While we knew from the leak of Justice Samuel A. Alito Jr.’s majority opinion that Roe v. Wade and nearly 50 years of constitutional precedent were hanging by a thread, and yet when the opinion came down Friday morning — a virtual copy of the leaked draft — many Americans no doubt felt a wave of disbelief, anger, dread and fear.
The court’s decision is so emphatic, and so contemptuous of the principle of stare decisis, that one wonders whether the unvarnished radicalism of the decision will finally rouse millions of Americans to the threat posed by a court untethered to law, precedent or reason.
As the dissent (by Justices Stephen G. Breyer, Elena Kagan and Sonia Sotomayor) made clear, the majority opinion is as radical as any in its history: “It says that from the very moment of fertilization, a woman has no rights to speak of. A State can force her to bring a pregnancy to term, even at the steepest personal and familial costs. An abortion restriction, the majority holds, is permissible whenever rational, the lowest level of scrutiny known to the law. And because, as the Court has often stated, protecting fetal life is rational, States will feel free to enact all manner of restrictions.”
The result could well be enactment of criminal penalties for every abortion, in any circumstance. “Enforcement of all these draconian restrictions will also be left largely to the States’ devices. A State can of course impose criminal penalties on abortion providers, including lengthy prison sentences,” the three dissenters wrote. “But some States will not stop there. Perhaps, in the wake of today’s decision, a state law will criminalize the woman’s conduct too, incarcerating or fining her for daring to seek or obtain an abortion.” The dissent added, “And as Texas has recently shown, a State can turn neighbor against neighbor, enlisting fellow citizens in the effort to root out anyone who tries to get an abortion, or to assist another in doing so.”
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The dissent also underscores the enormous damage to women’s self-determination, autonomy and equal status as persons. And it rightly attacks the garbled history in the majority opinion, noting that the Constitution was ratified before women had the vote. In essence, the court elevates male dominance to a constitutional imperative in the 21st century.
Justice Brett M. Kavanaugh’s feckless concurrence claiming the court is simply being neutral on the issue of abortion is preposterous, as the dissent makes clear: “His idea is that neutrality lies in giving the abortion issue to the States, where some can go one way and some another. But would he say that the Court is being ‘scrupulously neutral’ if it allowed New York and California to ban all the guns they want?”
The hypocrisy and intellectual dishonesty of the court’s right-wing justices lead to the conclusion that they have simply appointed themselves super-legislators free to impose a view of the United States as a White, Christian and male-dominated society despite the values, beliefs and choices of a majority of 330 million modern Americans.
To understand how radical the court’s decision is, one need only consider Justice Clarence Thomas’s concurrence, where he says the quiet part out loud: He’d sweep away 14th Amendment substantive due process — birth control, gay marriage, all of it. And that is where we are heading, for in a sense Thomas is right. There is no bright line between destroying the expansive view of liberty in the 14th Amendment, when abortion is at issue, and destroying it for all other intimate decisions. The right-wing majority’s willingness to countenance an all-powerful state that interferes with every aspect of our lives is breathtaking.
The dissent says it plainly: The majority “makes radical change too easy and too fast, based on nothing more than the new views of new judges. The majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them. The majority thereby substitutes a rule by judges for the rule of law.”
And now what? States will race to criminalize abortion. Women’s lives and personhood will be put at risk. But that is not the end. Ultimately, the people — even in the court’s telling — still have control. They can vote out those who would drastically criminalize women unwilling to be forced to give birth. They can elect senators to do away with the filibuster in order to protect reproductive rights and reformulate the court, including the removal of lifetime tenure. The response frankly must be as bold and decisive as the court’s affront.
The court’s decision may result in women’s deaths. But it has certainly killed off what is left of the court’s credibility. And for that, there is no solution in sight.