The bloc of five judges that destroyed half a century of women’s abortion rights on Friday had melted together for less than two years. But they had found their moment and seized it.
This is the new US Supreme Court, acting fast, rejecting Chief Justice John Roberts’ incrementalism and disrupting individual privacy rights in an epic decision that will reverberate for decades.
No matter how much of a taste the country got when an early draft was leaked in May, the grandeur and bold tone of the final ruling is still breathtaking.
“Roe was hugely wrong from the get-go,” Judge Samuel Alito wrote when the majority jettisoned the 1973 Roe v. Wade decision, which made abortion legal nationwide. “The reasoning was exceptionally weak and the decision has had damaging consequences.”
The court overturned that landmark and a series of abortion rights decisions that followed, including the 1992 decision that reaffirmed Roe as senior judges and then declared in the majority that they may not have voted for Roe, but accepted the decision that was ingrained in them. the society.
“Our duty is to define everyone’s freedom, not to impose our own moral code,” Judge Sandra Day O’Connor said in 1992 when she and two other centrist conservatives, Anthony Kennedy and David Souter, held the key. to the preservation of Roe.
Their feeling, and that of most judges who have joined the Supreme Court since 1973, was that neither the country nor the court itself could go backwards. Institutional integrity and the respected principle of stare decisis, sticking to precedents, demanded this.
But that’s not this court. Today’s judges on the right are different from the Republican-appointed conservatives who first voted for Roe and then confirmed it, joined by judges on the left. Donald Trump’s three appointees, including Judge Amy Comey Barrett, who joined the bank in October 2020 and anchored Friday’s decision, have not hedged against abortion rights.
That majority opinion, rather than a woman’s right to choose what happens to her pregnancy, emphasized the interests of the fetus. “(A)bort is fundamentally different,” the five wrote, because it “destroys the life of the fetus.” Alito noted that the controversial Mississippi ban used the term “unborn human.”
O’Connor, who served from 1981 until her retirement in 2006, was the first female Supreme Court justice, and Barrett the fifth. During Barrett’s confirmation hearings, South Carolina GOP senator Lindsey Graham praised her openly anti-abortion sentiment, even though Barrett said she hadn’t anticipated the issue.
Regardless of what she promised or what Judge Brett Kavanaugh promised Republican Senator Susan Collins of Maine to secure her crucial vote for his confirmation in 2018, Friday’s decision would not have been possible without them. They succeed judges who had endorsed abortion rights, Kennedy and the late Ruth Bader Ginsburg.
sen. Collins said the judges would not overthrow Roe. See her reaction now
She, along with Judge Neil Gorsuch — who was appointed by Trump after President Barack Obama was blocked from occupying the seat of the late Judge Antonin Scalia — and longer-serving Alito and Clarence Thomas previewed Friday’s ruling last year when they voted together to allow a Texas ban on abortions at approximately six weeks of pregnancy to come into effect.
Their push to overturn Roe stands in stark contrast to the insistence of most previous GOP appointees, including Roberts, who, while opposed to abortion rights, has supported the precedent.
On Friday, when Roberts agreed to uphold a 15-week suspension in Mississippi, Roe must be upheld: “The Court’s decision to overrule Roe and Casey is a serious shock to the justice system — no matter how. you look at those cases. A scarier decision to dismiss the misguided viability line would be significantly less troubling, and nothing more is needed to decide this case.”
Even a ruling simply endorsing Mississippi’s 15-week abortion ban would have deeply moved Roe, because that decision and 1992 Planned Parenthood v. Casey prevented states from interfering with a woman’s right to terminate a pregnancy. before a fetus was viable. , could live outside the womb. Doctors say viability occurs after about 23 weeks.
Roberts reiterated his stance on Friday that “the viability line should be thrown out,” although he argued that Roe should not be overruled “all the way to the studs.”
The decision in Dobbs v. Jackson Women’s Health Organization has sparked a flurry of competing reactions: outrage among women’s rights advocates, particularly those concerned about women not having the means to travel to places where abortion would be legal. may remain under state law; and relief from religious and other conservative advocates who have been working for decades to roll back Roe.
And while the decision will shake the assumptions of women, families, medical providers, literally generations of Americans, it will certainly define today’s Supreme Court.
For nearly 50 years, the majority accepted a constitutional right to abortion and showed respect for precedents. The court had the right to terminate a pregnancy based on the 14th Amendment guarantee of personal liberty.
Dissenting judges warned that the five majority judges could go much further. “(N)someone needs to be confident that this majority is done with its job,” judges Stephen Breyer, Sonia Sotomayor and Elena Kagan wrote in a joint dissent. Recognizing the right Roe and Casey is not an isolated incident. Rather, the Court has for decades linked it to other established freedoms related to bodily integrity, family relationships and reproduction.”
Since 1973, when the court affirmed a significant right to privacy by 7-2 votes, 15 new judges have joined the bench. All but six voted to support Roe in some way, some vigorously, some reluctantly.
Five of those six now form the block that caused Roe’s downfall on Friday. They are also driving the Second Amendment Act, more mixing of church and state, and a reduction in regulatory authority. And this is likely to be the pattern for the foreseeable future.
Trump’s three appointees are also the youngest of the current nine. Barrett is 50, Gorsuch is 54 and Kavanaugh is 57.
Mississippi officials, in fact, recognized the right-wing thrust and potential for his cause. The state had initially asked the judges to review the 15-week abortion ban. But after the court accepted the case and the trend of the new conservative majority was apparent, Mississippi changed course and asked the judges to outright dismiss Roe and Casey.
Mississippi argued that, despite half a century of rulings, the Constitution does not protect the right to abortion. It was an argument that five of the current judges were clearly waiting to hear.
As Roberts wrote on Friday, “The Court is now rewarding that gamble.”