SCOTUS consigns Roe to dustbin of history
Plus Congress passes the gun bill
In the worst-kept secret in Supreme Court history, the Court capped off a momentous week by striking down the notion of a constitutional right to abortion with a reversal of Roe v. Wade. The decision came almost two months after a draft opinion was leaked in early May, kicking off a controversy not only about the prospect that the half-century-old precedent would be overturned but about the security of information within the Court itself.
As with the draft opinion, the final opinion in Dobbs v. Jackson Women’s Health Organization is authored by Justice Samuel Alito. The majority opinion was joined by Justices Thomas, Gorsuch, Kavanaugh, and Barrett. Justices Thomas and Kavanaugh and Chief Justice Roberts filed concurring opinions. Justices Breyer, Sotomayor, and Kagan dissented, making the ruling 6-3.
The opinion can be summed up by one paragraph in which Alito wrote, “Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. The Court overrules those decisions and returns that authority to the people and their elected representatives.”
The next few days, weeks, and months will be filled with weeping and gnashing of teeth. While I support the decision, I don’t think that any of us know exactly what the Supreme Court has wrought. We won’t for quite some time.
I do think that we can say some things for sure. First and foremost, the Supreme Court has not banned abortion. We are going to see some states heavily restrict the practice while others take a more laissez-faire approach. The Guttmacher Institute estimates that 26 states are likely to ban abortion or nearly so.
I don’t believe that the abortion battle is over. In addition to moving the frontlines of the issue to statehouses and courts, we will see pro-choice challenges to the strictest legislation to determine how far is too far for state regulation. For example, the Mississippi law that the Court upheld today has an exception for health and rape, but some states are considering or have passed laws with no such exemptions. Look for these laws to be challenged.
A Texas abortion law is also winding its way through the legal system. The Texas law puts the onus of enforcement on private lawsuits rather than state action. Texas already has a trigger law set to take effect in the event that the Supreme Court struck down Roe, but the private enforcement law has not been rendered moot by the Dobbs decision. We may not have seen the end of cases relating to the Texas law’s enforcement mechanism of private lawsuits, a method that is ripe for abuse on many controversial issues.
There are other issues that could come before the Court as well. Some states are considering legislation that attempts to prevent their citizens from traveling to other states or countries to obtain abortions. In some cases, this goes beyond prohibitions on fundraising and planning to attempting to regulate the behavior of state residents while in another jurisdiction. The Court may be also called upon to decide whether a woman has a right to abort an ectopic pregnancy in which the unborn baby has no chance of survival and the woman’s life is threatened.
Where we’ve seen pro-life legal challenges seeking to regulate at the edges of the abortion issue in past decades, we will likely now see the reverse. Pro-choice challenges will seek to invalidate regulations at their margins.
And then there is the question of the abortion pill. It will be easy to close down clinics but preventing illicit trafficking of abortifacients will be much more difficult. Under President Trump, the abortion rate increased for the first time in decades. That is probably due largely to the increased availability of abortion pills.
There may also be an attempt to enact federal legislation that would codify abortion rights into law. This has no chance of becoming law as long as there are enough Republicans to maintain a filibuster.
A big question is how the bombshell ruling will affect elections. I don’t think that anyone knows for sure. Voters who considered abortion a primary issue were already almost all aligned with the party that carried their banner. Removing the issue of abortion from federal politics may help to decouple campaigns from the abortion debate.
Like the proverbial dog who caught the car, Republicans may not know what to do with their victory. After an initial wave of state bans, it will be difficult to maintain the sense of urgency and crisis that the long campaign to overturn Roe engendered. We may eventually reach an equilibrium where the issue recedes from public consciousness.
States with strict abortion laws may see an uptick in births, which may lead to more budgetary pressures. If more women have children outside of marriage and without stable sources of income, states may find that they have to commit more resources to supporting children of low-income families. Ironically, a 2020 study found that abortion rates were lower in countries with legal abortion and accessible contraception. Restrictive states will be forced to decide whether to extend more contraception benefits to younger girls and low-income women in an attempt to prevent the pregnancies that many women would have terminated.
In the near term, Democrats may see an increase in engagement while Republicans disengage. Pro-choice voters will be angry while pro-lifers may find it harder to ignore the corruption that has become endemic within the GOP.
Today’s ruling is monumental, but at least in the short term, it won’t change the country as much as you might think. States where abortion is already heavily regulated will become a bit more strict. In states where abortion is legal, it will remain so. We will see a bit more traffic in women traveling to abortion-friendly states.
While I support the Supreme Court’s decision to overturn Roe, I don’t necessarily support the most restrictive laws against abortion. In particular, health realities need to be considered and the Court needs to strike down the dangerous Texas law.
In the end, reducing the number of abortions is going to mean taking preventive steps to lower the number of unwanted pregnancies. Laws that prohibit elective abortions are a good thing, but changing attitudes and behaviors is going to be key.
CONGRESS PASSES GUN BILL: More breaking news is that the House and Senate have both passed the compromise gun bill. The legislation now goes to President Biden and will give the Democrats a much-needed victory. The law will hopefully help to prevent people who are dangerously mentally ill from obtaining guns.
The law does not impose a federal red flag law, so the focus here will move to the states also.
From the opinion:
"Sir Matthew Hale likewise described abortion of a quick child who died in the womb as a 'great crime' and a 'great misprision.' Pleas of the Crown 53 (P. Glazebrook ed. 1972); 1 History of the Pleas of the Crown 433 (1736) (Hale)."
Surprised that Alito stuck to his guns and continued to cite Hale, who was a fan of spectral evidence in witch trials:
"The use of spectral evidence was introduced to the court by William Stoughton, the recently-appointed Lieutenant Governor of Massachusetts, who served as the court’s chief justice. According to Reverend John Hale, who witnessed the proceedings, the court based its use of spectral evidence on the opinion of Matthew Hale, a leading legal authority in England, who admitted spectral evidence in a criminal trial for witchcraft over which he presided. Record of that trial appeared in a 1682 publication called A Tryal of Witches taken from a contemporaneous report of the proceedings of the Bury St. Edmunds witch trial of 1662. Reverend John Hale noted that the Salem judges possessed and referred to a copy of that book as the justification for the practice."
I was surprised that Roberts went off on his own instead of joining the majority and assigning himself the opinion to write, or assign it to Gorsuch to pen a brief Textualist-flavored opinion like the one you pulled out of Alito's larger document. (As someone who leans most towards Textualism, that's what I would have personally preferred.)
Interesting days ahead of us all. Not much will change for us in Illinois - other than IL becoming a place for our Southern and Midwestern neighbors to visit to have the procedure done - where does current (or forthcoming) Georgia law stand on abortion?
I also think the GOP will try to distract from the mess they've made by shifting the battles lines. The new front in the culture wars will be a nationwide ban on abortion and rescinding gay marriage. Something Thomas (J) had already called for (which is outrageous in itself. After all jurors are asked to set aside prior knowledge, bias, assumptions and personal preference when committing to judge fairly. Should a SC judge do the same. This guy isn't even attempting to show impartiality).
It shows the duplicity in Chief Justice Roberts statement that the court is not political. And so the court becomes just another institution that no one trusts.