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.
You didn’t answer her question, though. Survival skill? More seriously, my take (I did get to listen) is that there will be a mighty internal struggle between now and July. My other take is that there were a LOT of smart lawyers grappling in public with this issue. That it was aired live was itself a good thing, IMHO, because it gave any sentient, open-minded lay person listener a sense of the gravitas with which the Justices addressed the momentous challenge before them. (Or am I deluding myself about that unicorn-like listener?)
I’m sure there are open-minded lay people who listened to the argument and came to realize there are significant issues raised here. But I’m also sure there are far more people for whom this is an article of faith and the only thing they heard was whether a justice sounded as if he’s for or against, and that’s the only thing that matters.
Enjoy your unicorn.
The bell isn’t tolling just quite yet.
I think I adopt the John Hart Ely approach to Roe, but that’s really beside the point now isn’t it? The decision has been made for quite some time, and I would appreciate a more institutional approach from the Court than just “I wouldn’t have made that decision in 1973/1992”. Move to France if you want a fresh go every time.
Still, a far more difficult decision than it’s being painted as.
This will be valuable information when you become a Supreme Court justice or constitutional law is decided by referendum.
Any day now
That is a concern that Justice Roberts raised (“On stare decisis, I think the first issue you look at is whether or not the decision at issue was wrongly decided. I’ve actually never quite understood how you evaluate that. Is it wrongly decided based on legal principles and doctrine when it was decided or –or in retrospect?”). To some extent isn’t that a question of constitutional interpretation? Where I live (Canada), the court has explicitly taken a “living tree” approach. That allows the court to make changes to its interpretation of the constitution by citing the changing nature of societal mores. It also allows the court to side-step that thorny question.
I avoid reading tea-leaves (or auras, for that matter), but the questioning by the court certainly leaves the impression they were trying to tease out the best way to overrule Roe (and some of the other judges setting up for criticizing that decision). Reporters are not lawyers, and one doesn’t get readers by providing a nuanced discussion of the argument, but I am sympathetic to their belief regarding what might well happen.
You don’t read tea leaves but you’re sympathetic to those who do? Good to know.
You and LRB should start a blog where you tell readers your deepest feelings. Within minutes, both of you will be famous and fabulously wealthy. It will be huge!
SHG,
I no longer take abortion cases because on the same issue my decision on abortion was affirmed by the Court and, in a subsequent essentially identical case, later reversed by the Court when the makeup changed ’cause Sandy retired. The only material thing that changed was the composition of the Court.
I was and am sick of it. I recused from further abortion cases.
So, I now have blind trust in your wife. That is, ““so everybody else is wrong and you’re right?”
All the best, my dear friend. And the very best to your brilliant wife too!
RGK
I opined to a friend yesterday that I’m glad I’m not a judge, as it’s too hard to do it right. At the same time, I am painfully well aware of how much worse off we would be without judges deciding cases, even when they’re wrong.
Howl,
I’m a big Dead head, love “Jack-a-Roe”, and find this version an especially pleasant one. However, I’m missing the connection w/ the topic at hand.
If our esteemed host indulges me and allows this, would you care to enlighten me?
TIA
I’ll indulge you, but I’ll ask you: Is this really why SJ has comments? Is this a worthwhile use of my bandwidth?
I have not been paying much attention to this, but the talking heads at CBS this morning were positing the Court might uphold the challenged Mississippi law without a wholesale reversal of Roe, on the basis that it affords an adequate period for “choice.” Would this be a terrible, horrible, no-good result necessitating further days of shrieking? I assume probably so.
My post. What did it say?
That there is shrieking, but no decision yet.
SHG,
While alot of people look out the window for signs of weather change and dress accordingly please follow your gut and wait for the Television to deliver the news.
Analogies are great ways to make a point, but only if they’re not idiotic analogies.
Have you returned to your bad old ways of liberal tolerance of blithering idiots? What could possibly go wrong?
