At its best, America is a nation where individuals come together to secure rights for all.
That ideal suffered a severe blow on Monday when Politico published a report on a draft U.S. Supreme Court decision to overturn Roe. v. Wade, which in 1973 made abortion a constitutional right.
The document sent shock waves across the country, and for legitimate reason. Not only did it threaten to strip away the rights and dignity of women, it also, by upending decades of settled law, raised fears about what other constitutional rights might be next to fall at the hand of this far-right court. Civil rights laws? The use of contraception? Any other rights people have long relied on over time, but that the current majority of justices happens not to like?
If conservatives have been coming after elementary books that mention “gay” to get votes and advance politically, what will stop them from reversing the 2015 decision to legalize same-sex marriage? That’s only one scenario to fear.
As President Joe Biden said, the ruling — if it becomes final — will undermine protections on personal privacy, including who someone can marry or whether to conceive a child. Biden is correct when he says the “stability of our law” requires the high court not overrule Roe, which has been in place almost 50 years.
The document is a draft ruling in Dobbs v. Jackson Women’s Health Organization, a case challenging a Mississippi law that bans abortions after 15 weeks of pregnancy. Supreme Court precedents have set it at viability outside the womb, which is around 24 weeks.
Yes, there have been times in the court’s past when a draft by persuasive and dissenting justices became the majority opinion. That could happen here before the official ruling is handed down. But the mocking tone of this draft suggests that is unlikely to happen this time. Moreover, the draft reflects what many observers had expected to see in the final decision.
If Roe and the related case, Planned Parenthood of Southeastern Pennsylvania v. Casey, are overturned, it will be up to the states to decide abortion policy. In Illinois, anyone would have a right to an abortion under a 2019 law. But 13 states already have laws in place that would promptly ban abortion should Roe be overturned. Twenty-six other states are poised to do so, according to Planned Parenthood.
The pain will be real. Women of lesser means living in those states will find it hard, if not impossible, to get abortions. The medical horror stories of self-induced abortions, thought to be consigned to the past, will return. Lives will be shattered — or lost. Women could face criminal prosecution for obtaining abortions.
Yet women with more resources will — as they always have, even before Roe — be able to travel to gain access to safe reproductive treatment.
Ignoring legal precedent
Traditionally, the Supreme Court adheres to the concept of stare decisis, which calls for courts to follow historical decisions by the court when deciding a new case that is similar. At times, the court has not followed stare decisis when it is abundantly evident an earlier case was wrongly decided. The best known example is 1954’s Brown v. Board of Education, which reversed Plessy v. Ferguson’s “separate but equal” doctrine.
By being so willing to overturn long-standing case law, such as Roe, Citizens United and Janus v. AFSCME, which upended decades of settled labor law, this court has sparked fears about what else it might overturn, including Brown.
The statements of sitting justices during the confirmation process are of little reassurance. Justice Brett Kavanaugh described Roe as “settled as precedent” and supported by “precedent on precedent.” Justice Neil Gorsuch called it “settled law” and “law of the land.” Yet both, according to the draft, have now voted to overturn Roe.
Angry pro-choice advocates blame what they see as two sneakily stolen seats on the court and three justices appointed by a president who lost the popular vote. The senators who voted to confirm these justices also are responsible for a decision that comes even as abortion laws are being liberalized in other countries around the world.
The U.S. Senate could make the court’s ruling moot by voting for the Women’s Health Protection Act, which has already passed the House and which would make abortion legal across the country. But without a court embedding that right in the Constitution, it could be overturned if Republicans regain control of the White House and Congress.
As a nation, we should have learned the dangers of enacting laws, such as Prohibition, that lack popular support. Most Americans support access to abortion. With this draft ruling, distrust of the nation’s highest court — already on the rise — is sure to grow, further threatening the nation’s already-fragile unity.
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