Opinion: The Supreme Court seems poised to kick off a political and social earthquake

Would the Court consider viability (the ability of a fetus to survive outside the womb) as a dividing line and find it more constitutionally binding than any other? Or will the conservative majority of the Court help Mississippi win by concluding that the Constitution does not protect the right to choose abortion?

Before Wednesday, the second path – abolishing abortion rights – seemed harder to envision, simply because generations of Americans have grown up taking abortion (and Roe) rights for granted. To overturn the 1973 decision would be a poignant declaration of women’s freedom and autonomy – a social and political earthquake that would fundamentally change the lives of many.

Reversal Roe would encourage anti-abortion lawyers to ask the Court for more – including a decision that a fetus is a right holder and that abortion is unconstitutional Everywhere in America.
The decision to remove Roe means that somewhere between 20 and 25 states will criminalize virtually all abortions, which changed the lives of people across large swaths of the South and Midwest. And overestimating Roe probably wouldn’t go against popular opinion – more than half of Americans do not want the right to abortion removed – put the Court at risk of a backlash that could damage the Court’s public standing and initiate conversations about court reform.
In light of Wednesday’s argument, it appeared the judges might want to avoid delivering that kind of political defeat, at least immediately. The story of Texas’s SB8 – another piece of legislation currently being considered by the Court following arguments last month – seems to suggest much of the same. That abortion law prohibits abortions as early as six weeks – about two weeks after someone can know for sure they are pregnant – and outsourced enforcement to any private citizen who has can sue people who have performed abortions or support those looking for them.
Things are not going well for Texas in the Supreme Court
The court allowed SB8 to go into effect in September, but then the popularity of the judges dropped nose. That drop, observed shortly after the court refused to block SB8, most likely has to do with more than just abortion, but many Americans increasingly see judges as partisan, and they don’t like it. that’s a little bit.
The judges didn’t seem to be happy about that either. Some have come to the microphone to assert that the judges are not, in the words of Amy Coney Barrett, “partisan hacking. “Then the Court put SB8 on a quick and seemingly serious abortion problem. That hardly meant Roe was safe. But for many observers, it shows that judges are worried about managing the political consequences of abolishing abortion rights.

In the Dobbs case, some observers wondered whether the Court’s conservative judges wanted to deal a blow against abortion rights while minimizing the damage to the Court’s institutional legitimacy. One possible way to do it: say that the possibility line doesn’t make sense and stop there.

At Wednesday’s debate, Chief Justice John Roberts appeared to be thinking only that. He seems to acknowledge that pregnancies depend on the availability of legal abortion but portrays the line of viability as arbitrary. “In terms of viability,” Roberts said when questioning Attorney General Elizabeth Prelogar, “I don’t see what that has to do with the question. of any choice. “
I almost died trying to have an abortion.  I am appalled that my students may face the same fate

Just eliminating the possibility would be a major blow to abortion rights. A decision to do so would encourage conservative states, push for a ban on abortion early in pregnancy, rewrite abortion laws, and create uncertainty about the future of abortion rights. pregnant. However, most conservative judges seem to want to go much further.

Perhaps unsurprisingly, Judges Clarence Thomas, Samuel Alito, and Neil Gorsuch seem inclined to overturn Roe at once. Thomas often wrote that Roe was wrong decision. On Wednesday, he pressed both Prelogar and Julie Rikelman, an attorney for the Jackson Women’s Health Foundation (the state’s only remaining abortion clinic), about where abortion rights come from.

Alito expressed skepticism about the way Roe derived the Fourteenth Amendment’s right to abortion, questioning whether “any judicial decision” at or shortly after the 1868 amendment was passed recognize that “abortion is a right”. Gorsuch suggested that if the Court allots viability, there is no other “understandable principle” for judges to follow other than inverting Roe.

The Court’s newest justices, Brett Kavanaugh and Amy Coney Barrett, appear poised to follow Thomas, Alito and Gorsuch in reversing Roe. Kavanaugh suggests that a better approach might be to declare that the Constitution is abortion-neutral — and that states can decide for themselves about abortion.

When questioned by Rikelman, he said that the Court was “forced by the position you are taking … to choose within the most controversial social debate in American life.” He suggested that the Constitution does not recognize “the right to choose or to live” – ​​and that the Court “should be strictly neutral on the issue of abortion, neither choice nor pro-life.”

Kavanaugh’s idea of ​​a compromise seems quite different from Roberts’s. Counterterrorism lawyers have argued that abortion itself is unconstitutional because the fetus is a constitutional right. Kavanaugh seems to want to rule out that possibility, at least for now. But his honest solution was not to delay precedent but to let about half of the states ban abortion.

Memorandum to protect abortion rights in the US

Amy Coney Barrett, another key vote, took aim at Rikelman’s argument that women rely on abortion to gain equal citizenship. Mississippi has insisted that if women need an abortion, they won’t do it anymore. Barrett seems to feel the same way. She introduced safe haven laws – allowing people to safely hand over unwanted babies (and without penalty) at designated locations like hospitals and fire stations – like a signal that women no longer need to have an abortion.

Roe and subsequent cases, she suggests, have focused on how forced parenthood “will hinder women’s access to the workplace and equal opportunities.” “Why doesn’t the safe-haven law address that?” Barrett asked Rikelman in an exchange. She suggests that pregnant people can simply choose to adopt and avoid any obstacles to achieving equal citizenship.

If you think that sounds like a Court is poised to overturn Roe, you’d be right.

A Roe reversal is likely to be unpopular – polls show Americans support a range of abortion-restrictive measures but want Preserve Roe. But the Court’s conservative majority has been handpicked (the culmination of Donald Trump’s pledge) to resist that kind of political pressure. In 1992, the Court was supposed to overturn Roe in a decision known as Planned Parenthood v. Casey, but when the time came, three Republican candidates, Sandra Day O’Connor, Anthony Kennedy and David Souter, refused to pull the trigger and vote to defend abortion rights.
Looks like there won’t be a Roe to save this time. The conservative legal movement perfected its vetting process, preparing judges for a natural interpretive approach that led to the conclusion that Roe sent. Presidents have turned down consensus nominations in favor of judges, who stimulated the base and were popular with voters. to the polls. The end result is a Court that appears poised to overturn Roe immediately, the political consequences of which would be devastating. And if the Court is no longer worried about the political backlash, there will be no announcement on what it will do next.


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