The Supreme Court erases the constitutional right to abortion

NEARLY a half-century after five Republican-appointed justices joined two Democratic appointees to recognise a woman’s right to abortion, a different quintet of GOP-tapped justices has voted to eliminate it. On June 24th, the Supreme Court renounced Roe v Wade, the 1973 case that legalised abortion nationwide, and Planned Parenthood v Casey, the decision that extended it, with modifications, in 1992. The vote was 6-3, with all but Chief Justice John Roberts voting to scrap Roe entirely.

Dobbs v Jackson Women’s Health Organisation, the watershed case marking the end of Roe and Casey, began as a run-of-the-mill challenge to a run-of-the-mill abortion law in Mississippi. Next to draconian bans passed in 2019 in neighbouring Georgia and Alabama, Mississippi’s HB1510, enacted a year earlier, was comparatively moderate. It prohibited abortion at 15 weeks of pregnancy, with exceptions only for medical emergencies or severe fetal abnormalities. A federal district court promptly blocked HB1510 as unconstitutional and the highly conservative Fifth Circuit Court of Appeals agreed.

These courts had little choice: under Roe and Casey, abortion could be regulated, but not banned, prior to fetal viability—the point at about 23 or 24 weeks when a fetus can survive outside the womb. Lower courts must follow the Supreme Court’s prevailing interpretation of the constitution. But in a concurring opinion at the appeals court, Judge James Ho, an appointee of Donald Trump, argued that abortion is the “immoral, tragic and violent taking of innocent human life” and encouraged the Supreme Court to rethink its precedents. Thanks to three new justices seated by Mr Trump, the court has done just that. Mr Trump’s pledge during the 2016 campaign—that Roe would “automatically” disappear if he had a chance to reshape the Supreme Court—has been fulfilled.

A strong hint Dobbs would end up this way arrived on the evening of May 2nd, when a draft majority opinion by Justice Samuel Alito was leaked to Politico, a political news site. The draft, like the official ruling just handed down, blasted the jurisprudential underpinnings of a purported right to abortion and implicitly called into question the wisdom of the 15 justices who signed Roe 49 years ago or voted to extend it in the ensuing decades. The unprecedented leak put Americans on notice that the most stunning reversal of a constitutional right in history was about to transpire—as long as Justice Alito managed to hold onto the five-justice majority agreeing to the about-face.

The majority has held. Justice Alito’s opinion for the court calls Roe “egregiously wrong” and lambasts the notion that abortion was ever thought to be a “fundamental constitutional right” protected under the 14th Amendment’s prohibition on states “depriv[ing] any person of life, liberty or property, without due process of law”. Before 1973, he writes, most states banned abortion. The purported right cannot be said to be “deeply rooted” in America’s “history and traditions”, so the fraught moral question should be handled by legislators representing the people of the fifty states, not settled for all by nine justices.

Justices Clarence Thomas, Neil Gorsuch, Amy Coney Barrett and Brett Kavanaugh all signed Justice Alito’s opinion. But in a concurring opinion, Justice Kavanaugh emphasised what he sees as the constitution’s “neutral” perspective on abortion. The constitution is “neither pro-choice”, he wrote, “nor pro-life”. Justice Thomas’s concurrence made the more radical argument that all decisions grounding rights in the Due Process Clause are highly questionable. The court “should reconsider all of this Court’s substantive due process precedents”, he wrote, “including Griswold, Lawrence and Obergefell”–decisions that protect the rights to contraception, sexual intimacy and marriage equality for gays and lesbians. “[W]e should eliminate” the foundation for these rights “from our jurisprudence at the earliest opportunity”.

Chief Justice John Roberts agreed with the majority that Mississippi’s 15-week ban should be upheld, but he refused to join Justice Alito’s opinion dispensing with Roe entirely. Principles of stare decisis (Latin for “let the decision stand”) are enough to keep Roe around, the chief said. But the viability line has little to recommend it. For Chief Justice Roberts, states should be able to ban abortion at some point before viablity as long as most women are still able to terminate their pregnancies. But “altogether eliminating the abortion right first recognized in Roe” is, in his view, unnecessarily “dramatic step”.

The court’s three liberals were scathing in dissent. In a rare joint opinion, Justice s Stephen Breyer, Elena Kagan and Sonia Sotomayor condemned the majority for “discard[ing]” the “balance” that the court had struck for five decades between a woman’s right to terminate a pregnancy and states’ legitimate interest in protecting fetal life. The five justices who voted to scrap Roe, they wrote, have announced that “from the very moment of fertilisation, a woman has no rights to speak of”. The majority’s suggestion that it is simply turning over the matter to state legislatures is “cold comfort”, the liberal trio wrote, “for the poor woman who cannot get the money to fly to a distant state for a procedure. Above all others, women lacking financial resources will suffer from today’s decision”.

And the dissent sketched a picture of the moral arc of justice bending the wrong way. “After today”, they wrote, “young women will come of age with fewer rights than their mothers and grandmothers had”. The five justices’ “refusal even to consider the life-altering consequences of reversing Roe and Casey is a stunning indictment of its decision”.

The jurisprudential fallout of Dobbs will come into full view only with time. Will other rights protected via the due-process clause—from sexual intimacy to gay marriage—come under threat, as Justice Thomas suggests they should? Will courts allow states to prohibit purportedly “abortifacient” birth-control methods like the IUD or the morning-after pill? The court’s ruling says it pertains to abortion rights alone, but the foundation of its rejection of Roe is the same basis justices in the majority have used to defend anti-sodomy laws and oppose marriage equality.

The practical significance of Dobbs for abortion access will very quickly be felt by women in a number of states. Trigger bans—laws banning abortion set to tick into effect as soon as the Supreme Court terminates Roe—will spring to life in 13 states: Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah and Wyoming. Other bans are very likely to follow. As America transforms overnight into a patchwork quilt of abortion rights, efforts to widen access for women in abortion-hostile states (including abortion funds, to pay for travel and medical expenses) will rise. Abortion medications will get a boost, too, as workarounds for shuttered clinics that are available through the post.

In May, Senate Democrats tried to hedge against a possible Roe reversal by voting on the Women’s Health Protection Act, a bill barring most restrictions on abortion that passed the House (largely on party lines) last September. Once in the Senate’s hands, the vote fell 11 votes short of the 60-vote threshold to avoid a filibuster: all Republicans and one Democrat, Joe Manchin of West Virginia, opposed it. With the constitutional right to terminate a pregnancy now officially in the Supreme Court’s dustbin, calls to codify abortion rights will be renewed. But chances of getting such a bill passed remain low: Mr Manchin has said he would not vote to alter the filibuster rule.

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