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July 7, 2022 [LINK / comment]

Supreme Court abortion ruling sets off firestorm

Ever since the leak of a draft opinion at the Supreme Court in early May, there has been little doubt that Roe v. Wade's days were numbered. The only question was how drastic the ruling would be. But any signicant diminution of abortion rights was was simply anathema to many people, and pro-choice activists immediately cried foul. The Democratic leaders in Congress (House Speaker Nancy Pelosi and Senate Majority Leader Chuck Schumer) even accused the conservative justices of having "ripped up the U.S. Constitution." ( Such a reaction seemed premature to me, given that there no official ruling had been made at that time, but their notion of what the Constitution actually is struck me as especially troubling. Granted, there is a strong tradition of respecting existing case precedent (more about the doctrine of stare decisis below), especially when it comes to decisions by the Supreme Court, but there have been numerous exceptions throughout U.S. history. Anyone who claims that any given Supreme Court ruling of the past has equal weight to the words contained in the Constitution itself is just not thinking clearly.

Supreme Court west 2022

The Supreme Court building on June 18, 2022 -- six days before the landmark ruling was announced. Note the recently-installed tall black steel fence in back of the standard "bicycle rack" barriers that are often used for crowd control.

Justices are menaced

The uproar that followed the leak soon escalated from mere harsh rhetoric to threats of physical violence. In early June, a California man named Nicholas John Roske was arrested near the home of Justice Brett Kavanaugh in Chevy Chase, Maryland, and was later charged with attempting to murder Kavanaugh. According to police, he was arrested while armed with a Glock-9 pistol, a knife, and tools used by burglars. ( The perpetrator was affiliated with left-wing political causes, affirming that he was trying to thwart the Supreme Court from making a ruling, but for some reason this story did not get as much national media attention as it probably should have.

In response, it was decided by Supreme Court Marshall* Gail Curley to beef up security around the Supreme Court building, which for many decades has served as a forum for peaceful dissenting voices. She also sent requests to top leaders in Maryland and Virginia to bolster the security of the homes of the nine Supreme Court justices. It is truly frightening that political activists think it is acceptable to harrass and intimidate the members of the Supreme Court and their families, and anyone who makes excuses for such actions is a subversive wretch. Just as the ugly barriers around the U.S. Capitol were slowly being scaled back and removed, as the prospect of a repeat insurrection à la January 6 diminished, the same such measures had to be taken to protect the nation's highest court of justice. It is another example of the ongoing polarization of U.S. society, and a reminder that the threat of political extremism exists on both sides of the political spectrum. Little by little, the fundamental democratic norm of respecting the rule of law and refraining from violence is coming undone.

Supreme Court NW, fence 2022

Behind this ominous fence is the Supreme Court building as seen from the northwest side. (June 18, 2022)

* I was previously unaware of this office.

The decision is reached

On Friday, June 24 the decision in the Dobbs v. Jackson Women's Health Organization case was made public, and it was immediately clear that the scope of the ruling was even wider than pro-choice advocates had feared or that pro-life advocates had hoped for. Just before noon, the major TV networks cut into their regular broadcasts, and for an hour or more reporters on the scene and legal analysts in the studios tried to make sense of it all. On Facebook there was an instantaneous flood of posts, either expressing jubilation or angrily condemning the decision. To me, that is one of the most disturbing signs of all, the fact that a large majority of people are so convinced that their own opinion is right that they were utterly blind to the tragedy that this ruling -- and ultimately, the Roe v. Wade decision itself -- has unleashed.

Many pro-choice advocates seem to revere the 1973 Roe v. Wade decision as though it were engraved in gold upon a stone tablet. Oddly, however, not many of them seem to understand the constitutional basis for that ruling, or they have not reflected upon what a weak legal foundation the opinion of nine robed men from a half century ago is. The original Roe v. Wade decision (just after Richard Nixon was sworn in for a second term as president) was based on a broad reading of the right to privacy, which was established by the Griswold v. Connecticut (1965) case. (That case dealt with access to contraceptives.) The First, Fourth, Fifth, Ninth, and Fourteenth Amendments were cited in Roe as collectively implying a right to abortion. Most people agree that there is an implied constitutional right to privacy, but it is by no means a certainty, and some people frankly disagree. (Some liberals have reacted with panic to the suggestion by Justice Clarence Thomas that other rights may be revisited on similar grounds.) The fact that the putative right to abortion has been derived from a right that is itself merely implied means that its legal foundation is tenuous at best, and at worst terribly weak. In sum, Roe went one big step too far.

