My wife came home yesterday and told me that the guy on the radio said the Supreme Court reversed Roe v. Wade. I calmly told her they didn’t reverse anything, but held oral argument in Dobbs v. Jackson Women’s Health. She was unconvinced, so we turned on the news. It was a bit fuzzier, but made the clear point that it wasn’t “if,” but “how” the Supreme Court would reverse Roe. She gave me that face, the one that says “so everybody else is wrong and you’re right?”
I get that face a lot.
On twitter, the usual suspects twitted the expected predictions, that the dreaded six justice anti-abortion majority would do what the majority of Americans didn’t want it to do, were told it would do and were afraid it would do. Was this just anticipatory fear-mongering, a foundation upon which to launch a rehabilitation of the resistance by telling all the soccer moms who had enough of teachers telling their babies that the only thing that mattered was racism, but who might still be won over and brought back to the good side by the Supreme Court reminding them what would happen if they put the Republicans back in power?
Then I saw it in the Washington Post.
‘Roe’ is dead. The Roberts Court’s ‘stench’ will live forever.
The New York Times once had a headline, “GOD IS DEAD.” It was January 9, 1966. It was a bit premature. Can the same be said of Roe’s demise?
A deeply partisan majority on the Roberts Court is about to enshrine a new principle in American jurisprudence: Justice for he who yells the loudest.
If the new rule is “Justice for [they] who yells the loudest,” then it would seem Roe is untouchable.
The six Republican-appointed justices on the Supreme Court left no doubt in oral argument Wednesday that they would end the constitutional right to abortion that American women have had for nearly half a century. The court will either overturn Roe v. Wade outright or cripple the landmark ruling by eliminating the “fetal viability” standard at its core. Both would return us to a time before most people living ever knew, when state legislatures controlled women’s reproductive decisions.
Oral argument is like tea leaves to some. By the questions raised, or more to the point, the positions embodied in, if not outright argued, in the questions, the outcome can be divined. Some believe they can read the tea leaves so well that they can assert that it “left no doubt” as to the outcome.
The Supreme Court’s position here has been set up for a fall. If it reverses Roe and Casey, it will, as Justice Sotomayor argued when it was her turn to question, fulfill the prediction that the shift isn’t legal or medical, but personnel. And if so, then the legitimacy of the Court is dead.
Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?
The doctrine of stare decisis is an important one. On the one hand, it’s not that precedent can never be reversed. Plessy was, and we are certainly thankful for Brown v. Board of Ed. And lest anyone forget, that reversal was not universally supported at the time. In fact, it has caused great outrage, but it was the right decision. On the other hand, after Roe was decided, and then modified by Casey to make fetal viability the cut off point for the right to abortion, reversing a right established is a very different thing than establishing a right or expanding a right.
But the other mechanism by which the Court might murder Roe and Casey is by chipping away at its “fetal viability” line. The Mississippi law at issue cuts off the right to an abortion at 15 weeks. The argument for it is that it leaves enough time for a woman who wants an abortion to get one. The argument against it is that not all women know they’re pregnant at that stage, and that the law’s exceptions are too narrow.
But the real argument is that this is a law crafted to challenge the right to abortion by testing the limits. whether they can be reduced from 24-27 weeks to 15 weeks. And if 15, why not 12? Or 9? There is a serious question of why fetal viability is the correct constitutional line, but then, at least it’s a line with a rational basis. And more importantly, it’s a line that’s been established. What is needed to establish a line is different from what is needed to unestablish a line. Whether it’s the best line, or the right line, is not the issue once the line has been drawn. At that point, the burden shifts to why the line is constitutionally wrong.
There are many, and by many I include supporters of the policy that women should have the right to an abortion, and that the right to an abortion should be broad enough to cover the various arguments favoring it until fetal viability or the end of the second trimester, who simultaneously had serious doubts that Justice Blackmun’s opinion in Roe was principled and rationally sound.
But here we are, with decades of experience with the right established, with jurisprudence cognizant of it and based upon it, and a society that has come to understand it as a fundamental right. And still it remains as controversial, as filled with outrage, as ever.
Here’s whatever else is going on: “The court has never revoked a right that is so fundamental to so many Americans,” argued Biden administration solicitor general Elizabeth Prelogar, “and so central to their ability to participate fully and equally in society.”
Until now, that is. Roe is dead. It’s all over but the shouting.
It’s not over. There is no decision. When the Supreme Court issues its decision, then we will know what the decision will be. Until then, the only stench comes from those shouting that the outcome is a done deal.