In other words, the court’s decision to address Roe v. Wade was the opposite of judicial activism. Friday’s ruling, meanwhile, was the epitome of judicial activism: A federal appeals court had blocked a law in Mississippi on the grounds that the ban on abortion after 15 weeks of pregnancy clearly violated Roe and Casey. (Those decisions protected the right to abortion until fetal viability, or about 24 weeks.) The state originally asked judges to rule whether a ban on abortion before viability was always unconstitutional. Beyond Chief Justice Roberts’ objection, the majority opinion went further, eliminating the right to abortion altogether.
In an agreement, the chief justice underlined how aggressive the majority opinion was, writing: “We must certainly adhere strictly to the principles of judicial restraint here, where the broader path the court takes is to reject a constitutional right that we have not only previously acknowledged, but also expressly affirmed the application of the doctrine of stare decisis.” He added that “his dramatic and consistent ruling is not necessary to decide the case for us.”
But Judge Alito rejected that call for restraint. “The chief justice’s quest for a middle ground would only postpone the day when we would be forced to face the question we are now deciding,” Justice Alito wrote. “The turmoil that Roe and Casey caused would continue. It is much better – for this court and the country – to face the real issue without further delay.”
There will certainly be unrest now, as the country’s highways are packed with women desperate to regain control of their lives and running out of time, perhaps followed by vigilantes across state lines. But the only turmoil Roe and Casey caused was due to the refusal of activists, politicians and Republican-appointed judges to accept the validity of the precedents. Judge Alito’s reference to “turmoil” reminded me of nothing more than Donald Trump’s invocation of “massacre” in his inaugural address. There was no massacre then, but there would be a massacre.
Forty-nine years is a long time, but my professional life is also a long one. I was a fresh reporter at The Times in 1969 when I was commissioned to write about the growing controversy over abortion. I dug into the matter, interviewed and learned from lawyers on both sides of the debate. On January 25, 1970, DailyExpertNews Magazine published my article under the headline “Constitutional Question: Is There a Right to Abortion?” It was, I believe, the first article in a public interest publication examining the nascent constitutional arguments, and it has been reprinted quite a lot. As I finished reading Friday’s conclusion in preparation for writing this essay, I realized that I will have chronicled this profound issue across the arc, a perspective I could never have foreseen.
Except, of course, that the story isn’t over yet. Although Judge Brett Kavanaugh stated with clear relief in his unanimous opinion that the court has now bowed out of the picture and “will no longer decide how the interests of the pregnant woman and the interests in protecting fetal life during pregnancy should be judged”, that is probably not the case. Those pesky women will keep coming up with problems: What about pregnancy-related medical problems without impending death? Rape? Incest? Fetuses doomed to die in the womb or shortly after birth? Will young teens be forced to bear children? Will women who receive a prenatal diagnosis of a serious fetal abnormality be forced to give birth to a child for whom they cannot adequately care and for whom the state has little postnatal interest? What happens if states start persecuting not only doctors but also women?
