiana and Oklahoma announced shortly after the ruling that their states’ abortion bans are now in effect. South Dakota Gov. Kristi L. Noem (R) announced a special session of the state legislature.

Marc Thiessen

counterpointUnlike Biden, most Democratic voters want strict abortion limits

A wave of further restrictions is sure to come. Some people seeking abortions could cross state lines. But poor people often have no such option, and conservative state lawmakers are devising ways to curb the practice for all their residents. Illegal and potentially dangerous abortions could proliferate. States might also ban other reproductive practices, such as in vitro fertilization or the use of intrauterine devices.

Moreover, as Justices Stephen G. Breyer, Elena Kagan and Sonia Sotomayor noted in a dissent, the court’s ruling enables Congress to ban abortion across the country, even in cases of rape or incest. This will become a vicious internecine legislative war that, given the right political circumstances, could result in the wholesale abridgment of rights that should be considered basic. This prospect contradicts the majority’s insistence that it is merely returning the abortion question to the states.

The court’s audacious attack on abortion rights raises questions about the future of other legal guarantees, including same-sex marriage, access to contraception and even interracial marriage. These guarantees are based on concepts of individual rights of the sort the court majority has now disregarded.

In practice, the court is unlikely to roll back all of them; Justice Kavanaugh emphasized in a concurrence that this ruling does not disturb other, related precedents. But the majority failed to explain credibly why their reasoning could not be applied to threaten these landmark achievements, noting simply that they do not involve moral questions about “potential life.” True, but some states claimed to have profound moral interests in prohibiting same-sex marriage — interests that the justices who dissented from recent decisions bolstering the rights of LGBTQ people, some of whom made up Friday’s anti-Roe majority, would no doubt find compelling. The court majority offered Americans little more than a flimsy promise that it will leave these rights intact.

Marc A. Thiessen: For the fall of Roe v. Wade, thank Donald Trump

The last victim is the court itself. In a stroke, a heedless majority has done more to undermine the court’s credibility than in any other action it has taken in modern times. Fundamental to its place in American society is the notion that the justices are more than just politicians in robes — that they are committed to conscientiously interpreting the law, with regard to text, tradition, history, logic, judicial restraint and common practice, rather than imposing their political or ideological preferences as quickly and as far as they can. In much of the country, this image will now be shattered. So, too, will be Americans’ expectations that they can count on any court ruling to remain the durable law of the land. We are entering a new era of distrust and volatility in the legal system in a country that needs stability in its governmental institutions, rather than more venom and tumult.

Friday’s ruling was another reminder, for a country that needs no more, that Americans cannot take for granted the freedoms they enjoy. Their decisions, particularly how and whether they vote, can have direct, dramatic and negative consequences for their lives. A decades-long conservative crusade to nullify federal abortion rights has now succeeded, because Senate Republicans underhandedly stacked the court with justices who have proved to be disastrously intemperate. This tragic moment should wake Americans to reality: They must defend their rights, or they are liable to lose them.

Loading...