WASHINGTON — Friday’s Supreme Court decision to end the constitutional right to abortion ended a battle for now, but immediately raised another far-reaching question: whether the legal basis under rights in other personal matters, including birth control and same-sex marriage, should now also shaky.
The lack of a clear and consistent response among the vast majority of conservative Republican-appointed judges who control the Supreme Court has sparked fear on the left, and anticipation among some on the other side of the ideological divide, that the abortion decision may well be the would be the right decision. beginning of a sharp shift to the right on issues directly related to intimate personal choices.
Those reactions were fueled by Judge Clarence Thomas’s unanimous opinion, in which he explicitly said that precedents establishing those rights — which were based on the same legal reasoning as the now-annulled Roe v. Wade — should be reconsidered.
Judge Samuel A. Alito Jr.’s Majority Opinion was intended to be more reassuring to those who see a judicial attack coming on gay marriage and birth control. He stated that a ruling that the 14th Amendment — which prohibits the government from unfairly depriving people of liberty — does not protect abortion rights should not be seen as a danger unrelated to ending the lives of the victims. fetus. Yet its legal rationale implicitly called into question a series of such precedents.
The three dissenting liberals on the court said, essentially, don’t be fooled. “No one,” they said, “can trust that this majority is done with its work.”
They wrote that precedents set aside by the court—Roe v. Wade and Planned Parenthood v. Casey, a 1992 case that reaffirmed core parts of Roe—were part of the same “constitutional fabric” behind “fixed liberties related to bodily integrity, family relationships and reproduction.”
Then there was Judge Brett M. Kavanaugh, who sought to allay fears among abortion rights supporters of even tougher and more sweeping changes to come. According to him, states cannot constitutionally prohibit women from traveling to another state to have an abortion. Also, they couldn’t prosecute people for abortion until Friday’s ruling went into effect.
Friday’s opinion had the immediate effect of introducing laws that prohibit or severely restrict access to abortion in at least 20 states. But its implications for potential future abortion disputes and for many other rights promulgated by the Supreme Court since the second half of the 20th century could also be profound.
Over several generations, the modern court gradually ruled that a set of unwritten constitutional rights existed as part of the 14th Amendment. In addition to the right to abortion, the court declared involuntary sterilization and laws interfering with who people could choose to live or marry, along with decriminalizing birth control and same-sex intercourse.
The gist of Justice Alito’s majority opinion is that the 14th Amendment protects only unwritten rights that were already believed to exist in 1868, when it was passed. Many states then banned abortion, so it was wrong for the Supreme Court, in 1973’s Roe v. Wade, to interpret the 14th Amendment as a right to abortion, he reasoned.
The majority bloc in the abortion case — Justices Alito, Thomas, Kavanaugh, Neil M. Gorsuch, and Amy Coney Barrett — modestly posed as a way to relieve the Supreme Court of drawing lines about which regulations go too far with regard to the abortion issue. controversial topic. In Justice Alito’s view, as long as a state legislature has a “rational basis” for imposing a limit or ban on the proceeding, the courts will not intervene.
But in a blistering but impotent collective dissent, the court’s three remaining Democratic appointees — Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan — said the ruling would instead force the Supreme Court to delve further into hotly contested moral and philosophical issues. issues, listing a dozen examples of new questions.
Those include whether and when a state should allow exceptions for a woman’s life and health, what the ruling would mean for in vitro fertilization and miscarriage management, whether a state could ban advertising for abortions out of state, or could help women to come out. of-state clinics, and whether it could prevent women from traveling out of state or receiving abortion medications shipped by out-of-state pharmacies.
“The majority do not save judges from cumbersome tests and do not take them out of the atmosphere of controversy,” they wrote. “Rather, it rejects a known, workable and predictable standard in favor of something new and probably much more complicated.”
Against that background, Judge Kavanaugh’s unanimity was particularly important because he appears to be the median on abortion issues — meaning he controls the fifth vote that decides which party should get a majority in a closely divided case.
Besides thinking that states can’t prohibit residents from traveling to another state to have an abortion, Judge Kavanaugh strongly suggested he thinks the constitution requires an abortion ban to include an exception when that happens. needed to save a mother’s life.
The dissident judges outlined the prospect that the ruling wouldn’t prevent states that want to keep abortion legal from doing so as “cold comfort” for poor women in states that criminalize the procedures and don’t have the money to travel to another state.
Noting that “no language in today’s decision prevents the federal government from banning abortions nationwide, again from the moment of conception and with no exceptions for rape or incest,” they wrote that should that happen, women who want to have an abortion must fund travel. not to New York or California, but to Canada.
Friday’s ruling also had implications far beyond possible future legal battles over abortion, calling into question the whole host of judicial precedents that established unwritten rights as stemming from the 14th Amendment’s protection of liberty.
Political battles over judicial appointments often linger in abstractions: Conservatives and Republicans believe that the laws should be interpreted according to what their text originally meant. Liberals and Democrats tend to argue that the framers defined rights in general terms to allow for future evolution in their scope and meaning by applying them in new ways in response to new societal views and circumstances.
The ruling on abortion rights provided a concrete illustration: The three dissenting liberals acknowledged that no one believed there was a right to abortion in 1868, but also noted that women had no role in the ratification of the 14th Amendment because they would not be given the right to vote yet. half a century. Delineating the meaning of freedoms from the point of view of an outdated society, they said, gives women the status of second-class citizens.
Against the background of that debate, Judge Alito denied that the decision jeopardized other precedents in which the Supreme Court declared modern rights based on an evolving understanding of individual freedoms protected by the 14th Amendment — including birth control, sexual behavior with a member of the same gender or same-sex marriage.
He said abortion was different because it involved the destruction of the life of the fetus, which the state wanted to protect.
“To ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and not any other right,” he also wrote. “Nothing in this opinion should be understood to cast doubt on precedents not related to abortion.”
Even the conservative judges, however, indicated that they were in disagreement about how many shares should be put in that statement. At one end of the spectrum, Judge Thomas made no secret of his eagerness to go ahead and overturn those precedents, too.
He said he agreed with Judge Alito’s ruling insofar as it meant only abortion was specifically “at issue” in the case decided on Friday. But he went on to call on the court to clear, “as soon as possible,” all other cases that similarly reasoned that several unwritten rights are protected by the 14th Amendment due process clause.
At the other end of the spectrum was Chief Justice John G. Roberts Jr. agrees with majority that a law in Mississippi banning abortions after 15 weeks — with no exceptions for rape or incest, including for minors — should be enforced. But the chief justice, a long-time advocate of narrow-mindedness and incremental change, stated that his five fellow conservatives had already gone too far in overthrowing Roe v. Wade.
“The court’s opinion is thoughtful and thorough, but those virtues cannot compensate for the fact that its dramatic and consistent ruling is not necessary to decide the case for us,” he wrote.
Judge Kavanaugh, for his part, reiterated and emphasized Judge Alito’s claim that the court’s decision to override abortion precedents does not amount to ignoring precedents about birth control and interracial or same-sex marriages, “and does not threaten or question these precedents.” .”
The dissenting judges expressed disbelief at Judges Alito and Kavanaugh’s attempts to set abortion apart from precedents on issues such as birth control and same-sex intimacy and marriage. The bottom line, they wrote, was that the reasoning about the 14th Amendment and 1868 was the same for that whole constellation of statements.
“One of two things must be true,” they wrote. “Either the majority doesn’t really believe in its own reasoning. Or if so, any rights that have no history dating back to the mid-1800s are uncertain. Either the majority of opinion is hypocrisy, or additional constitutional rights are threatened. It’s one or the other.”