The Supreme Court ruling (see, by a 6-3 vote, declared unequivocally that both the Roe and Planned Parenthood v. Casey (1992) decisions were wrong to assert that the Constitution confers the right to an abortion. Writing for the majority, Justice Samuel Alito emphasized that the Due Process Clause of the Fourteenth Amendment encompasses rights that are explicitly protected by the first eight amendments to the Constitution as well as those other rights that are "deeply rooted in [U.S.] history and tradition" and are essential to "ordered liberty." (The Ninth Amendment does allow for the existence of such rights, in effect erring on the side of freedom, thereby limiting the government's ability to control people.) In Alito's mind, the fact that there were virtually no state laws protecting abortion rights until the latter half of the 20th Century meant that it was not a well-established custom. This is true as a matter of law, but Alito somehow neglects that the Roe decision did in fact change social practices and attitudes, so much so that abortion became fairly routine by the following decade.

In his concurring opinion (about two-thirds the way to the end of the ruling cited above), Chief Justice Roberts expressed strong reservations about the extent of the ruling. He noted that the writ of certiori by which the Supreme Court accepted the Dobbs case noted that the plaintiff (the state of Mississippi) did not expect Roe v. Wade to be overturned as necessary to win its case. "Today, the Court nonetheless rules for Mississippi by doing just that. I would take a more measured course." Essentially, Roberts pleaded for judicial restraint, and I wholeheartedly agree with him about that. Just as Roe v. Wade went too far in establishing a nationwide right to abortion, provoking an inevitable backlash, so too the Dobbs decision went too far back in the opposite direction. The question is not whether there will be a backlash, but rather how strong it will be, and whether the Supreme Court's emphatic ruling will ultimately bring about unintended political consequences. Conservatives may come to rue the day that Roe v. Wade was overturned.

Writing for the Washington Post, Robert Barnes and Ann Marimow focused on Chief Justice Roberts' nuanced, rather anxious concurring summary. Even though he agreed that Roe was wrongly decided, he expressed fear that the issue would not go away, and that the ruling would perhaps not ultimately stand up. That's ironic, because the stare decisis principle (respecting case precedent) was basically cast aside by the other five justices in the conservative majority. For people with a certain, very firm set of moral standards, it is more important to be right than to be practical. That is why in the 1954 Brown v. Board of Education case the Supreme Court overruled the 1896 Plessy v. Ferguson ruling that "separate but equal" was consistent with the Fourteenth Amendment. Sometimes bad decisions are made, and they eventually have to be corrected. Was the Roe decision as bad as Plessy v. Ferguson? I don't think so.

Whereas most people argue this issue substantively on the basis of very dogmatic premises (e.g., that a woman has absolute autonomy over her body or that life begins at conception), such assertions frankly mean very little in practice. The biological process by which a fertilized egg transforms into a human being consists of gradual phases that simply cannot be defined with any degree of precision, and there will never be broad agreement. Can you tell the difference between a whale fetus or a pig fetus from a human fetus at three or four weeks gestation? I sure can't. Fetal development is a gray area, and there will never be a broad agreement over metaphysical concerns such as when a soul is created. Anyone on either side who insists that their view must be the basis upon which law is made is not only a bigot, but a dangerous authoritarian.

Instead, I strongly prefer to address this issue in procedural terms, minimizing the importance of difficult questions such as fetal viability and thus avoiding the harsh polemics expressed by the opposing factions. I am a radical pluralist, in the Madisonian tradition, with a sober, skeptical, and modest view about prospects for resolving such contentious issues as abortion. In other words, I accept as a permanent (or at least long-term) condition the deep divide between pro-choicers and pro-lifers and see the only possible way of effectively dealing with the issue is by devolving the decision-making process to a lower level.

Abortion rights: 50 states

One of the supposed advantages to the American semi-decentralized form of government known as federalism is that sharp differences of opinion based on particular cultural values or traditions can better be accommodated when states are allowed to exercise some discretion over policy. In other words, federalism is conducive to cultural diversity, a notion that has become something of a cliché in recent decades thanks to the "Culture Wars." This is the practical side of argument that abortion ought to be decided at the state level. In the class at Mary Baldwin University that I taught this past spring, we briefly discussed the wide variation among states in how they have handled abortion. After the semester was over, when the leak about the impending decision in the Dobbs case came out, I consulted a variety of sources to come up with the following map that attempts to summarize the legal situation across the country. It is one of the maps found on the new Comparative state politics page.

