Can America still settle its political conflicts democratically, and peacefully? We’re about to find out after the Supreme Court Friday overturned Roe v. Wade and returned the profound moral issue of abortion to the states and democratic assent, where it has always belonged.
Critics say the Court’s 6-3 decision in Dobbs v. Jackson Women’s Health Organization is rule by unelected judges. But Roe was the real “exercise of raw judicial power,” as Justice Byron White put it in dissent in 1973. That’s when seven Justices claimed to find a constitutional right to abortion that is nowhere mentioned in the Constitution and had no history in American common law. The Court on Friday finally corrected its mistake, which has damaged the legitimacy of the Court and inflamed our politics for 49 years.
The Justices in the majority deserve credit for sticking with their convictions despite the leak of Justice
opinion in May. The leak was probably intended to create a furor to pressure the Justices to change their mind, and it has led to protests in front of their homes and even an apparent assassination attempt against Justice
By holding firm, they showed the Court can’t be intimidated.
Justice Alito’s majority opinion hews closely to his draft, and it is a careful, thoughtful survey of abortion law and its history in the constitutional order. His opinion takes apart, brick by logical brick, the reasoning of Roe and Planned Parenthood v. Casey, the other main abortion precedent the Court overrules in Dobbs.
The central point, underscored by Justice Kavanaugh in his concurrence, is that abortion can be found nowhere in the Constitution. The parchment is neutral on the issue. The supporters of an abortion right claim to have found it in the due process clause of the 14th Amendment, which was ratified in 1868. But until the latter part of the 20th century, the idea of a right to abortion could be found nowhere in American law. No state constitutions included it, and until shortly before Roe no court had recognized such a right. Justice Harry Blackmun ignored that history and invented the right in Roe.
Casey entrenched Roe in 1992, yet it did so without considering that history, while asserting that abortion was part of a gauzy right to privacy that includes “intimate and personal choices.” The three controlling Justices in Casey sought to balance that right against the “potential life” of a baby in the womb.
But their judgment of how to strike that balance supplanted the moral choices of millions of Americans. “Our Nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated,” writes Justice Alito.
The three dissenting Justices claim the majority has steamrolled the doctrine of stare decisis, or respect for precedent. But Justice Alito’s opinion deals step by step with the Court’s traditional stare decisis analysis, and his most telling point is that Roe and Casey haven’t come close to settling the issue.
The controlling Justices in Casey went so far as to make an essentially political plea that Americans let their ruling settle the abortion issue. It was a futile attempt to end debate on a question that touches people at their deepest moral convictions. Abortion continues to roil American politics, and states continue to pass laws challenging the logic of both opinions. When a ruling is still controversial and unworkable after five decades, that is compelling evidence it was wrongly decided.
writes in a concurrence that the Court did not have to overturn Roe to uphold Mississippi’s ban on abortion after 15 weeks in this case. He says this would have been more judicially modest and less jolting to the public.
We agree on his point about upholding the Mississippi law, but such a halfway ruling would only have been a legal holding action. More states would have written more laws that would have challenged Roe and Casey, and sooner or later the Court would have had to overrule both or uphold some remnant of them as settled law. Better to take this opportunity to return the issue to the states sooner rather than later.
The political left is making much of Justice
argument in a concurrence that the Court should revisit all of its precedents that are based on the use of substantive due process to find rights in the Constitution. That includes precedents on contraception and gay marriage.
Substantive due process is a long-time preoccupation of Justice Thomas, and we respect him for it. But the doctrine is also deeply embedded in countless Court precedents that have far better stare decisis claims than does Roe. Overturning the Obergefell ruling on gay marriage, for example, would jeopardize hundreds of thousands of legal marriage contracts. That’s the definition of a reliance-interest justification for upholding a precedent. Justice Thomas also acknowledges in his concurrence that abortion is different from these cases, and note that no other Justice joined his opinion.
Which brings us back to the politics of abortion and democracy. The debate will now shift from courts to the political branches, which should be healthy for the judiciary. Democrats made clear on Friday that they will make abortion rights a major campaign theme in the midterm elections, and President Biden declared that “this is not over.”
Fair enough. Both sides of the abortion debate will now have to achieve their policy goal the old-fashioned way—through persuasion, not judicial fiat. Some in the pro-life movement want Congress to ban abortion nationwide. But that will strike many Americans as hypocritical after decades of Republican claims that repealing Roe would return the issue to the states.
A national ban may also be an unconstitutional intrusion on state police powers and federalism. Imposing the abortion values of Mississippi or Texas on all 50 states could prove to be as unpopular as New York or California trying to do the same for abortion rights.
One tragedy of Roe is that it pre-empted an abortion debate that was moving in the states a half century ago. That debate can now resume. Some states will ban it in most cases, while others like California may seek to pay for the abortions of women from other states.
It will take awhile, and more than one election, but we hope that eventually the public through its legislators will find a tolerable consensus, if not exactly common ground. That’s the best we can ask for in our imperfect republic, if we can keep it.
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