Overturning Roe v. Wade is not the first time the Supreme Court has driven a dagger into the heart of human rights and further divided a deeply troubled nation. But not since the 19th century have there been other decisions so dreadfully indefensible and consequential.
Friday’s announcement in the Mississippi abortion case, no less shocking for having been leaked months ago, is a new chapter in infamy, as pernicious as Dred Scott v. Sandford in 1857 and Plessy v. Ferguson in 1896.
Dred Scott brought on the Civil War, holding that Blacks could not be citizens, with no rights worthy of respect, and that Congress could not ban slavery in the territories. Plessy condoned separate but equal and legalized much of slavery under the guise of Jim Crow. Millions suffered, and still suffer, from the lingering consequences.
Now the court has ruled that women — more than half of our population — have no rights that politicians or judges are bound to respect other than perhaps the right to vote, which is specified in the Constitution. More than half the states are expected to ban abortion entirely. Thirteen of them have “trigger” laws in place.
The decision is particularly astonishing because as Chief Justice John Roberts pointed out, the court could have upheld Mississippi’s law without overturning Roe. What it did was judicial activism at its wildest, utterly violating what judicial conservatives claim to believe and what the court has long practiced.
Moreover, as the three dissenters warned, other vital precedents are now vulnerable, notably the 1965 decision in Griswold v. Connecticut overturning a state ban on contraception. That established the constitutional right of privacy on which Roe was based eight years later.
More recent decisions ending sodomy laws and legalizing same-sex marriage are likely endangered, too, considering the court’s flagrant disrespect for settled law that unsettles religious zealots.
The most radical of the reactionary justices, Clarence Thomas, said outright in his concurring opinion that Griswold and the others should be reconsidered. It’s odd he didn’t mention Loving v. Virginia, which outlawed bans on interracial marriages — like his own. But if the others are imperiled, logically so is that.
Friday’s decision will prevent only legal, safe abortions. Women with enough time and money to travel to states like California will still obtain them. Those who can’t will bear children whom they can’t afford to care for properly or obtain abortions under life-threatening conditions.
In some states, women will be forced to bear a rapist’s child, or their own father’s.
As Justice Stephen Breyer’s dissent made plain, “Across a vast array of circumstances, a state will be able to impose its moral choice on a woman and coerce her to give birth to a child.”
Afghanistan’s Taliban have American counterparts. The coat hangers and back-alley butchers are back.
They’re not back in Florida — yet. In 1989, the Florida Supreme Court established abortion as a protected right under Florida’s constitutional privacy provision.
But with a state court that refuses to respect other precedents, abortion rights are imperiled in Florida. The Legislature can’t be trusted to respect the privacy provision and neither can Gov. Ron DeSantis, the right-wing social warrior.
In praising the Mississippi decision Friday, DeSantis said Florida will “continue to defend its recently enacted pro-life reforms against state court challenges, will work to expand pro-life protections and will stand for life by promoting adoption, foster care and child welfare.” That means he wants more than Florida’s recent ban on abortion after 15 weeks.
All of this calls to mind the one right we mentioned earlier — the right to vote. Although it has been true that the Supreme Court often follows election returns, the justices may be counting on the economy commanding most people’s attention these days. From that perspective, this was a safe time to repeal basic human rights. It shouldn’t be.
Florida women and the men who love them are entitled to hold it against Sens. Marco Rubio and Rick Scott and for voting to confirm untrustworthy Justices Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett, who had professed under oath to respect settled precedents. Rubio, who’s seeking reelection in November, quickly praised the court’s diabolical decision.
Floridians should also hold it against DeSantis, who’s also up for reelection this fall, for appointing four far-right justices to the Florida Supreme Court. Abortion rights are not safe with them, either. Elections matter.
One of the singularly ominous aspects of Justice Samuel Alito’s anti-abortion decision echoes the rationale of Thomas’ majority opinion the day before against New York’s gun licensing law. Both rely heavily on ancient legislative history, as if present-day realities were inconsequential.
As Breyer pointed out, “Because laws in 1868 deprived women of any control of their bodies, the majority approves states doing so today. … Today’s decision strips women of agency over what even the majority agrees is a contested and contestable moral issue.”
Until recently, the Supreme Court regarded the Constitution as a living document written with the future in mind; as a framework for a new nation. Alito, Thomas and their fellow travelers are hellbent on turning it into a straitjacket, and they are well on their way to succeeding.
It will be difficult for Congress to do much about the Supreme Court, considering the paralyzing influence of the filibuster, the questionable alternative of packing the court with additional seats, and the difficulty of amending the Constitution. But the necessary debates must begin. The present Supreme Court is untenable.
There needs to be a constitutional amendment to protect abortion rights and enshrine personal privacy as a human right. No matter the difficulty, that battle begins now. The 2022 election is more important than ever.
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