What some insisted was a still-incubating draft majority decision overturning Roe v. Wade was fully born Friday: The Supreme Court has completely dismantled Roe and the series of cases upholding that core precedent, giving the states the ability to ban abortion starting from the moment of conception.
Coming on the heels of Thursday’s ruling essentially creating a national right to carry a concealed firearm, this is breathtaking proof of the conservative 6-3 supermajority’s willingness to cherry-pick its rationale to advance clearly predetermined positions.
In the gun ruling, the court blatantly ignored all contrary history and the Second Amendment’s “well regulated Militia” clause to assert a radical individual right to self-defense, no matter individual states’ interest in restricting access to handguns. In the abortion ruling, there’s a similarly blinkered, revisionist retelling of history to assert that the United States at the time of the founding never recognized any abortion right, as though that necessitates a conclusion that today, the Constitution should extend would-be American mothers no right to control the fate of the being growing inside their wombs at any point.
This will mean in many states, rape and incest victims will have no freedom to terminate their pregnancies. Actually, let’s revise that: Poor women who can’t afford a bus or plane ticket will lack that freedom, and will be forced to bring a child to term and potentially risk their own lives. Women of means, who can get to New York, California, Canada or Mexico, will be just fine. And though women who have been raped might be the most sympathetic cases, there are thousands of women who (overwhelmingly, early in their pregnancies) choose to terminate pregnancies for a range of reasons. There are now essentially no limits on states’ power to override those anguished personal judgments. In 13 states with “trigger bans,” no additional legislation will be necessary; the abortion prohibitions have now automatically begun.
As for in-vitro fertilization, in which, to address challenges couples face in conceiving, multiple embryos are created and typically only one implanted, it’s only a matter of time until that’s banned in many states on grounds that no embryo shall ever be destroyed.
Roe’s “viability” cutoff was arguably problematic; a saner concurrence by Chief Justice John Roberts suggests it might have been replaced with a new demarcation line, whereby Mississippi’s ban on abortions after 15 weeks would’ve been upheld on the ground that women had ample opportunity to get an abortion. Instead, Samuel Alito and the majority (Roberts included, for some reason) shred Roe and its half-century of precedent, start to finish.
The dissent by Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor masterfully dissects the hypocrisy of the majority that roots its rejection of a long-established right in the deeply disputed claim that the same right is not deeply rooted in American history — yet somehow offers parallel reassurances that other rights that were also not recognized in the earliest days of the republic, such as the right to contraception, are safe. On what basis? None.
With the abortion and gun rulings coming down in successive days, there is no remaining doubt: It is the three liberals on the court who are conservative, and who have a healthy respect for the nation whose laws they interpret. It is the supposed conservatives who are radicals in blind pursuit of their purist ideology.
The result will be a nation losing faith in an institution that, for all its flaws, has been one of the strongest remaining threads holding our increasingly divided nation together. Where this all leads, we shudder to say.
