After listening to the Supreme Court majority’s questions as they heard the oral arguments in the Dobbs v. Jackson Women’s Health Organization (Mississippi) case last week, my concerns extend far beyond abortion.
My greatest concern is that this Court majority (Chief Justice Roberts and Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett) seems willing to ignore precedent. If precedent by the highest Court in the land is meaningless, which of our rights will the Court strike down next?
I’m not sure why the mainstream media refers to these justices as “conservative.” There was nothing conservative about permitting the Texas law to stand.
That law went well beyond making most abortions illegal. It also made abortions after seven weeks a felony and “deputized” any party who opted to take the law into his/her own hands to enforce the ban on abortions—and to profit from doing so.
Allowing a state to create a class of what’s been called “vigilante plaintiffs” doesn’t sound conservative to me.
Court-watchers said then that the Mississippi law would fully reveal the Court’s outright attack against Roe v. Wade.
Never mind that Roe has been settled law in the US for nearly fifty years, that it became law in a 7-2 decision upheld by Justices appointed by Republicans, and that polls indicate consistent support for Roe.
In November, a Quinnipiac poll found 63% support; a Washington Post poll found 60% in favor of retaining the law.
In their questions about the Mississippi law, the six Justices gave every indication that they’re looking for a way to overturn Roe—without making it appear that they’re overturning Roe. Why?
Because they know that doing so places them far outside the mainstream of American opinion. And, after saying during their confirmation hearings that they wouldn’t overturn precedents, they’re a bit touchy about being shown to so blatantly overturn a precedent. (Update: they didn’t say they wouldn’t overturn precedents; they said Roe was a precedent that had been upheld, an apparently deliberate attempt to mislead.)
In a brilliant piece in The New York Times, legal journalist Linda Greenhouse gives examples of the “gaslighting” the Justices employed in the questions and points they proffered. This essay is well worth reading.
The Court’s newest member, Amy Coney Barrett, asked a question that showed how shockingly out of touch these people are.
Why was abortion necessary, she asked, when women have the “safe haven” option to give up their newborn babies for adoption—anonymously and without penalties? Her question was intended to minimize the “burdens of parenting” issues raised in Roe.
Why, indeed? The attorney representing the women’s health clinic told of the burdens of pregnancy. They are many, but most significantly: in Mississippi, it is 75 times more dangerous to give birth than to have an abortion—highest for women of color.
In fact, the US has the highest rate of maternal deaths of any Western country. That is a national disgrace that must be addressed.
So the justices who seem eager to drastically change settled law appear to be basing their decisions on neither law nor any interest or understanding of the implications of their actions.
No wonder Justice Sonia Sotomayor struck a nerve when she asked:
“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? I don’t see how it is possible.”
Regardless of what this Court decides, abortions will not end in the US. What will end are medically safe, legal abortions.
Once again, women of means will be able to secure the medical help they need, privately, while poor women will be condemned either to dangerous procedures that will threaten their health and their very lives, or to greater poverty by being forced to carry to term a child they can’t take care of.
“Pro-life,” many have pointed out, ends at childbirth.
And significantly, the Court majority’s likely ruling will turn these decisions to the states, where more than twenty states have already passed “trigger laws” to overturn Roe once the court rules.
So we will see a federal law protecting a woman’s autonomy devolve into an issue of states rights. This is a highly dangerous precedent.
As US Solicitor General Elizabeth Prelogar responded when Justice Kavanaugh suggested that the Court might just regard “neutrality” as its proper approach to this controversial issue:
“The nature of fundamental rights is that it’s not left up to state legislatures to decide whether to honor them.”
Despite how difficult the issue of abortion is, I’ve always felt its occurrence and the divisiveness it causes could be reduced if our institutions gave greater attention to prevention—through the availability of safe, inexpensive, reliable birth control.
But what if the Court majority strikes down certain methods of birth control?
And will the assault on voting rights that Justice Roberts began become intensified? Very likely.
What about Brown v. Board of Education? De facto segregation is increasingly permeating American schools. Will the Court find a rationale for locking in that trend, thereby worsening it?
What about gay marriage? Interracial marriage? Adoption laws? Health, occupational, and environmental regulations? The right to peaceful assembly? Freedom of the press?
This is not an exhaustive list. It appears we’ve reached a tipping point.
One important question is whether the Court majority’s extremely political stances will have/is having a chilling effect on individuals, organizations, and government entities’ willingness to take their grievances to court on any level–for fear of the outcome if their case reaches the highest court in the land?
The half-century since Roe’s passage has seen some important legislation expanding the rights of Americans. This Court seems determined to contract those rights.
What Can We Do?
Robert Hubbell, whose “Today’s Edition” newsletter is another worthwhile resource available on Substack, has some suggestions. Though Hubbell advocates expanding the Court, he realizes the necessary legislation may not pass for a while. But he references a 1937 episode when the “threat of expansion was enough to chasten a reactionary majority” (https://www.history.com/this-day-in-history/roosevelt-announces-court-packing-plan.)
He encourages us to call Senate Majority Leader Chuck Schumer and our own Senators, urging them to cosponsor and pass the Judiciary Act (S.1141), a bill now on the Senate docket, which would increase the number of Supreme Court Justices from 9 to 13.
“Supreme Court Justices do not live in a vacuum. The media will report a groundswell of support for enlarging the Court. Even if it does not happen immediately, the threat of expansion may be enough to slow or stop the reactionary majority’s religious and social agenda.”
With regard to precedent, Hubbell has also pointed out that when Mitch McConnell was Senate Majority Leader in 2016, he effectively reduced the number of Supreme Court Justices to 8 by refusing to allow a vote—or even hearings—on President Obama’s nominee, Merrick Garland. McConnell claimed it was too close to the Presidential election that was, in fact, nine months away.
Then, in 2020, McConnell increased the number to 9 by rushing through Amy Coney Barrett’s nomination on October 27, just weeks before the Presidential election.
This Supreme Court majority is out of sync with the majority of Americans. We must do what we can to prevent the wholesale turning back of the clock on our rights.