It’s ok, this is a pretty niche topic.
Thank you for approving, even if it’s with qualification.
The senate will decide your fate.
The benefit of forecasting that Roe will be reversed in such a big platform as the WaPo is that they win both ways.
If Roe is substantially restricted, WaPo’s predictions were correct. If it stands, WaPo can claim that it was because of the pressure it exerted.
You left out the benefit of working the insipid into a frenzy in the interim, lest they become complacent or consider other matters not as beneficial to the tribe. There are many incentives for WaPo to do this and few a lawyer to dispute it.
I think someone once said, “Shrieking alone there is, and many who shriek. Nirvana there is, but none who seek it. The path, but none who follow it.”
In Europe, most countries only allow abortions until 12 weeks and the Austrians, Belgians, Bulgarians, Croatians, Czechs, Danes, etc. seem to be okay with this. Fifteen weeks is hardly banning abortions.
For the same reasons other countries’ laws and ways tend not to apply well here when it comes to crim law, the same might be said for abortions. Our population is far more diverse. Our geographical area is much larger. Or perhaps the problem isn’t 15 weeks, per se, but the fact that it would be reduced from its current 24.
Will you be needing a place to stay?
It’s just a look, for crying out loud.
You’ve been married long enough to know that is how it starts.
Real nice court you got there – would be a shame if it made the wrong decision.
Yeah, that’s not the path to judicial legitimacy either. It’s almost as if anything the Court does now will give off a stench.
Whatever….
At the least, Mississippi and 15 weeks will stand.
If you disagree does a $10,000.00 bet to the charity of your or my choice plus a monthly Barleycorn post and a run of ten thousand “Amy the Womb Broker”* t-shirt’s interest you?
*Graphics to be determined and the Dr. can have a dozen for free.
Can’t risk a monthly Barleycorn post, which no one could stomach. More importantly, this isn’t to say what the court will decide, but that it hasn’t decided yet.
And it’s not exactly like your history with bets hasn’t had issues.
The only issue was a lack of communication on the last “bet” and nonetheless I yielded and paid…
You went out of your way to make that obtuse and infer otherwise.
Anyway, these obvious “high ground” bullshit posts are a disgrace.
Funny and all, but seriously you deserve a call and a look on this one, when you could and should have put forth a line drive to the left field gap with a factual synopsis of probability tying in your myriad of posts on the Roe decision in the past.
The obvious doesn’t make your audience any smarter…
So, I would be happy to call you on this one with an up-front leather jacket to be tailored to the winners’ desires if you pay for the Amy the Womb Broker patch design work.
You can raffle it off to who gets closet to the opinion*…. after you actually think a bit harder and put your probability onesie on, you might even win.
The Dr. will dig the jacket and the patch if you are too chicken to wear it out in public after the decision comes out this summer.
Uh huh.
Much as I enjoy trying to figure out what the hell you’re talking about and what drug you’re doing, it seems worthwhile to point out that when everyone around Scott is losing their head, he keeps his.
It is unclear whether you, on the other hand, have a head. But if you do, you lost it.
15 weeks in Mississippi. I feel a country and western song coming on.
Could be fun…
But do you really think the current Country Western fanbase is ready to learn that Alice Liddel, from Mississippi, is the Alice in Alice in Wonderland?
Definitely worth a try though!!!
I chuckled heartily at that mention of stench by the Wise Latina. Or is it Latinx? I’m not sure these days… Anyway, I guess she is unaware that said stench is actually emanating, like a penumbra, from the original results-based Blackmun decision. We’ve just been kicking its rotting carcass around for the past few decades. Were there an adult around, they would pick it up and put it in the trash can so the kids would quit fighting over it.
That decision has done more to harm the reputation of the Court than most anything that has followed, Obamacare notwithstanding, as I’m sure you’re well aware. Not sure the genie can be put back in the bottle at this point.