On a strictly personal level, I find the harshly vindictive laws banning virtually all abortions, such as those passed in Texas and Mississippi, to be quite detestable. Many thousands of women will suffer agonizing unwanted pregnancies as a result, and I do not see what good can come from compelling women to have unwanted babies. There are obviously deeper moral issues at stake here, and one cannot ignore the likelihood that the large number of abortions that have been performed every year is a sign of a spiritually unhealthy society. But the bottom line for me is that, when in doubt, trust the women to judge for themselves. More often than not, they are the victims.

State abortion laws May 2022

State abortion laws May 2022.

Supreme Court: 9 justices

On the 31st of June, Ketanji Brown Jackson was sworn in as the newest member of the U.S. Supreme Court, replacing Steven Breyer, who announced his intention to retire back in January. This marks the fourth new justice in the past five years, three of whom were nominated by former President Trump. One of the reasons for the ferocious wave of protests against the conservative majority is the widely-held notion that the Supreme Court has been taken over by right-wing extremists, and that this has been accomplished by devious or subversive means. We all know about the "Biden rule" by which then-Senate Majority Leader Mitch McConnell (R-KY) decided not to hold hearings for then-President Obama's nominee Merrick Garland in 2016. In 1992 then-Senator Joe Biden said that nominations for the Supreme Court should not be considered in a presidential election year, and there is a good reason for that. After Trump won the 2016 election (in an upset) Neil Gorsuch became the replacement for Antonin Scalia, a full year after Scalia had died. Then in 2018 Brett Kavanaugh replaced Anthony Kennedy (who had decided to retire), amidst fierce attacks on his character, which may or may not be well-founded. Personally, I thought that Trump should have asked Kavanaugh to step aside and let someone else be nominated. In any case, liberals were extremely angry over that. And then two years later the icing on the cake was when Ruth Bader Ginsberg passed away after months of cancer treatments, and Trump nominated Amy Coney Barrett. This was in the fall of 2020, in the middle of the presidential election campaign, and was obviously a direct contradiction of the "Biden rule." What did Senator McConnell say about that? Nothing. As a cynical ultra-pragmatist, being consistent with principles simply does not count for much. As a result, the Supreme Court shifted strongly to the right, and liberals went even more ballistic than they had been before. In this case, frankly, I can't blame them.

So now we are in a situation in which some Democrats are seriously suggesting that President Biden nominate additional members to the Supreme Court, to either restore some kind of balance, or else to impose a liberal / progressive majority by democratic fiat. Such a move would be a disaster for our country, and would further weaken respect for the rule of law. I earnestly hope that President Biden and the more sober-minded members of his party reject such advice. "Packing the court" would unleash a right-wing backlash that would make January 6 look like a picnic.

I drew up the following list of Supreme Court justices to call attention to a peculiar imbalance -- not a "red" (conservative) vs. "blue" (liberal) imbalance, but a Catholic vs. Protestant imbalance. Ever since the Republican Party began making political hay out of discontent among social conservatives (especially regarding abortion), every Supreme Court nominee has either been Catholic or (in the case of Neil Gorsuch) a Protestant with affinities toward Catholicism. If you want to know why the Supreme Court has taken such a strong stand on abortion, religious affiliation is an obvious answer. I have nothing against Catholics, and I respect sincere pro-life activists, but I am utterly appalled by the opportunistic mobilization of moral and religious sentiment on behalf of a partisan political agenda. That sort of practice only accentuates the trend toward polarization in our nation, and makes us all less trustful of our government and judicial institutions.

NameTitleYear beganNominated byReligion
John RobertsChief Justice2005G.W. BushCatholic
Clarence ThomasAssoc. Justice1991G. BushCatholic
Samuel AlitoAssoc. Justice2006G.W. BushCatholic
Sonia SotomayorAssoc. Justice2009ObamaCatholic
Elena KaganAssoc. Justice2010ObamaJewish
Neil GorsuchAssoc. Justice2017TrumpEpiscopalian *
Brett KavanaughAssoc. Justice2018TrumpCatholic
Amy Coney BarrettAssoc. Justice2020TrumpCatholic
Ketanji Brown JacksonAssoc. Justice2022BidenProtestant

* Gorsuch also attends Catholic services on occasion, so he may exemplify the "Anglo-Catholic" tendency within the Anglican Communion.

Final note: I have updated the Supreme Court page to include the name of Ketanji Brown Jackson, who was sworn in on June 31.

Posted (or last updated or commented upon): 07 Jul 2022, 7: 53 AM

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