They did it because they could.
It was as simple as that.
With the stroke of a pen, Justice Samuel Alito and four other justices, all chosen by Republican presidents running on successive party platforms committed to overturning Roe v. Wade, erased the constitutional right to reproductive autonomy that the Supreme Court recognized more than 49 years ago. As the dissenting opinion — written by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan — observed, never before had the court rescinded an individual right and left it up to the states whether to respect what had once been anchored in the Constitution.
The practical consequences of the decision, Dobbs v. Jackson Women’s Health Organization, are enormous and severe. Abortion, now one of the most common medical procedures, will be banned or sharply limited in about half the country. Excluding miscarriages, nearly one in five pregnancies ends in abortion in the United States, and one American woman in four will terminate a pregnancy during her lifetime. Two generations of women in this country have come of age secure in the knowledge that an unintended pregnancy need not knock their lives off course. “After today,” as the dissent pointed out, “young women will come of age with fewer rights than their mothers and grandmothers had.”
What the court delivered on Friday is a requiem for the right to abortion. As Chief Justice John Roberts, who declined to join Justice Alito’s opinion, may well suspect, it is also a requiem for the Supreme Court.
Consider the implication of Justice Alito’s declaration that Roe v. Wade was “egregiously wrong” from the start. Five of the seven justices in the Roe majority — all except William O. Douglas and Thurgood Marshall — were appointed by Republican presidents. The votes necessary to preserve the right to abortion 19 years later in Planned Parenthood v. Casey, the Roe follow-up decision that the court also overturned on Friday, came from five Republican-appointed justices.
In asserting that these justices led the court into grave error from which it must now be rescued, Justice Alito and his majority are necessarily saying that these predecessors, joining the court over a period of four decades, didn’t know enough, or care enough, to use the right methodology and reach the right decision. The arrogance and unapologetic nature of the opinion are breathtaking. (Of the justices who decided Casey in 1992, the only member of the court still serving is Justice Clarence Thomas, a dissenter then, who wrote in a concurring opinion on Friday that now that the court has overturned the right to abortion, it should also reconsider its precedents on contraception, L.G.B.T.Q. rights and same-sex marriage.)
The dissenting justices wrote on Friday, “The majority’s refusal even to consider the life-altering consequences of reversing Roe and Casey is a stunning indictment of its decision.” They observed, “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.”
Those sentences are as terrifying as they are obviously correct. Where do they leave the court, now having voluntarily shed the protection offered by its usual stance that it is simply the passive recipient of the disputes that the public brings to its door?
For several years, members of the new majority have been openly inviting opportunities to revisit Roe and Casey, just as the same justices, principally Justices Thomas and Alito, spent years inviting the gun lobby to bring cases affording an opportunity to expand on the Second Amendment analysis of the 2008 Heller decision; that campaign culminated on Thursday with the decision in the New York State gun-licensing case. That case, New York State Rifle & Pistol Association v. Bruen, of course, did not overturn an old right but expanded on a new one.
The court engaged in no such outreach at the time of Roe. To the contrary, the case reached the Supreme Court under a jurisdictional statute, since repealed, that required it to rule on the merits whenever a federal court had invoked federal constitutional grounds to invalidate a state law. A special three-judge Federal District Court, convened under that statute, had declared unconstitutional the Texas law that made abortion a crime except to save a pregnant woman’s life.
For the court to decide to take on Roe v. Wade, in other words, was the opposite of judicial activism. Friday’s ruling, meanwhile, was judicial activism’s epitome: A federal appeals court had blocked a Mississippi law on the ground that the law’s ban on abortion after 15 weeks of pregnancy was obviously inconsistent with Roe and Casey. (Those decisions protected the right to abortion up until fetal viability, or about 24 weeks.) The state originally asked the justices to decide whether a ban on abortion before viability was always unconstitutional. Over Chief Justice Roberts’s objection, the majority opinion went further, eliminating the right to abortion in its entirety.
In a concurrence, the chief justice underscored just how aggressive the majority opinion was, writing: “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.” He added that “its dramatic and consequential ruling is unnecessary to decide the case before us.”
But Justice Alito declined that call for restraint. The chief justice’s “quest for a middle way would only put off the day when we would be forced to confront the question we now decide,” Justice Alito wrote. “The turmoil wrought by Roe and Casey would be prolonged. It is far better — for this court and the country — to face up to the real issue without further delay.”
There will be turmoil now, for sure, as the country’s highways fill with women desperate to regain control over their lives and running out of time, perhaps followed by vigilantes across state lines. But the only turmoil that was caused by Roe and Casey was due to the refusal of activists, politicians and Republican-appointed judges to accept the validity of the precedents. Justice Alito’s reference to “turmoil” reminded me of nothing so much as Donald Trump’s invocation of “carnage” in his inaugural address. There was no carnage then, but there was carnage to come.
Forty-nine years is a long time, but professional lives, including mine, are long as well. I was a freshly minted journalist at The Times in 1969 when I received an assignment to write about the growing controversy over abortion. I immersed myself in the issue, interviewing and learning from lawyers on both sides of the debate. On Jan. 25, 1970, The New York Times Magazine published my article under the headline “Constitutional Question: Is There a Right to Abortion?” It was, I believe, the first article in a general-interest publication to survey the nascent constitutional arguments, and it has been quite widely reprinted. When I finished reading Friday’s decision in preparation for writing this essay, I realized that I will have chronicled this profound issue across its entire arc, a perspective I never could have anticipated.
Except, of course, that the story isn’t over. Although Justice Brett Kavanaugh proclaimed with evident relief in his concurring opinion that the court was now bowing out of the picture and “will no longer decide how to evaluate the interests of the pregnant woman and the interests in protecting fetal life throughout pregnancy,” that is not likely to be the case. Those pesky women will keep coming up with problems: What about pregnancy-related medical issues short of imminent death? Rape? Incest? Fetuses doomed to die in the womb or shortly after birth? Will young teens be forced to bear children? Will women who receive a prenatal diagnosis of a serious fetal anomaly be forced to bring a child into the world whom they can’t care for adequately and in whom the state has little postnatal interest? What happens when states start prosecuting not only doctors but women?
Justice Alito has an answer to these questions: “rational basis.” A law regulating abortion, he writes, “must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests.” And what might be such an interest? The list of “legitimate interests” is frightening:
With the exception of the first and second interests — the Casey decision itself recognized the state’s interest in unborn life throughout pregnancy — these are anti-abortion dog whistles. The “particularly gruesome” procedures include a common method of second-trimester abortion that some states have tried to outlaw. The “integrity” of the medical profession is a slam on doctors whom Friday’s majority refers to as “abortionists.” The “fetal pain” issue is a canard, as fetuses lack the neural development to experience pain until late in pregnancy. And the discrimination issue refers, at least in part, to current state laws that would criminalize the abortion of fetuses with a Down syndrome diagnosis; currently, most such pregnancies are terminated.
And the dissenting opinion asks, “What about the morning-after pill? IUDs? In vitro fertilization?” Or medical management of miscarriage, often by the same methods used for abortion?
No, justices, your work isn’t done. What you have finished off is the legitimacy of the court on which you are privileged to spend the rest of your lives.
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